ArcelorMittal Debt Securities Underwriting Agreement Standard Provisions
Exhibit 1.1
Debt Securities
Underwriting Agreement Standard Provisions
From time to time, ArcelorMittal, a Luxembourg société anonyme (the “Company”), may enter into one or more underwriting agreements in the form of Annex A hereto that incorporate by reference these Standard Provisions (collectively with these Standard Provisions, an “Underwriting Agreement”) that provide for the sale of the securities designated in such Underwriting Agreement (the “Securities”) to the several Underwriters named therein (the “Underwriters”), for whom the Underwriter(s) named therein shall act as representative (the “Representative”). The Underwriting Agreement, including these Standard Provisions, is sometimes referred to herein as this “Agreement”. The Securities will be issued pursuant to an Indenture dated as of May 20, 2009, as supplemented by a Fifth Supplemental Indenture dated as of February 28, 2012, each between the Company and HSBC Bank USA, National Association, as trustee (the “Trustee”) and, as applicable with respect to the Securities, as supplemented by one or more additional supplemental indentures (as supplemented, the “Indenture”).
1. Registration Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form F-3 (File No.[ ]), including a prospectus (the “Base Prospectus”), relating to the debt securities to be issued from time to time by the Company. The Company has also filed, or proposes to file, with the Commission pursuant to Rule 424 under the Securities Act a prospectus supplement specifically relating to the Securities (the “Prospectus Supplement”). The registration statement, as amended at the time it becomes effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness, is referred to herein as the “Registration Statement”; and as used herein, the term “Prospectus” means the Base Prospectus as supplemented by the prospectus supplement specifically relating to the Securities in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities and the term “Preliminary Prospectus” means the preliminary prospectus supplement specifically relating to the Securities together with the Base Prospectus. All references in this Agreement to financial statements and schedules and other information which is “given,” “contained,” “included,” “stated” or “described” in the Registration Statement, any Preliminary Prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that are incorporated by reference in or otherwise deemed by the rules and regulations under the Securities Act to be a part of or included in the Registration Statement, any Preliminary Prospectus or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, any Preliminary Prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934 (the “Exchange Act”) which is incorporated by reference in or otherwise deemed by the rules and regulations under Securities Act to be a part of or included in the Registration Statement, such Preliminary Prospectus or the Prospectus, as the case may be.
Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus. References herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein. For purposes of this Agreement, the term “Effective Time” means the effective date of the Registration Statement with respect to the offering of Securities, as determined for the Company pursuant to Section 11 of the Securities Act and Item 512 of Regulation S-K, as applicable.
At or prior to the time when sales of Securities will first be made, the Company will prepare certain information, which will be identified in Schedule 3 to the Underwriting Agreement and which, together with the
1
Preliminary Prospectus most recently used prior to the execution of the Underwriting Agreement constitute the “Time of Sale Information” for such offering of Securities. The “Time of Sale” will be defined in the Underwriting Agreement.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to issue and sell the Securities to the several Underwriters named in the Underwriting Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in the Underwriting Agreement at the purchase price set forth in the Underwriting Agreement.
(b) Payment for and delivery of the Securities will be made at the time and place set forth in the Underwriting Agreement. The time and date of such payment and delivery is referred to herein as the “Closing Date”.
(c) The Company acknowledges and agrees that the Underwriters named in the Underwriting Agreement are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or agents of, the Company or any other person. Additionally, no such Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and such Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by such Underwriters named in the Underwriting Agreement of the Company, the transactions contemplated thereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or any other person.
3. Representations and Warranties of the Company. The Company represents and warrants to each Underwriter that:
2
the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in such Time of Sale Information.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Schedule 3 to the Underwriting Agreement and (v) any electronic road show that is a “written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or other written communications, in each case approved in writing in advance by the Representative. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, at the Time of Sale, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein and any supplement or amendment deemed to be a part thereof that has not been superseded or modified; provided that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing Prospectus.
3
(f) No Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus, (i) there has not been any change in the capital stock or long-term debt of the Company or any of its significant subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a future material adverse change, in or affecting the business, properties, management, financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its significant subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its significant subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
4
(m) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Information and the Prospectus.
5
Information and the Prospectus, is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(t) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(u) Status under the Securities Act. The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act and in each case at the times specified in the Securities Act in connection with the offering of the Securities.
