THE ROYAL BANK OF SCOTLAND plc THE ROYAL BANK OF SCOTLAND GROUP plc Underwriting Agreement [ ]% Senior Debt Securities Due _____
Exhibit
1.3
THE
ROYAL BANK OF SCOTLAND plc
THE
ROYAL BANK OF SCOTLAND GROUP
plc
$[ ]
[
]% Senior Debt Securities
Due
_____
__________
__, ____
[NAMES OF
REPRESENTATIVES]
Ladies
and Gentlemen:
From time
to time The Royal Bank of Scotland plc, a public limited company incorporated
and registered in Scotland, United Kingdom (the “Company”), and The Royal Bank
of Scotland Group plc, a public limited company incorporated and registered in
Scotland, United Kingdom (the “Group”), proposes to enter
into one or more Pricing Agreements (each a “Pricing Agreement”) in the
form of Annex I hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the several firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to
such Pricing Agreement and the securities specified therein), or to purchasers
procured by them, certain of the Company’s debt securities specified in Schedule
II to such Pricing Agreement (with respect to such Pricing Agreement, the “Securities”).
The terms
of, and rights attached to, any particular issuance of Securities shall be as
specified in the Pricing Agreement relating thereto and in or pursuant to a
senior debt securities indenture (the “Indenture”). The
offering of the Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement. The Securities will be entitled to the benefit of a full and
unconditional guarantee (the “Guarantees”) by the Group as
set forth in the Indenture, as delivered below, pursuant to which Group will
guarantee the obligations of the Company under the Securities.
1. Particular
sales of the Securities may be made from time to time to the Underwriters of
such Securities, or to purchasers procured by them, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the “Representatives”). The
term “Representatives”
also refers to a single firm acting as sole representative of the Underwriters
and to an Underwriter or Underwriters who act without any firm being designated
as its or their representatives. This Agreement shall not be
construed as an obligation of the Company or the Group to sell any of the
Securities or as an obligation of any of the Underwriters to purchase, or
procure purchasers for, the Securities. The obligation of the Company
and the Group to issue and sell any of the Securities and the obligation of any
of the Underwriters to purchase, or procure purchasers for, any of the
Securities shall be evidenced by the Pricing Agreement with
respect
to the Securities specified therein. Each Pricing Agreement shall
specify the aggregate principal amount of such Securities, the initial public
offering price of such Securities, the purchase price to the Underwriters of
such Securities, the names of the Underwriters of such Securities, the names of
the Representatives of such Underwriters and the principal amount of such
Securities to be purchased by each Underwriter, or by purchasers procured by
such Underwriter, and shall set forth the date, time and manner of delivery of
such Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the Registration
Statement (as defined below), the Disclosure Package (as defined below) and
prospectus with respect thereto) the terms of such Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of facsimile communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under
this Agreement and each Pricing Agreement shall be several and not
joint.
The
Company and the Group have prepared and filed with the Securities and Exchange
Commission (the “Commission”) an “automatic
shelf registration statement” as defined under Rule 405 under the U.S.
Securities Act of 1933, as amended (the “1933 Act”) on Form F-3 (No.
333-________ ) and related preliminary prospectus for the registration of, among
other securities, certain debt securities of the Company, including the
Securities and the Guarantees, in accordance with the provisions of the 1933
Act, and the rules and regulations of the Commission thereunder (the “1933 Act
Regulations”).
The
registration statement on Form F-3, as amended to the date on which it became
effective prior to the date of this Agreement (including any prospectus
supplement relating to the Securities and any other information, if any, deemed
to be part of such registration statement pursuant to Rule 430B of the 1933 Act
Regulations), and the prospectus constituting a part thereof (including in each
case all documents, if any, incorporated by reference therein to such date) are
hereinafter referred to as the “Registration Statement” and
the “Prospectus”,
respectively, except that if any revised prospectus or prospectus supplement
shall be provided to the Underwriters by the Company and the Group for use in
connection with the offering of the Securities which differs from the Prospectus
on file at the Commission at the time the Registration Statement became
effective (whether or not such revised prospectus is required to be filed by the
Company and the Group pursuant to Rule 424(b) of the 1933 Act Regulations), the
term “Prospectus” shall
refer to such revised prospectus or include such prospectus supplement, as the
case may be, from and after the time such revised prospectus or prospectus
supplement is first provided to the Underwriters for such use and if the Company
or the Group files any documents pursuant to Section 13, 14 or 15 of the U.S.
Securities Exchange Act of 1934, as amended (the “1934 Act”), after the
Registration Statement became effective and prior to the termination of the
offering of the Securities by the Underwriters, which documents are deemed to be
or, in the case of a Report on Form 6-K, are designated as being incorporated by
reference into the Prospectus pursuant to Form F-3 under the 1933 Act
Regulations, the term “Prospectus” shall refer to
said prospectus as modified to include the documents so filed from and after the
time said documents are filed with or furnished to the
Commission. The term “Preliminary Prospectus” means
any preliminary form of the Prospectus (including any preliminary prospectus
supplement) which is used prior to the filing of the Prospectus and first filed
with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. The term “Free Writing Prospectus” has
the meaning set forth in Rule 405 of the 1933 Act Regulations. The
2
term
“Issuer Free Writing
Prospectus” means (i) any material that satisfies the conditions set
forth in Rule 433 of the 1933 Act Regulations and (ii) any roadshow
presentation, including any Bloomberg roadshow presentation. The term “Disclosure Package” means (i)
the Preliminary Prospectus, (ii) any Issuer Free Writing Prospectuses identified
in Annex II hereto, (iii) the final term sheet prepared and filed pursuant to
Section 5(d) of this Agreement (the “Term Sheet”) and (iv) any
other Free Writing Prospectus that the parties hereto shall hereafter expressly
agree in writing to treat as part of the Disclosure Package.
“Applicable Time” means
[ ] p.m. (Eastern time) on the date hereof or such other time as
agreed by the Company, the Group and the Representatives.
2. Each
of the Company and the Group represents and warrants to, and agrees with, each
of the Underwriters as of the date hereof, as of the Applicable Time, and as of
the Time of Delivery referred to in Section 4 hereof that:
(a) (i)
An “automatic shelf registration statement” as defined under Rule 405 under the
1933 Act on Form F-3 (File No. 333-_____) in respect of the Securities has been
filed with the Commission not earlier than three years prior to the date hereof;
such registration statement, and any post-effective amendment thereto, became
effective on filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission, and no notice
of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act
has been received by the Company or the Group; (ii) No order preventing or
suspending the use of the Prospectus, any Preliminary Prospectus or any Issuer
Free Writing Prospectus has been issued by the Commission.
(b) (i)
The Disclosure Package does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (ii) any individual Issuer Free Writing Prospectus, when
considered together with the Disclosure Package, did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to statements
in, or omissions from, the Disclosure Package or any Issuer Free Writing
Prospectus made in reliance upon, and in conformity with, information furnished
to the Company or the Group in writing by any Underwriter through the
Representatives expressly for use in the Disclosure Package.
(c) The
Prospectus does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to statements
in, or omissions from, the Prospectus made in reliance upon, and in conformity
with, information furnished to the Company or the Group in writing by any
Underwriter through the Representatives expressly for use in the Registration
Statement or Prospectus,
3
provided, further, that the
representations and warranties in this subsection shall not apply to that part
of the Registration Statement that constitutes the Statement of Eligibility (the
“Form T-1”) under the
U.S. Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the
trustee (the “Trustee”).
(d) The
documents incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus, at the time they were filed with the
Commission or when they become effective, complied in all material respects with
the requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the “1934 Act
Regulations”) and, at each time the Registration Statement became
effective, the Registration Statement complied in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and any further documents deemed to be or, in the case
of a Report on Form 6-K, designated as being incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus, after the
date of this Agreement but prior to the termination of the offering of
Securities, will, when they are filed with or furnished to the Commission,
comply in all material respects with the requirements of the 1934 Act and the
1934 Act Regulations, and, when read together with the other information
included or incorporated in the Registration Statement, the Disclosure Package
and the Prospectus, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that the
representations and warranties in this subsection shall not apply to the Form
T-1 of the Trustee.
(f) The
audited consolidated financial statements of the Group for the years ended
December 31, ____, and December 31, ____, were prepared in accordance with
International Financial Reporting Standards and give a true and fair view (in
conjunction with the notes thereto) of the state of the Group and its
subsidiaries’ affairs as at such dates and of its profit and cash flows for the
years then ended[, and the unaudited consolidated financial statements of the
Group for the six month periods ended June 30, ____ and June 30, ____ have been
stated on a basis substantially consistent with that of the audited consolidated
financial statements included in the Registration Statement.]
(g) The
unaudited pro forma condensed combined financial information (the “Pro Forma Financial
Information”), comprising a balance sheet as at _____ and income
statements for the year ended _____ [and for the six months ended _____] and the
related notes included in the Prospectus, has been properly compiled on the
basis of the assumptions stated therein and the assumptions used in the
preparation of the Pro Forma Financial Information are reasonable.