6
(ee) Xxxxxxxx-Xxxxx Act. There is and has been no material failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(ff) No Restrictions or Withholding Taxes on Payments. There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in Luxembourg or in the United States in connection with the execution and delivery of the Underwriting Agreement, the Indenture or the issuance or sale of the Securities. Other than as described in the Time of Sale Information and the Prospectus, under the current laws and regulations of Luxembourg, all payments of principal, premium (if any) and interest on the Securities may be paid by the Company to the registered holder thereof in U.S. dollars (that may be obtained through conversion of the euro) that may be freely transferred out of Luxembourg, and all such payments and other distributions made to holders of the Securities who are non-residents of Luxembourg will not be subject to Luxembourg income, withholding or other taxes under the laws and regulations of Luxembourg and are otherwise free and clear of any other tax, duty withholding or deduction in Luxembourg and without the necessity of obtaining any governmental authorization in Luxembourg.
4. Further Agreements of the Company. The Company covenants and agrees with each Underwriter that:
(a) Filings with the Commission. The Company will (i) pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act and in any event prior to the Closing Date and (ii) file the Prospectus in a form approved by the Underwriters with the Commission pursuant to Rule 424 under the Securities Act not later than the close of business on the second business day following the date of determination of the public offering price of the Securities or, if applicable, such earlier time as may be required
7
by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act. The Company will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities Act; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representative may reasonably request.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Company will furnish to the Representative and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects within a reasonable time.
(d) Notice to the Representative. The Company will advise the Representative promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request during the offering period by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any 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 Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, to obtain as soon as possible the withdrawal thereof.
8
as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented will not, in light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with applicable law.
(g) Blue Sky Compliance. The Company will arrange, if necessary, for the qualification of the Securities for offer and sale by the Underwriters under the laws of such jurisdictions as the Representative shall reasonably request and will continue such qualifications in effect so long as required for the offer and sale of the Securities; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that,
9
solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Schedule 3 to the Underwriting Agreement or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus.”
(b) Notwithstanding the foregoing, the Underwriters may use a term sheet substantially in the form of Schedule 4 to this Agreement without the consent of the Company.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
(d) With effect from and including the date on which the Prospectus Directive is implemented in any Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “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 other than:
(i) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(ii) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Representative; or
(iii) in any other circumstances which do not require the publication by the Company of a prospectus pursuant to Article 3 of the Prospectus Directive.
provided that no such offer of Securities shall result in a requirement for the publication by the Company or any Initial Purchaser of a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive.
For the purposes of this provision, 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 shares, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU”.
(e) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, or “FSMA”) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(f) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
10
pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests during the offering period by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representative.
(g) Opinion and 10b-5 Statement of Counsel for the Company. Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to the Representative, their written opinion and 10b-5 negative comfort letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Annex C hereto.
(h) Opinion of Luxembourg Counsel for the Company. Elvinger, Hoss & Prussen, Luxembourg counsel for the Company, shall have furnished to the Representative their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative, to the effect set forth in Annex D hereto.
11
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representative shall have received on and as of the Closing Date an opinion and 10b-5 statement of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, with respect to such matters as the Representative may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
12
13
Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and the Underwriters on the other 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 or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
8. Termination. This Agreement may be terminated in the absolute discretion of the Representative, by written notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the U.S. over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or the U.S. over-the-counter market (other than as a result of exchange or market wide trading suspensions); (iii) a general moratorium on commercial banking activities shall have been declared by U.S. federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the reasonable judgment of the Representative, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
14
for up to five full business days in order to effect any changes that in the opinion of counsel for the Company and counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.
(b) If (i) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (ii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement (other than as a result of termination of this Agreement pursuant to Section 8), the Company agrees to reimburse the Underwriters for all out-of-pocket reasonable and documented costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
15
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City, Paris or Luxembourg; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; (d) the term “written communication” has the meaning set forth in Rule 405 under the Securities Act ; and (e) the term “significant subsidiary” has the meaning set forth in Rule 1.02(w) of Regulation S-X promulgated by the Commission.
14. Submission to Jurisdiction; Appointment of Agent for Service. (a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in The City of New York, Borough of Manhattan, over any suit, action or proceeding arising out of or relating to this Agreement. The Company irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. To the extent that the Company has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding.