(h) Since
the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Prospectus, except as otherwise set
forth or contemplated therein, there has been no material adverse change in the
4
condition,
financial or otherwise, or in the results of operations of the Company, Group
and any of their subsidiaries, together considered as one
enterprise.
(i) Each
of the Company and the Group (A) has been duly incorporated in, and are validly
registered under the laws of, Scotland; (B) has the requisite corporate power
and authority to execute and deliver this Agreement and the Pricing Agreement
and had the requisite corporate power and authority to execute and deliver the
Indenture, to issue the Securities and the Guarantees, and, in each case, to
perform its obligations hereunder and thereunder; (C) has the corporate power
and authority to own, lease and operate its properties and to conduct businesses
as described in the Disclosure Package and the Prospectus; (D) has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
or is subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; and (E) has duly authorized, executed
and delivered this Agreement and the Pricing Agreement and this Agreement and
the Pricing Agreement constitute the valid and legally binding agreement of the
Company or the Group, as the case may be, enforceable in accordance with their
terms, except as rights to indemnity or contribution may be limited by
applicable law and subject as to enforcement to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors’ rights generally and to general equity principles.
(j) National
Westminster Bank Plc (“NatWest”) has been duly
incorporated under the laws of England, has corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Disclosure Package and the Prospectus; and all of the issued and
outstanding ordinary share capital of NatWest is owned, directly or indirectly,
by the Company. ABN AMRO Holding N.V. (“ABN AMRO”) has been duly
incorporated under the laws of the Netherlands, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Disclosure Package and the Prospectus.
(m) The
Indenture has been duly qualified under the Trust Indenture Act and duly
authorized, executed and delivered by each of the Company and the Group and,
assuming due authorization, execution and delivery by the Trustee, will
constitute the legal, valid and binding obligation of each of the Company and
the Group, enforceable in accordance with its terms, subject as to enforcement
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights generally and to
general equity principles.
(n) The
forms of Securities and Guarantees have been duly authorized and established in
conformity with the provisions of the Indenture and, when the Securities have
been executed and authenticated in accordance with the provisions of the
Indenture and delivered to and duly paid for by the purchasers thereof, (i) the
Securities will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company and (ii) the Guarantees will be entitled
to the benefits of the Indenture and will be a valid and binding obligation of
the Group, each enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
5
applicability
relating to or affecting creditors’ rights and to general equity principles, and
will be entitled to the benefits of the Indenture.
(o) Each
of the Indenture, the Securities and the Guarantees will conform in all material
respects to the descriptions thereof contained in the Disclosure Package and the
Prospectus.
(p) All
consents, approvals, authorizations, orders and decrees of any court or
governmental agency or body of the United States, the United Kingdom or the
Netherlands, having jurisdiction over the Company and the Group required for the
consummation by the Company and the Group of the transactions contemplated by
this Agreement or the Pricing Agreement or to permit the Company or the Group to
effect interest payments in U.S. dollars on the Securities in accordance with
the terms of the Indenture have been obtained and are in full force and effect,
except as may be required by U.S. state securities laws (the “Blue Sky laws”).
(q) The
execution, delivery and performance of this Agreement, the Pricing Agreement and
Indenture, the allotment, issuance, authentication, sale and delivery of the
Securities and the Guarantees, and the compliance by the Company and the Group
with the respective terms thereof, and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a breach
under any agreement or instrument to which the Company or the Group is a party
or by which the Company or the Group is bound that is material to the Company,
the Group and their subsidiaries, taken as a whole, nor will such action result
in any violation of the provisions of the Memorandum and Articles of Association
of the Company or the Group or any statute or any order, filing, rule or
regulation of any United States, English, Scottish or Dutch court or
governmental agency or regulatory body having jurisdiction over the Company or
the Group.
(s) The
Company is not, and after giving effect to the offer and sales of the Securities
and application of the proceeds thereof as described in the Prospectus and the
Disclosure Package, will not be, required to register as an “investment
company”, as defined in the Investment Company Act of 1940, as
amended.
(t) No
event has occurred or circumstances arisen which (after the issuance of the
Securities) will constitute, or which, with the giving of notice and/or the
lapse of time would constitute, an Event of Default or a Default under the
Securities.
(u) There
is no action, suit, proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company or the Group, threatened against or affecting
the Company or the Group or any subsidiary, which is required to be disclosed in
the Registration Statement (other than as disclosed therein).
(v) (A)
(i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by post-effective
amendment,
6
incorporated
report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of
prospectus), and (iii) at the time the Company, the Group or any person acting
on their behalf (within the meaning, for this clause only, of Rule 163(c) under
the ▇▇▇▇ ▇▇▇) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the 1933 Act, the Group was a “well-known seasoned
issuer” as defined in Rule 405 under the 1933 Act; and (B) at the earliest time
after the filing of the Registration Statement that the Company, the Group or
another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the ▇▇▇▇ ▇▇▇) of the Securities, neither the Group nor the
Company was an “ineligible issuer” as defined in Rule 405 under the 1933
Act.
(w) Deloitte
LLP, who have certified certain financial statements of the Group and its
subsidiaries, and have audited the Group’s internal control over financial
reporting and management’s assessment thereof, are independent public
accountants as required by the 1933 Act and the rules and regulations of the
Commission thereunder.
(y) Neither
any Issuer Free Writing Prospectus nor the Term Sheet includes any information
that conflicts with the information contained in the Registration Statement, the
Disclosure Package and the Prospectus, including any document incorporated
therein or any prospectus supplement deemed to be a part thereof that has not
been superseded or modified; provided, however, that the
representations and warranties in this subsection shall not apply to statements
in, or omissions from, any Issuer Free Writing Prospectus or the Term Sheet made
in reliance upon, and in conformity with, information furnished to the Company
or the Group in writing by any Underwriter through the Representatives expressly
for use in the Issuer Free Writing Prospectus.
(z) None
of the Company, the Group, any of their subsidiaries or, to the knowledge of the
Company, or the Group, any director, officer, agent, employee or affiliate of
the Company or the Group, or any of their subsidiaries is currently included on
the U.S. Treasury Department’s List of Specially Designated Nationals or
otherwise subject to any U.S. sanctions administered by the U.S. Treasury
Department’s Office of Foreign Assets Control (“OFAC”); and the capital raised
by the issuance and sale of the Securities will not directly or indirectly be
lent, contributed or otherwise made available to:
(i) any
subsidiary, joint venture partner or other entity under the control of the
Company or the Group; or
(ii) to
the knowledge of the Company or the Group, any other person or
entity,
in each
case for the purpose of financing the activities of any person, entity, or
government currently subject to any U.S. sanctions administered by
OFAC.
3. Upon
the execution of the Pricing Agreement applicable to any Securities and
authorization by the Representatives of the release of such Securities, the
several Underwriters propose to offer such Securities for sale upon the terms
and conditions set forth in the Prospectus (as amended or
supplemented).
7
4. The
Securities to be purchased by each Underwriter and/or by purchasers procured by
such Underwriter pursuant to the Pricing Agreement relating thereto, in the form
specified in such Pricing Agreement, and registered in such names as the
Representatives may request upon at least forty-eight hours’ prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriters, against payment by the
Underwriters, or by the Representatives on behalf of the Underwriters, of the
purchase price therefor by wire transfer of immediately available funds to an
account designated by the Company as specified in the Pricing Agreement, all in
the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the “Time of Delivery”
for such Securities.
5. Each
of the Company and the Group agrees with each of the Underwriters of any
Securities that:
(a) The
Company or the Group will notify the Representatives immediately on becoming
aware of (i) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information relating to the Registration Statement or the offering of the
Securities, and (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any order preventing or
suspending the use of any Preliminary Prospectus or other Prospectus in respect
of the Securities, or the issuance by the Commission of any notice of objection
to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the 1933 Act or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or the
initiation of any proceedings for that purpose. The Company or the Group will
make every reasonable effort to prevent the issuance of any such stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) If
at any time prior to the filing of a final prospectus pursuant to Rule 424(b) of
the 1933 Act Regulations, any event occurs as a result of which the Disclosure
Package would then include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, the
Company or the Group will (i) promptly notify the Representatives so that any
use of the Disclosure Package may cease until it is amended or supplemented;
(ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any such amendment or supplement to the Underwriters
in such quantities as they may reasonably request.
(c) The
Group will, for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 or
Rule 173(a) of the 1933 Act Regulations), file promptly all reports required to
be filed by the Group with the Commission pursuant to Section 13(a), 13(c) or
15(d) of the 1934 Act and will give the Representatives notice of its intention
to file any amendment to the Registration Statement or any amendment or
supplement to the Disclosure Package or the Prospectus
8
(including
any prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Securities which differs from the
Prospectus, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations) and will furnish the
Representatives with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement or use any such prospectus
without prior consultation with the Representatives.
(d) The
Company or the Group will prepare the Term Sheet, containing solely a
description of the final terms of the Securities and the offering thereof, in a
form approved by the Representatives and will file the Term Sheet not later than
the time required by Rule 433(d) of the 1933 Act Regulations.
(e) The
Company or the Group will prepare the Prospectus in relation to the Securities
and file such Prospectus pursuant to Rule 424(b) of the 1933 Act Regulations not
later than the time required by Rule 424(b) of the 1933 Act Regulations
following the execution and delivery of the Pricing Agreement relating to the
Securities.
(f) The
Company or the Group will deliver to each Representative a conformed copy of the
Registration Statement as originally filed, and of each amendment thereto
(including exhibits and documents filed therewith or incorporated by reference,
as the case may be, into the Registration Statement).
(g) The
Company or the Group will furnish the Underwriters with copies of the
Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus
(including, in each case, any supplement thereto) in such quantities as the
Representatives may from time to time reasonably request, and will use all
reasonable efforts to make the initial delivery of the Prospectus by no later
than 9:00 a.m. on the second business day prior to the Time of Delivery and, if
the delivery of a Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the ▇▇▇▇ ▇▇▇) is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with the
offering and sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered
(or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act),
not misleading, or, if for any reason it shall be necessary during such period
to amend or supplement the Prospectus, or to file under the 1934 Act any
document incorporated by reference in the Prospectus, in order to comply with
the 1933 Act, notify the Underwriters and upon the Representatives’ request
prepare and furnish without charge to each Underwriter as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is required to
deliver a Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)
under the ▇▇▇▇ ▇▇▇) in connection with sales of the Securities (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 or
173(a) of the 1933 Act Regulations) at any time nine months or more after the
time of issue of the
9
Prospectus,
upon the Representatives’ request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as the Representatives
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the 1933 Act.
(h) The
Company or the Group shall at the reasonable request of the Underwriters at any
time prior to the completion (in the view of the Underwriters) of distribution
of the Securities, amend or supplement the Prospectus in order to comply with
applicable law or the requirements of the [Luxembourg Stock Exchange] [London
Stock Exchange] and deliver to the Underwriters from time to time as many copies
of the relevant amendment or supplement as the Underwriters may reasonably
request.
(i) Each
of the Company and the Group agrees that, unless it has obtained or will obtain
(as the case may be) the prior written consent of the Representatives, and each
Underwriter, severally and not jointly, agrees with the Company that, unless it
has obtained or will obtain (as the case may be) the prior written consent of
the Company and the Group, it has not made and will not make any offer relating
to the Securities that would constitute an Issuer Free Writing Prospectus or
Free Writing Prospectus required to be filed by the Company with the Commission
or retained by the Company under Rule 433 of the 1933 Act Regulations, other
than information contained in the Term Sheet, provided, however, that the
prior written consent of the parties hereto shall be deemed to have been given
in respect of the Free Writing Prospectuses included in Annex II hereto. Any
such free writing prospectus consented to by the parties is hereinafter referred
to as a “Permitted Free Writing
Prospectus.” Each of the Company and the Group agrees that (i)
it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and
will comply, as the case may be, with the requirements of Rules 164 and 433 of
the 1933 Act Regulations applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record
keeping.
(j) Each
of the Company and the Group agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which
such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Disclosure Package or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company and the Group will
give prompt notice thereof to the Representative and, if requested by the
Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided, however, that this representation and
warranty shall not apply to any statements or omissions in an Issuer Free
Writing Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company or the Group by an Underwriter through the
Representatives expressly for use therein.
10
(k) The
Company or the Group will endeavour to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and will maintain such
qualifications for as long as the Representatives shall reasonably request;
provided
that in connection with any such qualification none of the Company or the Group
shall be required to qualify as a foreign corporation in any such jurisdiction
or to file a general consent to service of process in any such
jurisdiction.
(l) The
Group will make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement, an earnings statement of the Group and its
subsidiaries on a consolidated basis (which need not be audited) complying with
Section 11(a) of the 1933 Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158 of the 1933 Act
Regulations).
(m) During
the period beginning from the date of the Pricing Agreement for such Securities
and continuing to and including the Time of Delivery, the Company and the Group
will not offer, sell, contract to sell or otherwise dispose of any securities of
the Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Securities (other than (i) the
Securities, (ii) securities previously agreed to be sold by the Company and the
Group and (iii) commercial paper issued in the ordinary course of business),
except as otherwise may be provided in this Agreement, without the prior written
consent of the Representatives, which consent shall not be unreasonably
withheld.
(n) Unless
the Pricing Agreement provides otherwise, prior to the first payment due under
the terms of the Securities, the Securities will be listed on a “recognised
stock exchange” within section 1005 of the Income Tax ▇▇▇ ▇▇▇▇; as soon as
practicable, application will be made to list the Securities on such recognised
stock exchange.
(o) The
Company will apply the net proceeds from the sale of the Securities as set forth
in the Prospectus.
(p) Each
of the Company and the Group will cooperate with the Underwriters and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of The Depository Trust Company (“DTC”), Euroclear Bank SA/NV,
as operator of the Euroclear System or Clearstream Banking, sociéte anonyme, as the case
may be.
(q) Prior
to the issuance of the Securities and Guarantees, the Company and the Group will
have obtained all consents, approvals, authorizations, orders, registrations,
qualifications and decrees of any court or governmental agency or body of the
United States and the United Kingdom necessary or required for the valid
issuance of the Securities and Guarantees and to permit the Company to make
interest payments on the Securities in U.S. dollars.
11
6. The
Company will pay all expenses incident to the performance of its obligations
under this Agreement, any Pricing Agreement, the Indenture, the Securities, and
the Guarantees
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, any Issuer Free Writing
Prospectus, the Prospectus and any related preliminary prospectus (and any
amendments or supplements thereto) and the cost of furnishing copies thereof to
the Underwriters; (ii) the printing, if any, of this Agreement, the Pricing
Agreement, the Indenture and the Blue Sky Survey; (iii) the printing or
reproduction, preparation, issuance and delivery of the certificates, if any,
for the Securities to (or at the direction of) the Underwriters, including any
transfer or other taxes or duties payable upon the delivery of the Securities to
a custodian for DTC, Euroclear Bank SA/NV, as operator of the Euroclear System
or Clearstream Banking, sociéte anonyme, as the case may be, or the sale of the
Securities to the Underwriters; (iv) the fees and disbursements of the Company’s
counsel and accountants; (v) the qualification of the Securities under the
applicable securities laws in accordance with the provisions of Section 5(j)
hereof, including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith in an aggregate amount not in excess of
$5,000 with respect to a particular issue of the Securities and in connection
with the preparation of any Blue Sky Survey and any Legal Investment Survey;
(vi) the delivery to the Underwriters of copies of such Blue Sky Survey, if any;
(vii) any costs, fees and charges of any paying agent appointed under the
Indenture; (viii) all expenses and listing fees in connection with the listing
of the Securities, if any, on any stock exchange and the clearance and
settlement of the Securities through the facilities of DTC, Euroclear Bank
SA/NV, as operator of the Euroclear System or Clearstream Banking, sociéte
anonyme, as the case may be; (ix) any fees charged by securities rating services
for rating the Securities; (x) the fees and expenses incurred in connection with
the filing of any materials with the Financial Industry
Regulatory Authority (“FINRA”), if any; (xi) any fees associated with a
Bloomberg roadshow presentation; (xii) any United Kingdom stamp duty, stamp duty
reserve tax or similar tax or duty imposed by the United Kingdom or any
political subdivision thereof upon the original issuance by, or on behalf of,
the Company of the Securities, the initial delivery of the Securities, the
deposit of the Securities with a custodian for DTC, Euroclear Bank SA/NV, as
operator of the Euroclear System or Clearstream Banking, sociéte anonyme, as the
case may be, the purchase by the Underwriters of the Securities, the sale and
delivery of the Securities by the Underwriters to the initial purchasers
thereof, and the execution and delivery of this Agreement, the Pricing Agreement
and the Indenture; (xiii) the fees and expenses of the Trustee and any
authorized agent of the Trustee, and the reasonable fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities; and
(xiv) any value added taxes payable in the United Kingdom in respect of any of
the above expenses.
If this
Agreement is terminated by the Representatives in accordance with the provisions
of Section 7 or Section 11(a)(i) (v), and (ix) hereof, the Company shall
reimburse the Underwriters for their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, except that
in the case of a termination in accordance with Section 11(a)(i) (v), and (ix)
hereof, such reimbursement shall include only any expenses actually incurred
(not to exceed $[ ]).