(b) The Company hereby irrevocably appoints ArcelorMittal International America, LLC as its agent for service of process in any suit, action or proceeding described in the preceding paragraph and agrees that service of process in any manner permitted by applicable law in any such suit, action or proceeding may be made upon it at the office of such agent. The Company waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that such agent has agreed to act as its agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments that may be necessary to continue such appointment in full force and effect.
15. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which the Underwriters could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company with respect to any sum due from it to any Underwriter or any person controlling any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter or controlling person of any sum in such other currency, and only to the extent that such Underwriter or controlling person may purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling person hereunder, the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person
16
against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person hereunder, such Underwriter or controlling person agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person hereunder.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. For the avoidance of doubt, the provisions of article 86 to 94-8 of the Luxembourg law of August 10, 1915 on commercial companies, as amended, do not apply to the debt securities.
17
Annex A
[Form of Underwriting Agreement]
Underwriting Agreement
, 20
[Name(s) of Representative(s)]
As Representative(s) of the several Underwriters
listed in Schedule 1 hereto
c/o [Name(s) and Address(es) of Representatives]
Ladies and Gentlemen:
ArcelorMittal, a Luxembourg société anonyme (the “Company”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representative(s) (the “Representative(s)”), $ principal amount of its % Notes due 20 having the terms set forth in Schedule 2 hereto (the “Securities”). The Securities will be issued pursuant to an Indenture dated as of May 20, 2009, as supplemented by a Fifth Supplemental Indenture dated as of February 28, 2012, each between the Company and HSBC Bank USA, National Association, as trustee (the “Trustee”), as supplemented by one or more additional supplemental indentures thereto dated as of , 201 (as supplemented, the “Indenture”).
The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to % of the principal amount thereof plus accrued interest, if any, from , 201 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representative(s) is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information and the Prospectus.
Schedule 3 hereto sets forth information that together with the Preliminary Prospectus used most recently prior to the execution of this Underwriting Agreement, constitute the Time of Sale Information made available at the Time of Sale. The “Time of Sale” with respect to the Securities is defined as [TIME], on [DATE]. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
Payment for and delivery of the Securities shall be made at the offices of [specify closing location] at 10:00 A.M., New York City time, on , or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representative(s) and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representative(s) against delivery to the nominee of The Depository Trust Company, for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representative(s) not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
A-1
The Company and the Underwriters acknowledge and agree that the only information relating to any Underwriter which has been furnished to the Company by any Underwriter expressly for use in the Registration Statement, including the Basic Prospectus included therein, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information consists of the following: the legal and marketing names of the Underwriters [on the cover page and in the first paragraph under the heading “Underwriting” in the prospectus supplement included in the Preliminary Prospectus and in the prospectus supplement included in the Prospectus, the information contained in the table and in the third, fourth, seventh, eighth, ninth and tenth full paragraphs and in “Other Relationships” under the heading “Underwriting” in the prospectus supplement included in the Preliminary Prospectus and the prospectus supplement included in the Final Prospectus, and the following information in the final Pricing Term Sheets dated [ ]: (i) the Spread to Benchmark Treasury, (ii) Benchmark Treasury and (iii) the Benchmark Treasury Price and Yield].