7. The
obligations of the Underwriters of any Securities under the Pricing Agreement
relating to such Securities shall be subject, in the discretion of the
Representatives, to the condition that all representations and warranties of the
Company and the Group in or incorporated by reference in the Pricing Agreement
relating to such Securities are, at and as of the Time of Delivery for such
Securities, true and correct, the condition that the Company and the Group
shall have performed all of their obligations hereunder theretofore to be
performed, and the following additional
conditions:
12
(a) The
Registration Statement is effective and at the Time of Delivery no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission and no notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the 1933 Act should have been received. The Prospectus shall
have been transmitted to the Commission for filing pursuant to Rule 424(b) of
the 1933 Act Regulations within the time period prescribed by Rule 424(b) of the
1933 Act Regulations; the Term Sheet and any other material required to be filed
by the Company or the Group pursuant to Rule 433(d) of the 1933 Act Regulations
shall have been transmitted to the Commission for filing pursuant to Rule 433(d)
of the 1933 Act Regulations; and, in each case, prior to the Time of Delivery
the Company shall have provided evidence satisfactory to the Representatives of
such timely filing; and no stop order suspending or preventing the use of the
Prospectus or any Issuer Free Writing Prospectus shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission have been complied with.
(b) At
the Time of Delivery, the Representatives shall have received:
(i) The
opinion and 10b-5 letter, each, dated as of the Time of Delivery, of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company and the Group, with respect to
the matters set forth in Annex III hereto in form and substance reasonably
satisfactory to the Representatives.
(ii) The
opinion, dated as of the Time of Delivery, of Dundas & ▇▇▇▇▇▇ ▇▇ LLP,
Scottish solicitors to the Company and the Group, with respect to the matters
set forth in Annex IV hereto in form and substance reasonably satisfactory to
the Representatives.
(iii) The
opinion, dated as of the Time of Delivery, of Linklaters LLP, English solicitors
to the Company and the Group, with respect to the matters set forth in Annex V
hereto in form and substance reasonably satisfactory to the
Representatives.
(iv) The
opinion and 10b-5 letter, each dated as of the Time of Delivery, of Shearman
& Sterling LLP, counsel for the Underwriters, with respect to the matters
set forth in Annex VI hereto in form and substance reasonably satisfactory to
the Representatives.
(c) The
independent accountants of the Company and the Group who have certified the
financial statements of the Group and its subsidiaries included or incorporated
by reference in the Registration Statement, the Disclosure Package and the
Prospectus (the “Independent
Accountants”) shall have furnished to the Representatives a letter,
delivered at a time prior to the execution of the Pricing Agreement and dated
the
13
date of
delivery thereof, with regard to matters customarily covered by accountants’
“comfort letters” and otherwise in form and substance satisfactory to the
Representatives.
(d) The
Independent Accountants shall have furnished to the Representatives a letter,
dated at the Time of Delivery, to the effect that it reaffirms the statements
made in the letter furnished pursuant to Section 7(c), except that the specified
“cut-off” date referred to therein shall be a date not more than three business
days prior to the Time of Delivery.
(e) If
required pursuant to the Pricing Agreement, an application shall have been made
for listing the Securities on the [Luxembourg Stock Exchange] [London Stock
Exchange].
(f) At
the Time of Delivery (1) there shall not have been, since the date of the
Pricing Agreement or since the respective dates as of which information is given
in the Registration Statement, the Disclosure Package and the Prospectus, except
as otherwise set forth or contemplated therein, any material adverse change in
the condition, financial or otherwise, or in the results of operations of the
Group and its subsidiaries considered as one enterprise, and (2) the
Representatives shall have received a certificate of each of the Company and or
the Group executed on its behalf by an officer of the Company, or Group as the
case may be, dated as of the Time of Delivery, to the effect that (i) the
representations and warranties in Section 2 hereof are true and correct in all
material respects as though expressly made at and as of the Time of Delivery;
(ii) it has complied in all material respects with all agreements hereunder and
satisfied in all material respects all conditions on its part to be performed or
satisfied hereunder at or prior to the Time of Delivery; and (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued and,
to its knowledge, no proceedings for that purpose have been initiated or
threatened by the Commission.
(g) The
Company shall have furnished to the Underwriters a certificate, dated the Time
of Delivery, of a deputy secretary of the Company, stating that to the best
knowledge and belief of the deputy secretary signing such certificate after
reasonable inquiry, the issue and sale of the Securities in the manner
contemplated in the Disclosure Package and Prospectus do not and will not result
in a breach, default or acceleration of any payment or amount under any
contract, agreement or undertaking to which the Company or any of its
subsidiaries is a party (or by which any such entity is bound), which breach,
default or acceleration would have a material adverse effect on the Group and
its subsidiaries taken as a whole.
(h) [There
shall not have occurred any lowering of the rating of any of the Company’s or
the Group’s securities by ▇▇▇▇▇’▇ Investors Service, Inc., Standard & Poor’s
Rating Services, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or Fitch
Ratings, Inc.]
(i) If
an affiliate (as defined in applicable NASD rules) of the Company is
participating in the offering of the Securities, FINRA shall not have raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
14
If any
condition specified in this Section 7 shall not have been fulfilled when and as
required to be fulfilled and not otherwise waived by the Underwriters, this
Agreement may be terminated by the Representatives by notice to the Company or
the Group at any time at or prior to the Time of Delivery, and such termination
shall be without liability of any party to any other party except as provided in
Section 6 hereof. Notwithstanding any such termination, the provisions of
Sections 6, 8, 10 and 14 herein shall remain in effect.
8. (a) The
Company and the Group agree to indemnify and hold harmless each Underwriter,
each of the Underwriters’ affiliates, directors, officers and employees, and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the information deemed to be part of the Registration Statement
pursuant to Rule 430A(b) of the 1933 Act Regulations or, if applicable, or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, the Preliminary Prospectus, the Term Sheet, any
Issuer Free Writing Prospectus or any related preliminary prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company and the Group;
and
(iii) against
any and all expense whatsoever, as reasonably incurred (including, subject to
Section 8(c) hereof, the fees and disbursements of counsel chosen by the
Representatives), in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under clause (i) or (ii)
above;
15
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company or the Group by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), the Prospectus, the Preliminary Prospectus, the Term Sheet,
any Issuer Free Writing Prospectus or any related preliminary prospectus (or any
amendment or supplement thereto).
(b) Each
Underwriter severally agrees to indemnify and hold harmless each of the Company,
the Group, their directors, each of the officers of the Company and the Group
who signed the Registration Statement, the Company’s or the Group’s authorized
representative in the United States and each person, if any, who controls the
Company or the Group within the meaning of Section 15 of the 1933 Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 8 as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), the
Prospectus, any related preliminary prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company or the Group by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto), or
the Prospectus or such preliminary prospectus (or any amendment or supplement
thereto).
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement.
(d) Any
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. In the case of
parties indemnified pursuant to Section 8(a) above, counsel to the indemnified
parties shall be selected by the Underwriters, and, in the case of parties
indemnified pursuant to Section 8(b) above, counsel to the indemnified parties
shall be selected by the Company or the Group. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified
party. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and
16
(ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(e) If
the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Group on the one hand and the Underwriters of the
Securities on the other from the offering of the Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall, if permitted by
applicable law, contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and the Group on the one
hand and the Underwriters of the Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Group on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts, concessions and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Group on the one hand or such Underwriters on the other and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Group and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Securities in this
17
subsection
(d) to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(f) The
obligations of the Company and the Group under this Section 8 shall be in
addition to any liability which the Company and the Group may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and the Group and to each person, if any, who controls the Company or
the Group within the meaning of Section 15 of the ▇▇▇▇ ▇▇▇.
9. If
one or more of the Underwriters shall fail at the Time of Delivery to purchase
the Securities which it is or they are obligated to purchase under this
Agreement and the Pricing Agreement (the “Defaulted Securities”), the
Representatives shall have the right, within 36 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase, or procure purchasers for, all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; provided, however, that if the Representatives shall
not have completed such arrangements within such 36-hour period,
then:
(a) if
the number of Defaulted Securities does not exceed 10% of the Securities which
the Underwriters are obligated to purchase at the Time of Delivery, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations under
the Pricing Agreement relating to such Securities bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if
the number of Defaulted Securities exceeds 10% of the Securities which the
Underwriters are obligated to purchase or procure purchasers for at the Time of
Delivery, the Pricing Agreement relating to such Securities shall terminate
without liability on the part of any non-defaulting Underwriter.
No action
taken pursuant to this Section 9 shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default which does not result in a termination of the relevant
Pricing Agreement, any of the Representatives, the Company or the Group shall
have the right to postpone the Time of Delivery for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
10. All
representations, warranties and agreements contained in this Agreement and any
Pricing Agreement, or contained in certificates of officers of the Company or
the Group submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of
the Company or the Group, and shall survive delivery of the Securities to the
Underwriters pursuant to this Agreement.
18
11. (a) The
Representatives may terminate this Agreement, immediately upon notice to the
Company and to the Group, at any time prior to the Time of Delivery (i) if there
has been, since the date of the Pricing Agreement or the respective dates as of
which information is given in the Registration Statement, the Disclosure Package
and the Prospectus, except as otherwise set forth or contemplated therein, any
material adverse change in the condition, financial or otherwise, or in the
results of operations, of the Group and its subsidiaries considered as one
enterprise, or (ii) if there has occurred any outbreak or escalation of
hostilities involving the United States or the United Kingdom or the declaration
by the United States or the United Kingdom of a national emergency or war, or
(iii) the occurrence of another calamity or crisis or any change in financial,
political or economic conditions or currency exchange rates or controls in the
United States, the United Kingdom or elsewhere, if the effect of any such event
specified in clause (ii) and (iii) in the judgment of the Representatives (after
consultation with the Company and the Group if practicable) makes it
impracticable or inadvisable to market the Securities or enforce contracts for
the sale of the Securities in the manner contemplated in the Prospectus, or (iv)
if there has occurred a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, London Stock Exchange or
any other stock exchange on which the Group’s securities are listed, or (v) if
there has occurred a suspension or material limitation in trading the Company’s
or the Group’s securities on the New York Stock Exchange or the London Stock
Exchange, or (vi) if there has occurred a material adverse change in the
financial markets in the United States or in the international financial
markets, or (vii) if a banking moratorium on commercial banking activities has
been declared by the relevant authorities in New York or London, or a material
disruption in commercial banking or securities settlement or clearance services
in the United States or the United Kingdom has occurred, or (viii) if there has
occurred a change or development involving a prospective change in the United
States or the United Kingdom taxation which has, or will have, a material
adverse effect on the Company or the Group or the Securities or the transfer
thereof, or (ix) if there is any lowering of the rating of any of the Group’s
debt securities, preference shares, American depositary shares representing
preference shares or American depositary receipts evidencing American depositary
shares representing preference shares, or a public announcement that such rating
is under surveillance or review, with possible negative implications, in each
case, by ▇▇▇▇▇’▇ Investors Service, Inc., Standard and Poor’s Rating Services, a
division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or Fitch, Inc.
(b) If
this Agreement is terminated pursuant to Sections 7, 9 or 11 hereof, such
termination shall be without liability of any party to any other party except as
provided in Section 6 or Section 9 hereof. Notwithstanding any such termination,
the provisions of Sections 6, 8, 10 and 14 shall remain in effect.
12. In
all dealings hereunder, the Representatives of the Underwriters of the
Securities shall act on behalf of each of such Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by such Representatives
jointly or by such of the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
19
All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Underwriters shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Representatives as set forth in the Pricing
Agreement; and if to the Company or the Group shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company or the Group
set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This
Agreement and any Pricing Agreement shall each inure to the benefit of and be
binding upon the Underwriters, the Company and the Group and their respective
successors. Nothing expressed or mentioned in this Agreement or any Pricing
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Group and their
respective successors and the controlling persons and officers, directors and
authorized representative of the Company and the Group referred to in Section 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any Pricing Agreement or any
provision herein or therein contained. This Agreement and any Pricing Agreement
and all conditions and provisions hereof and thereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and the Group and
their respective successors, and said controlling persons and officers,
directors and authorized representative of the Company and the Group and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
14. (a) Each
of the Company and the Group irrevocably consents and agrees, for the benefit of
the Underwriters, that any legal action, suit or proceeding against it with
respect to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement or the Pricing Agreement may be brought in the
courts of the State of New York or the courts of the United States of America
located in the Borough of Manhattan, The City of New York and hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each such court in
personam,
generally and unconditionally with respect to any action, suit or proceeding for
itself and in respect of its properties, assets and revenues.
(b) Each
of the Company and the Group hereby irrevocably designates, appoints, and
empowers ▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer, Citizens Financial Group, Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, as its designee,
appointee and agent to take process, receive and forward process or to be served
with process for and on its behalf of any and all legal process, summons,
notices and documents which may be served in any such action, suit or proceeding
brought in any such United States or State court which may be made on such
designee, appointee and agent in accordance with legal procedures prescribed for
such courts. If for any reason such designee, appointee and agent hereunder
shall cease to be available to act as such, the Company and the Group agree to
designate a new designee, appointee and agent in The City of New York on the
terms and for the purposes of this Section 14 satisfactory to the
Representatives. The Company and the Group further hereby irrevocably consents
and
20
agrees to
the service of any and all legal process, summons, notices and documents out of
any of the aforesaid courts in any such action, suit or proceeding by serving a
copy thereof upon the relevant agent for service of process referred to in this
Section 14 (whether or not the appointment of such agent shall for any reason
prove to be ineffective or such agent shall accept or acknowledge such service)
or by mailing copies thereof by registered or certified air mail, first class,
postage prepaid, to each of them at their respective addresses specified in or
designated pursuant to this Agreement. The Company and the Group agrees that the
failure of any such designee, appointee and agent to give any notice of such
service to it shall not impair or affect in any way the validity of such service
or any judgment rendered in any action or proceeding based thereon. Nothing
herein shall in any way be deemed to limit the ability of any Underwriter to
serve any such legal process, summons, notices and documents in any other manner
permitted by applicable law or to obtain jurisdiction over the undersigned or
bring actions, suits or proceedings against the undersigned in any
jurisdictions, and in any manner, as may be permitted by applicable law. The
Company and the Group hereby irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection which they may now or hereafter
have to the laying of venue of any of the aforesaid actions, suits or
proceedings arising out of or in connection with this Agreement or the Pricing
Agreement brought in the United States federal courts or the courts of the State
of New York located in the Borough of Manhattan, The City of New York and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
15. Each
Underwriter severally represents and agrees that: (a) it has only communicated
or caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the Financial Services and Markets ▇▇▇ ▇▇▇▇
(the “FSMA”)) received
by it in connection with the issue or sale of any Securities in circumstances in
which section 21(1) of the FSMA would not, if the Company was not an authorised
person, apply to the Company; and (b) it has complied and will comply with all
applicable provisions of the FSMA (and all rules and regulations made pursuant
to the FSMA) with respect to anything done by it in relation to the Securities
in, from or otherwise involving the United Kingdom.
16. In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each
Underwriter severally represents and agrees that with effect from and including
the date on which the Prospectus Directive is implemented in that Relevant
Member State (the “Relevant
Implementation Date”), it has not made and will not make an offer of
Securities to the public in that Relevant Member State prior to the publication
of a prospectus in relation to the Securities which has been approved by the
competent authority in that Relevant Member State or where appropriate, approved
in another Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive, except
that it may, with effect from and including the Relevant Implementation Date,
make an offer of Securities to the public in that Relevant Member State: (a) to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is solely
to invest in securities; (b) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a total
balance sheet of more than EUR 43,000,000; and (3) an annual net turnover of
more than EUR 50,000,000, as
21
shown in
its last annual or consolidated accounts; (c) to fewer than 100 natural or legal
persons (other than qualified investors as defined in the Prospectus Directive)
subject to obtaining the prior consent of the Underwriters; or (d) in any other
circumstances falling under Article 3(2) of the Prospectus Directive, provided
that no such offer of Securities requires the publication by the Company of a
prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes
of this Section 16 of this Agreement, the expression “an offer of Securities to
the public” in relation to any Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Securities to be offered so as to enable an investor
to decide to purchase or subscribe the Securities, as the same may be varied in
that Member State by any measure implementing the Prospectus Directive in that
Member State and the expression “Prospectus Directive” means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
17. Each
of the Company and the Group hereby acknowledges that (a) the purchase, or
procurement of purchasers of, and sale of the Securities pursuant to this
Agreement is an arm’s-length commercial transaction between the Company and the
Group, on the one hand, and the Underwriters and any affiliate through which any
Underwriter may be acting, on the other, (b) the Underwriters are acting as
principal and not as an agent or fiduciary of the Company and (c) the Company’s
and the Group’s engagement of the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company and the Group agrees that it is solely
responsible for making its own judgments in connection with the offering
(irrespective of whether any of the Underwriters has advised or is currently
advising the Company or the Group on related or other matters). Each
of the Company and the Group agrees that it will not claim that the Underwriters
have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
18. Time
shall be of the essence of each Pricing Agreement. As used herein, “business day” shall mean any
day when the Commission’s office in Washington, D.C. is open for
business.
19. This
Agreement and each Pricing Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to conflict
of laws provisions thereof. Specified times of day refer to New York City
time.
20. This
Agreement may be executed in one or more counterparts and, when a counterpart
has been executed by each party, all such counterparts taken together shall
constitute one and the same agreement.
[The rest
of this page is intentionally left blank.]
22
If the
foregoing is in accordance with your understanding, please sign and return to us
[ ] counterparts
hereof.
|
Very
truly yours,
|
||
|
THE
ROYAL BANK OF SCOTLAND plc
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[The rest
of this page is intentionally left blank.]