Notices to the Underwriters shall be given at: [ ]
All provisions contained in the document entitled ArcelorMittal Debt Securities Underwriting Agreement Standard Provisions, which was filed as Exhibit 1.1 of the Registration Statement on Form F-3 dated [ ], 2012 (File No. [ ]), are incorporated by reference herein in their entirety and shall be deemed to be a part of this Underwriting Agreement to the same extent as if such provisions had been set forth in full herein, except that if any term defined in such Underwriting Agreement Standard Provisions is otherwise defined herein, the definition set forth herein shall control.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
Very truly yours, | ||
ARCELORMITTAL | ||
By |
| |
Title: | ||
By |
| |
Title: |
Accepted: , 20
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
[ ]
By |
| |
Authorized Signatory |
A-2
Schedule 1
Underwriter |
Principal Amount | |||
$ |
Total |
$ |
A-3
Schedule 2
Representative(s) and Address(es) for Notices:
Certain Terms of the Securities:
Title of Securities: % Notes due 20
Aggregate Principal Amount of Securities: $
Maturity Date: , 20
Interest Rate: %
Interest Payment Dates: and , commencing , 20
Record Dates: and
Redemption Provisions:
[Change of Control:]
[Interest Adjustment Clause:]
[Other Provisions:]
A-4
Schedule 3
Time of Sale Information
1. List each document or any information provided as an amendment or supplement to the Preliminary Prospectus
2. Term sheet containing the terms of the Securities, substantially in the form of Schedule 4
A-5
Schedule 4
Pricing Term Sheet
Issuer: |
||
Security description: |
% notes due 20 | |
Size: |
$ | |
Price: |
% of face amount | |
Maturity: |
, 20 | |
Coupon: |
% | |
Yield to maturity: |
% | |
[Benchmark Treasury:] |
] | |
[Spread to Benchmark Treasury: |
%] | |
[Benchmark Treasury [Price] and Yield: |
%] | |
[Reference Treasury Dealers:] |
||
Interest Payment Dates: |
and , commencing , | |
[Proceeds to Company Before Expenses:] |
||
[Use of Proceeds:] |
||
[Change of control: |
101%] | |
[Make-whole spread: |
] | |
Trade date: |
||
Settlement: |
T+_; , 20 | |
CUSIP: |
||
ISIN: |
||
Denominations/Multiple: |
||
Underwriters: |
||
[ ] |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[xx-xxx-xxxx] [or emailing [ ] at [—]]
A-6
Annex B
[Form of Comfort Letter]
[To be provided]
B-1
Annex C
[Form of Opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, Counsel for the Company]
1. Each of the Base Indenture, the Fifth Supplemental Indenture and the th Supplemental Indenture has been duly executed and delivered by the Company under the law of the State of New York. The Indenture is qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and is a valid, binding and enforceable agreement of the Company.
2. The Notes in global form have been duly executed and delivered by the Company under the law of the State of New York and are, and the Notes in certificated form when exchanged for interests in the Notes in global form in accordance with the terms thereof and of the Indenture will be, the valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture.
3. The statements set forth under the heading “Description of Debt Securities” in the Prospectus, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions, and the statements made in the Prospectus, under the heading “Tax Considerations”, insofar as such statements purport to summarize certain federal income tax laws of the United States, provide a fair summary of the principal U.S. federal income tax consequences of an investment in the Notes.
4. The Underwriting Agreement has been duly executed and delivered by the Company under the law of the State of New York.
5. Under the law of the State of New York relating to submission to jurisdiction, the Company, pursuant to Section 14 of the ArcelorMittal Debt Securities Underwriting Agreement Standard Provisions, which are incorporated by reference into the Underwriting Agreement, has (i) validly and irrevocably submitted to the personal jurisdiction of any New York State or U.S. federal court located in the Borough of Manhattan, The City of New York, in any action arising out of or related to the Underwriting Agreement, (ii) to the fullest extent permitted by law, validly and irrevocably waived any objection to the venue of a proceeding in any such court, and (iii) validly appointed ArcelorMittal International America LLC as its initial authorized agent for the purpose described in Section 14 of the ArcelorMittal Debt Securities Underwriting Agreement Standard Provisions; and service of process effected in the manner set forth in Section 14 of the ArcelorMittal Debt Securities Underwriting Agreement Standard Provisions will be effective to confer valid personal jurisdiction over the Company in any such action.
6. The issuance and the sale of the Notes to the Underwriters pursuant to the Underwriting Agreement do not, and the performance by the Company of its obligations in the Underwriting Agreement, the Indenture and the Notes will not, (a) require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States of America or the State of New York that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance, except such as have been obtained or effected under the Securities Act and the Trust Indenture Act (but we express no opinion relating to any state securities or Blue Sky laws), or (b) result in a violation of any United States federal or New York State law or published rule or regulation that in such counsel’s experience normally would be applicable to general business entities with respect to such issuance, sale or performance (but such counsel need express no opinion relating to the United States federal securities laws or any state securities or Blue Sky laws).
7. No registration of the Company under the U.S. Investment Company Act of 1940, as amended, is required for the offer and sale of the Notes by the Company in the manner contemplated by the Underwriting Agreement.
C-1
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Company, (a) such counsel may assume that the Company and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption may be made as to the Company regarding matters of the federal law of the United States of America or the law of the State of New York that in such counsel’s experience normally would be applicable to general business entities with respect to such agreement or obligation), (b) such opinions may be subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity and (c) such opinions may be subject to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors’ rights.