23
Accepted
as of the date hereof:
[names of
representatives]
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
For
themselves and as representatives of the several Underwriters
24
ANNEX
I
Pricing
Agreement
[Names of
Representatives]
[As
Representatives of the several
Underwriters
named in Schedule I hereto,]
___________
__, ____
Ladies
and Gentlemen:
The Royal
Bank of Scotland plc, a public limited company incorporated under the laws of,
and registered in, Scotland (the “Company”), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated _________ __, ____ (the “Underwriting Agreement”),
among the Company, The Royal Bank of Scotland Group plc, as guarantor (the
“Group”) and the several
Underwriters, to issue and sell to the Underwriters named in Schedule I hereto
(the “Underwriters”), or
to purchasers procured by them, the securities specified in Schedule II hereto
(the “Securities”). Each
of the provisions of the Underwriting Agreement is incorporated herein by
reference in its entirety, and shall be deemed to be a part of this Agreement to
the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Disclosure Package and/or the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Disclosure Package and/or the Prospectus (each as therein
defined), as the case may be, and also a representation and warranty as of the
date of this Pricing Agreement in relation to the Disclosure Package and/or the
Prospectus (as amended or supplemented), as the case may be, relating to the
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Securities
pursuant to Section 12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at the end of
Schedule II hereto.
An
amendment to the Registration Statement, or a supplement to the Prospectus, as
the case may be, relating to the Securities, in the form heretofore delivered to
you is now proposed to be filed with the Commission.
Subject
to the terms and conditions set forth herein (including Schedules I and II
hereto) and in the Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, or to purchasers
procured by them, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, or to procure
25
purchasers
to purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule I hereto
to be guaranteed by the Group.
If the
foregoing is in accordance with your understanding, please sign and return to us
[ ]
counterparts hereof, and upon acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof, including the provisions
of the Underwriting Agreement incorporated herein by reference, shall constitute
a binding agreement between each of the Underwriters, the Company and the Group.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company and the Group for examination upon request, but without warranty on the
part of the Representatives as to the authority of the signers
thereof.
[The rest
of this page is intentionally left blank.]
26
|
Very
truly yours,
|
||
|
THE
ROYAL BANK OF SCOTLAND plc
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[The rest
of this page is intentionally left blank.]
27
Accepted
as of the date hereof:
[names of
representatives]
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
For
themselves and as representatives of the several Underwriters
28
SCHEDULE
I
|
Principal
Amount of
Securities
to be Purchased
|
|||
|
[Names of
Representatives]
|
[ ]
|
||
|
[Names of other
Underwriters]
|
[ ]
|
||
|
Total:
|
[_____]
|
29
SCHEDULE
II
Capitalized
terms used herein, unless otherwise stated, shall have the meaning set forth in
the Underwriting Agreement.
Title
of Securities:
[ ]%
[Senior Debt Securities] due [ ]
Aggregate
principal amount:
$[ ]
principal amount of the Securities
Price
to Public:
[ ]% of
the principal amount of the Securities
Purchase
Price by Underwriters:
[ ]% of
the principal amount of the Securities
Underwriting
Commission:
[
]%
Form
of Securities:
Book-entry
only form represented by one or more global securities deposited with a
custodian for DTC, Euroclear Bank SA/NV, as operator of the Euroclear System and
Clearstream Banking, sociéte
anonyme, as the case may be.
Specified
funds for payment of purchase price:
Wire
transfer of immediately available funds
Time
of Delivery:
9:30 a.m.
(New York time), ________ __, ____
Indenture:
Indenture
dated as of ________ __, ____ between the Company, the Group and The Bank of New
York, as Trustee.
Maturity:
________
__, ____
30
Interest
Rate:
[
]%
Interest
Payment Dates:
Interest
will be paid on the Securities on ________ ___ and ________ ___ of each year,
commencing __________ __, ____.
Redemption
Provisions:
The
Securities may be redeemed as described in the Prospectus.
Sinking
Fund Provisions:
No
sinking fund provisions.
Closing
location for delivery of Securities:
Offices
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Names
and addresses of Representatives:
Designated
Representatives:
Address
for Notices:
Stock
Exchange Listing:
The
[Luxembourg Stock Exchange] [London Stock Exchange]
Guarantee:
The Group
will fully and unconditionally guarantee due and punctual payment in full to the
holders of the Securities.
Other
Terms:
The
Securities will have additional terms as more fully described in the Disclosure
Package and the Prospectus.
31
ANNEX
II
Issuer Free
Writing Prospectuses Included in Disclosure Package
32
ANNEX
III
FORM
OF OPINION OF
▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. COUNSEL
FOR
THE COMPANY AND THE GROUP
[To be
included as a Statement of Fact before the opinion: The Registration Statement
became effective under the 1933 Act and the Indenture qualified under the Trust
Indenture Act upon the filing of the Registration Statement with the Commission
on [date of filing]
pursuant to Rule 461(e)].
Based
upon the foregoing, we are of the opinion that:
1. Assuming
that the Underwriting Agreement (including the Pricing Agreement) has been duly
authorized, executed and delivered by the Company and the Group insofar as Scots
law is concerned, the Underwriting Agreement (including the Pricing Agreement)
has been duly executed and delivered by the Company and the Group.
2. Assuming
the Indenture has been duly authorized, executed and delivered by the Company
and the Group insofar as Scots law is concerned, the Indenture has been duly
executed and delivered by the Company and the Group, and the Indenture is a
valid and binding agreement of the Company and the Group, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally, concepts of reasonableness
and equitable principles of general applicability.
3. Assuming
the Securities have been duly authorized, executed and delivered by the Company
and the Group insofar as Scots law is concerned, the Securities and the
Guarantees, when the Securities are authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement (including the Pricing Agreement), will
be valid and binding obligations of the Company and the Group, respectively,
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally, concepts of
reasonableness and equitable principles of general applicability, and will be
entitled to the benefits of the Indenture pursuant to which such Securities are
to be issued.
4. Assuming
that the Underwriting Agreement (including the Pricing Agreement) has been duly
authorized, executed and delivered by the Company and the Group insofar as Scots
law is concerned, under the laws of the State of New York relating to personal
jurisdiction, each of the Company and the Group has, pursuant to Section 14 of
the Underwriting Agreement and Section 1.14 of the Indenture, validly and
irrevocably submitted to the personal jurisdiction of any New York state or U.S.
federal court located in the State of New York, Borough of Manhattan in the City
of New York (each a “New York
Court”), in any action arising out of or relating to the Underwriting
Agreement and the Pricing Agreement or the transactions contemplated thereby,
and has validly and irrevocably waived to the fullest extent it may effectively
do so, any objection to the venue of a proceeding in any such New York Court,
and
33
has
validly and irrevocably appointed ▇▇▇▇ ▇▇▇▇▇▇▇ as its initial authorized agent
for the purposes described in Section 14 of the Underwriting Agreement and
Section 1.14 of the Indenture; and service of process effected on such agent in
the manner set forth in Section 14 of the Underwriting Agreement and Section
1.14 of the Indenture will be effective service of process in any such action
upon the Company and the Group.
5. The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as an investment company as such
term is defined in the Investment Company Act of 1940, as amended.
6. Except
as disclosed in the Prospectus, the execution and delivery by the Company of,
and the performance by the Company of its obligations under, the Underwriting
Agreement (including the Pricing Agreement), the Indenture and the Securities
(collectively, the “Documents”) and the execution
and delivery by the Group, and the performance by the Group of its obligations
under the Documents will not contravene any provision of the laws of the State
of New York or any federal law of the United States of America that in our
experience is normally applicable to general business corporations in relation
to transactions of the type contemplated thereby, provided that we express no
opinion as to federal or state securities laws.
7. No
consent, approval, authorization or order of, or qualification with, any
governmental body or agency under the laws of the State of New York or any
federal law of the United States of America that in our experience is normally
applicable to general business corporations in relation to transactions of the
type contemplated by the Documents is required for the execution, delivery and
performance by the Company or the Group of its obligations under the Documents,
except such as may be required under federal or state securities or Blue Sky
laws as to which we express no opinion.
We have
considered the statements included in the Prospectus under the caption
“Description of Debt Securities” insofar as they summarize provisions of the
Indentures and the Securities. In our opinion, such statements fairly summarize
these provisions in all material respects. The statements included in the
Prospectus under the caption “Certain U.S. Federal and U.K. Tax Consequences”,
insofar as they purport to describe provisions of U.S. federal income tax laws
or legal conclusions with respect thereto, fairly and accurately summarize the
matters referred to therein in all material respects.
34
FORM
OF ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. COUNSEL
FOR
THE COMPANY AND THE GROUP
On the basis of the information gained
in the course of the performance of the services rendered above, but without
independent check or verification except as stated:
1. The
Registration Statement and the Prospectus appear on their face to be
appropriately responsive in all material respects to the requirements of the
1933 Act and the applicable rules and regulations of the Commission thereunder;
and
2. nothing
has come to our attention that causes us to believe that, insofar as relevant to
the offering of the Securities:
|
|
a.
|
the
Registration Statement or the Prospectus included therein at the time the
Registration Statement became effective contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading,
|
|
|
b.
|
at
the [Time of Sale], the Disclosure Package contained any untrue statement
of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
or
|
|
|
c.
|
the
Prospectus as of the date of the Underwriting Agreement or as of the date
hereof contained or contain any untrue statement of a material fact or
omitted or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
|
In
providing this letter to you and the other several Underwriters, we have not
been called to pass upon, and we express no view regarding: (1) the financial
statements or financial schedules or other financial or accounting data included
in the Registration Statement, the Disclosure Package or the Prospectus or (2)
the Statement of Eligibility of the Trustee on Form T-1. It is understood, for
the purpose of this letter, that any data furnished in accordance with “Guide
3. Statistical Disclosure by Bank Holding Companies” under the 1933 Act
and the pro forma accounts of the Group and [ABN AMRO Holdings N.V.] is
financial data. In addition, we express no view as to the conveyance
of the Disclosure Package or the information contained therein to
investors.
35
ANNEX
IV
FORM
OF OPINION OF
DUNDAS
& ▇▇▇▇▇▇ ▇▇ LLP, SCOTTISH SOLICITORS
TO
THE COMPANY AND THE GROUP
Based
upon and subject to the foregoing and subject to the qualifications set out
below and to any matters not disclosed to us, it is our opinion that so far as
the present law of Scotland is concerned:
1. The
Company and the Group have been duly incorporated in Scotland as limited
liability companies and are validly registered under the law of Scotland, are
not in liquidation, and have the corporate power and authority under such law to
conduct their respective businesses as described in the Prospectus and/or the
Prospectus Supplement.
2. The
execution, delivery and performance by the Company and the Group of the
Underwriting Agreement and the Pricing Agreement is within the corporate power
of the Company and the Group and has been duly authorized by all necessary
corporate action on the part of the Company and the Group.
3. The
creation and issuance of the Securities and the execution, delivery and
performance by the Company and the Group of the Indenture is within the
corporate power of the Company and the Group and has been duly authorized by all
necessary corporate action on the part of the Company and the Group; assuming,
inter alia, due
authorization and execution of the Indenture by the Trustee, the obligations on
the part of the Company and the Group under the Indenture are valid and legally
binding against the Company and the Group, subject as to enforcement to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors’ rights generally and to general equity
principles.
4. The
Securities (in global or definitive form) and the Guarantees (when executed by
the Company and the Group in accordance with the Indenture), insofar as Scots
law governs the formalities of execution and delivery thereof, will have been
duly executed by or on behalf of the Company and the Group and (upon their
issue, authentication and delivery in accordance with the terms of the
Underwriting Agreement, the Pricing Agreement and the Indenture) will have been
duly issued and delivered, and they will constitute valid and legally binding
obligations of the Company and the Group subject as to enforcement to
bankruptcy, insolvency, reorganisation and other laws of general applicability
relating to or affecting creditors’ rights generally and to general equity
principles.
5. The
obligations on the part of the Company and the Group under the Indenture are
valid and legally binding against the Company and the Group subject as to
enforcement to bankruptcy, insolvency, reorganisation and other laws of general
applicability relating to or affecting creditors’ rights generally and to
general equity principles.
6. No
authorisations, approvals, consents or licences of governmental, judicial or
public bodies or authorities of or in Scotland (together “consents”), except such
consents as may be required under statutory provisions (other than the Companies
Acts, 1985, 1989 and 2006 as they apply to a company having its registered
office in Scotland) or regulations or practices
36
applying
in Great Britain as a whole, are required by the Company or the Group as a
result of the Company and the Group being Scottish registered companies for the
execution, issue and delivery of the Securities.
7. Neither
the execution, delivery and performance by the Company or the Group of the
Indenture, nor the execution, issue and delivery of the Securities, will of
itself result in any violation in any material respect of:
(a) the
Memorandum or Articles of Association of the Company or the Group;
or
(b) any
existing applicable mandatory provision of Scots law or regulation;
or
(c) any
existing judgment, order or decree of any Scottish court.
8. The
Underwriters would under current practice of the Scottish courts (assuming the
effect of Section 14 of the Underwriting Agreement is not to prorogate the
exclusive jurisdiction of the United States courts or the courts of or in the
State of New York) be permitted to commence proceedings in the Scottish courts
for enforcement of the Underwriting Agreement and Pricing Agreement and the
Scottish courts would accept jurisdiction in any proceedings for so long as the
Company remained domiciled in Scotland and, upon proper averments being made in
a Scottish court in any such proceedings, the choice of the law of the State of
New York as the proper law of the Underwriting Agreement would be upheld as a
valid choice of law by that court.
9. The
submission by the Company and the Group in Section 14 of the Underwriting
Agreement to the jurisdiction of the courts of or in New York, and the
designation, appointment and empowerment by the Company and the Group under the
said Section 14 of an agent for service, would be upheld by the Scottish courts
as valid and effective.
10. In
relation to any Agreement which is expressed to be governed by the law of the
State of New York as its proper law, a judgment of the courts of the State of
New York as the relevant forum would be recognised in Scotland through an action
of decree conform under common law in the Court of Session in Scotland, assuming
that (I) the court which issued the judgment had jurisdiction and acted
judicially with no element of unfairness, (II) such judgment was final, not
obtained by fraud, or a revenue or penal action, remained capable of enforcement
in the place it was pronounced and was not contrary to natural justice, and
(III) enforcement of the judgment is not contrary to Scottish public
policy.
11. The
Underwriting Agreement, the Pricing Agreement and the Indenture have, insofar as
Scots law governs the formalities of execution and delivery thereof, been duly
executed and delivered by or on behalf of the Company and the
Group.
37
ANNEX
V
FORM
OF OPINION OF LINKLATERS LLP
ENGLISH
SOLICITORS TO THE COMPANY AND THE GROUP
Assuming
that the Company and the Group are resident in the United Kingdom for the
purposes of United Kingdom taxation, we are of the opinion that:
1. It
is not necessary either to ensure the validity of the Securities, the
Guarantees, the Underwriting Agreement, the Pricing Agreement or the Indenture
or to ensure the compliance by the Representatives with any mandatory provision
of English law, to obtain any approval, consent, order or permission of, or to
effect any further filing, recording or registration with, any public authority
or governmental agency in England or authorisation from any regulatory
authority, government department or court in England (other than any consents,
approvals or authorisations required under the Companies Ac▇ ▇▇▇▇ ▇s it applies
to a company having its registered office in Scotland - as to which we
understand you are relying upon an opinion of Dundas & ▇▇▇▇▇▇ ▇▇ LLP) in
respect of the execution, delivery or performance of the Securities, the
Guarantees, the Underwriting Agreement, the Pricing Agreement, or the
Indenture. [Additional language to be added if
notes are listed in London]
2. The
statements in the Disclosure Package and the Prospectus Supplement under the
section headed “Certain U.S. Federal and U.K. Tax Consequences”, insofar as such
statements constitute a general summary of both current United Kingdom tax law
and United Kingdom H.M. Revenue & Customs’ practice relevant to the issue of
the Securities, if any, fairly and accurately summarise the matters referred to
therein.
3. No
United Kingdom stamp duty, stamp duty reserve tax, capital duty, registration or
other issue or documentary taxes are payable by the Underwriters on the
creation, issue or delivery of the Securities by the Company which comprise loan
capital falling within the exemption in Section 79(4) and not within Sections
79(5) or (6) of the Finance Ac▇ ▇▇▇▇. Furthermore, even if the above exemption
does not apply, there will nevertheless be no such United Kingdom stamp duty,
stamp duty reserve tax, capital duty, registration or other issue or documentary
taxes payable by the Underwriters provided that (i) such Underwriters are not
persons falling within any of Sections 93(2), 93(3) or 96 (1) of the Finance Ac▇
▇▇▇▇ ▇nd (ii) any other person falling within any of Sections 93(2), 93(3) or
96(1) of the Finance Ac▇ ▇▇▇▇ ▇o whom the Securities are issued or delivered
does not seek to pass on the cost of any charge to United Kingdom stamp duty,
stamp duty reserve tax or other issue or documentary taxes falling on them to
the Underwriters.
4. No
United Kingdom stamp duty, stamp duty reserve tax, capital duty, registration or
other issue or documentary taxes should be payable in the United Kingdom on the
creation, issue which comprise loan capital falling within Section 79(4) and not
within Sections 79(5) and (6) of the Finance Ac▇ ▇▇▇▇, or on delivery by, or on
behalf of, the Company or the Group of the Securities in registered form, the
execution and delivery of the Pricing Agreement, the Underwriting Agreement or
the consummation of the transactions contemplated thereby.
38
5. No
United Kingdom value added tax will be payable by the Underwriters in respect of
their underwriting commissions under the Underwriting Agreement.