Such counsel need express no opinion as to the enforceability of Section 1.17 of the Base Indenture relating to currency indemnity. With respect to the third sentence of Section 1.15 of the Base Indenture, such counsel need express no opinion except as follows: Under the law of the State of New York relating to submission to jurisdiction, the Company, pursuant to the first sentence of Section 1.15 of the Base Indenture, has validly appointed ArcelorMittal International America LLC as its initial authorized agent for the purpose described in the third sentence of Section 1.15 of the Base Indenture.
With respect to Section 14 of the ArcelorMittal Debt Securities Standard Provisions, which is incorporated by reference in the Underwriting Agreement, and with respect to Section 1.14 of the Base Indenture, such counsel need express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the Underwriting Agreement and the Indenture, respectively, where jurisdiction based on diversity of citizenship under 28 U.S.C. §1332 does not exist.
Such counsel may note that the designation in Section 14 of the ArcelorMittal Debt Securities Standard Provisions, which is incorporated by reference in the Underwriting Agreement, and in Section 1.14 of the Base Indenture of the U.S. federal courts sitting in New York City as the venue for actions or proceedings relating to the Underwriting Agreement and the Indenture, respectively (notwithstanding the waivers in such Section 14 of the ArcelorMittal Debt Securities Standard Provisions and Section 1.14 of the Base Indenture) is subject to the power of such courts to transfer actions pursuant to 28 U.S.C. §1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such an action or proceeding.
In rendering such opinion, such counsel may rely as to matters of fact on certificates of responsible officers of the Company and public officials that are furnished to the Underwriters.
In addition, such counsel shall provide to the Underwriters a letter to the following effect:
(a) The Registration Statement (except the financial statements and schedules and other financial and statistical data included therein and the information included therein relating to the Company’s mineral reserves, as to which such counsel need express no view), at the time it became effective, and the Prospectus (except as aforesaid), as of the date thereof, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder. In addition, such counsel shall state that it does not know of any contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that are not filed or described as required.
(b) The documents incorporated by reference in the Registration Statement and the Prospectus (except the financial statements and schedules and other financial and statistical data and management’s report on the effectiveness of internal control over financial reporting included therein and the information included therein relating to the Company’s mineral reserves, as to which such counsel need express no view), as of the respective dates of their filing with the Commission, appeared on their face to be
C-2
appropriately responsive in all material respects to the requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(c) Such counsel confirms to the Underwriters that (a) based solely on email confirmation of receipt of the filing and Rule 462(e) under the Securities Act, the Registration Statement is effective under the Securities Act, and (b) based solely upon a telephonic confirmation from a representative of the Commission, no stop order with respect thereto has been issued and, to the best of such counsel’s knowledge, no proceeding for that purpose has been instituted or threatened, by the Commission.
Such counsel shall also state that they have participated in conferences with representatives of the Company and with representatives of its independent accountants at which conferences the contents of the Registration Statement, the Time of Sale Information and the Prospectus and any amendment and supplement thereto and related matters were discussed and, although such counsel assume no responsibility for the accuracy, completeness or fairness of the Registration Statement, the Time of Sale Information, the Prospectus and any amendment or supplement thereto (except as expressly provided above), no information has come to the attention of such counsel to cause such counsel to believe that the Registration Statement, as of its effective date (including the information, if any, deemed pursuant to Rule 430A, 430B or 430C to be part of the Registration Statement at the Effective Time), 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, that the Time of Sale Information, at the Time of Sale (which such counsel may assume to be the time specified in such counsel’s letter on the date of the Underwriting Agreement) contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that the Prospectus or any amendment or supplement thereto as of its date and the Closing Date contained or contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information and management’s report on the effectiveness of internal control over financial reporting contained therein and the information included therein relating to the Company’s mineral reserves, as to which such counsel need express no belief).
X-0
Xxxxx X
[Xxxx xx Xxxxxxx xx Xxxxxxxxxx Counsel to the Company]
1. We have acted as Luxembourg legal advisers to ARCELORMITTAL, a société anonyme incorporated under the laws of Luxembourg with registered address at 00, xxxxxx xx xx Xxxxxxx, X-0000 Xxxxxxxxxx and registered with the Luxembourg Registre de Commerce et des Sociétés (the “RCS”) under number B 82.454 (the “Company”), in connection with the Company’s offering of USD [•] principal amount of its [•] % Notes due [•] [(the “20[] Notes”) and USD [•] principal amount of its [•] Notes due 20[] (the “20[] Notes” and, together with the 20[] Notes)] (the “Securities”)[)], pursuant to the terms of an underwriting agreement dated [•] incorporating the ArcelorMittal Debt Securities Underwriting Agreement Standard Provisions (the “Underwriting Agreement”) between the Company and the several Underwriters named therein.