6. Payments
of interest in respect of the Securities may be made without withholding taxes
or duties in the United Kingdom provided that the Securities are listed on a
“recognised stock exchange” within the meaning of section 1005 of the Income Tax
Ac▇ ▇▇▇▇ ▇t the time of the payment: The [Luxembourg Stock Exchange]
[London Stock Exchange] is a “recognised stock exchange” for purposes
of section 1005.
7. Each
holder of a Security may, in certain limited circumstances as set out in, and
subject always to the terms of the Indenture, (if and when a valid cause of
action which is enforceable by a holder in the English courts arises under the
Securities or the Guarantees) bring such a claim as a claimant in the English
courts for the enforcement of its rights against the Company or the Group, as
applicable. Such a claim will not be subject to any procedural rules which are
not applicable to residents of England, save that an English court may take
residency or domicile of a claimant into account when considering the procedural
rules and/or legal principles in relation to security for costs and forum non
conveniens.
8. Neither
the execution and delivery of the Underwriting Agreement, the Pricing Agreement
and the Indenture by the Company or the Group, nor the compliance by the Company
or the Group with its obligations under the Underwriting Agreement, the Pricing
Agreement or the Indenture will, of itself, breach (A) any mandatory provision
of English law of general application binding on the Company or the Group, or
(B) any covenant of either the Company or the Group (other than any financial or
similar covenant) contained in any of the following documents:
(a) Trust
Deed dated 11 December 1985 between the Group and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$350,000,000 undated floating rate primary
capital notes;
(b) [Trust
Deed dated 24 August 1989 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$400,000,000 undated floating rate primary
capital notes;]1
(c) First
Supplemental Trust Deed dated 1 March 1993 between The Royal Bank of Scotland
plc, the Group and The Law Debenture Trust Corporation p.l.c. constituting
£150,000,000 10½% subordinated bonds 2013;
(d) Second
Supplemental Trust Deed dated 12 August 1993 between the Company, the Group and
The Law Debenture Trust Corporation p.l.c. constituting £200,000,000 9½% undated
subordinated bonds;
(e) Trust
Deed dated 10 June 2002 between the Group and The Law Debenture Trust
Corporation p.l.c. constituting €1,250,001,000 fixed/floating rate callable
subordinated notes due 2042;
1 To be confirmed.
39
(f) Trust
Deed dated 5 December 2002 between the Group and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$750,001,000 fixed rate callable
subordinated notes due 2042;
(g) Trust
Deed dated 21 May 2003 between the Group and The Law Debenture Trust Corporation
p.l.c. constituting U.S.$850,001,000 fixed/floating rate callable subordinated
notes due 2043;
(h) Trust
Deed dated 10 December 2003 between the Group and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$650,001,000 fixed/floating rate callable
subordinated notes due 2043;
(i) Trust
Deed dated 24 August 2004 between the Group and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$950,001,000 fixed/floating rate callable
subordinated notes due 2044;
(j) Trust
Deed dated 24 August 2004 between the Company and The Law Debenture Trust
Corporation p.l.c. constituting U.S.$550,001,000 floating rate callable
subordinated notes due 2044, [as supplemented by a supplemental Trust Deed dated
27 September 2004 constituting an additional U.S.$450,001,000 floating rate
callable subordinated notes due 2044;]1
(k) Trust
Deed dated 12 December 2005 between the Group and The Law Debenture Trust
Corporation p.l.c. constituting €500,001,000 fixed/floating rate callable
subordinated notes due 2046;
(l) Trust
Deed dated 8 December 2006 between the Group and The Law Debenture Trust
Corporation p.l.c. constituting £400,001,000 fixed/floating rate callable
subordinated notes due 2047; and
(m) Trust
Deed dated 4 October 2007 between the Group and BNY Corporate Trustee Services
Limited constituting U.S.$. 1,600,000,000 6.990 per cent. fixed/floating rate
preferred capital securities.
[Add any subsequent Trust
Deeds]
For the
purposes of the opinion contained in paragraph 8 above we have interpreted the
effect of the Underwriting Agreement, the Pricing Agreement, the Indenture and
the Securities as if they were governed by and construed in accordance with
English law. Such opinion should not be taken as expressing an opinion as to the
observance of any financial or similar covenant contained in the documents
listed above.
1 To be confirmed.
40
ANNEX
VI
FORM
OF OPINION OF SHEARMAN & STERLING LLP,
COUNSEL
FOR THE UNDERWRITERS
1. Assuming
that the Underwriting Agreement (including the Pricing Agreement) has been duly
authorized, executed and delivered by the Company and the Group insofar as Scots
law is concerned, the Underwriting Agreement (including the Pricing Agreement)
has been duly executed and delivered by the Company and the Group.
2. Assuming
that the Indenture has been duly authorized, executed and delivered by the
Company and the Group insofar as Scots law is concerned, the Indenture has been
duly executed and delivered and is the legal, valid and binding obligation of
the Company and the Group, enforceable against the Company and the Group in
accordance with its terms.
3. Assuming
that the Securities have been duly authorized, executed and delivered by the
Company and the Group insofar as Scots law is concerned and authenticated by the
Trustee in accordance with the Indenture and delivered and paid for as provided
in the Underwriting Agreement and the Pricing Agreement, the Securities will be
the legal, valid and binding obligations of the Company and the Group,
enforceable against the Company and the Group in accordance with their terms and
entitled to the benefits of the Indenture.
4. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
5. Assuming
the validity of such action under Scots law, under the laws of the State of New
York relating to submission to jurisdiction, pursuant to Section 14 of the
Purchase Agreement, the Company and the Group have (i) validly and irrevocably
submitted to the jurisdiction of the federal courts of the United States of
America located in the Borough of Manhattan, the City of New York and the courts
of the State of New York located in the Borough of Manhattan, the City of New
York, for the purposes specified therein, (ii) to the fullest extent permitted
by law, waived any objection which it may now or hereafter have to the laying of
venue in any legal suit, action or proceeding in any federal or state court in
the Borough of Manhattan, the City of New York and (iii) validly and, to the
extent stated therein, irrevocably appointed ▇▇▇▇ ▇▇▇▇▇▇▇ as its initial
authorized agent for the purpose described in Section 14 of the Underwriting
Agreement. Service of process effected on such agent in the manner
set forth in Section 14 of the Underwriting Agreement will be effective to
confer valid personal jurisdiction over the Company and the Group.
6. Insofar as the statements in the
Disclosure Package and the
Final Offering Memorandum (i) under the caption “Taxation” purport to describe certain U.S.
federal income tax laws as they relate to U.S. Holders (as defined therein) and
(ii) under the caption “Certain ERISA
Considerations”
constitute summaries of legal matters
referred
41
to therein, such statements fairly and
accurately summarize in all material respects the matters referred to
therein.
7. Insofar as the statements in the
Disclosure Package and the Prospectus under the caption “Description of Debt
Securities” constitute
summaries of documents referred to therein, fairly summarize in all material
respects the documents referred to therein.
42
FORM
OF 10b-5 LETTER OF
SHEARMAN
& STERLING LLP,
COUNSEL
FOR THE UNDERWRITERS
Subject
to the limitations set forth in the immediately preceding paragraph, we advise
you that, on the basis of the information we gained in the course of performing
the services referred to above, in our opinion, (a) each of the documents
incorporated by reference in the Disclosure Package and the Prospectus (other
than the financial statements and other financial or statistical data contained
therein or omitted therefrom, as to which we express no opinion) at the time it
was filed with the Commission, appears on its face to have been appropriately
responsive in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended, and the applicable rules and regulations of
the Commission thereunder and (b) each of the Registration Statement, the
Preliminary Prospectus and the Prospectus (other than the financial statements
and other financial or statistical data contained therein or omitted therefrom,
as to which we express no opinion), appears on its face to be appropriately
responsive in all material respects to the requirements of the 1933 Act and the
applicable rules and regulations of the Commission thereunder.
We
further advise you that, subject to the limitations set forth in the second
preceding paragraph, on the basis of the information we gained in the course of
performing the services referred to above, no facts came to our attention which
gave us reason to believe that (i) the Registration Statement (other than the
financial statements and other financial or statistical data contained therein
or omitted therefrom, as to which we have not been requested to comment), as of
the date of the Pricing Agreement, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Disclosure
Package (other than the financial statements and other financial or statistical
data contained therein or omitted therefrom, as to which we have not been
requested to comment), as of the Applicable Time, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or (iii) the Prospectus (other than the financial
statements and other financial or statistical data contained therein or omitted
therefrom, as to which we have not been requested to comment), as of its date or
the date hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In expressing the foregoing opinions and belief, we have
not been called to pass upon, and we express no opinion or belief as to, any
Statement of Eligibility of the Trustee on Form T-1. For the purposes of this
and the preceding paragraph, the term “financial data” includes, without
limitation, the pro forma accounts of the Group and [ABN AMRO Holdings N.V.] and
the data required to be included in the Registration Statement and the
Prospectus under the 1933 Act by Guide 3, Statistical Disclosure by Bank Holding
Companies.
43