The Securities will be issued under an indenture dated as of 20th May 2009 (the “Base Indenture”), as supplemented by the fifth supplemental indenture, dated as of 28th February 2012 (the “Fifth Supplemental Indenture”) and a [ ] supplemental indenture, dated as of [ ] (the “[ ] Supplemental Indenture”, and together with the Base Indenture and the Fifth Supplemental Indenture the “Indenture”) between the Company and HSBC Bank USA, National Association. The preliminary prospectus supplement dated [•], relating to the Securities, but excluding the documents incorporated by reference therein, is herein referred to as the “Preliminary Prospectus Supplement”, and the prospectus supplement dated [•], relating to the Securities, but excluding the documents incorporated by reference therein, is herein referred to as the “Prospectus Supplement”.
This opinion is given pursuant to Clause [6 (h)] of the Underwriting Agreement as to certain Luxembourg legal matters relating to the issue of the Securities as well as the entry of the Company into the Transaction Documents (as defined below).
2. For the purpose of giving this opinion, we have examined the following documents:
(a) | a scanned emailed executed copy of the Underwriting Agreement; |
(b) | a scanned executed copy of the Indenture; |
(c) | an emailed copy of the Preliminary Prospectus Supplement; |
(d) | an emailed copy of the Prospectus Supplement; |
(e) | a copy of the Company’s consolidated articles of association (statuts coordonnés) as at [•] (the “Articles”); |
(f) | an emailed scanned certificate issued by the [Company Secretary of the Company together with another authorised representative of the Company] dated [•], certifying that on [•], the board of directors of the Company (the “Board of Directors”) has authorized an envelope of USD 5 billion (five billion US dollars) or its equivalent in order to raise funds in the debt capital markets, in particular via public and/or private issuances, in various currencies and markets: Europe, North America (Canada and U.S.), Brazil or Japan and consequently the signature by the Company of any agreements or documents as necessary for the proper implementation of the above mentioned envelope (the “Officer’s Certificate”); |
(g) | an electronic certificat de non-inscription d’une decision judiciaire (certificate as to the non-inscription of a court decision) issued by the RCS on [•] (the “RCS Certificate”) certifying that no court decision as to inter alia the faillite (bankruptcy), concordat préventif de faillite (moratorium), gestion contrôlée (controlled management), sursis de paiement (suspension of payments) or liquidation judiciaire (compulsory liquidation) (together, “Luxembourg Insolvency Proceedings”), and no foreign court decision as to faillite, concordat or other analogous procedures according to Council Regulation (EC) n°1346/2000 of 29 May 2000 on insolvency proceedings is filed with the RCS in respect of the Company; |
D-1
(h) | a certified electronic copy of an excerpt issued by the RCS with respect to the Company dated [•] (the “Excerpt”); and |
(i) | a copy of the list of authorised signatories of the Company dated [•] and filed with the Luxembourg RCS on [•] (the “List of Authorised Signatories”). |
The documents listed under (a) to (i) are collectively referred to hereafter as the “Documents” and the documents listed under (a) and (b) are collectively referred to hereafter as the “Transaction Documents”.
Unless otherwise defined herein, terms defined in the Documents shall have the same meaning herein as therein.
3. We have made an enquiry on the website of the Bar of Luxembourg (Barreau de Luxembourg) (xxx.xxxxxxx.xx) on [•] at [•] (CET) as to whether bankruptcy proceedings against the Company have been filed with the court in Luxembourg and we have made an electronic company search on the Company on the website of the RCS on [•] at [•] CET (the “Company Search”). Our enquiries showed that no bankruptcy procedure had been filed to that time and we have received the RCS Certificate. It should be noted that such searches are subject to the disclaimers on the relevant websites and are not capable of revealing whether a writ has been served on the Company but has not yet been enrolled with the court and thus we cannot opine thereon or as to whether a writ commencing any such proceeding has been served on the Company but has not yet been enrolled with the court. The search at the RCS showed further that as at its time no compulsory liquidation procedure is pending in relation to the Company. It should be noted that notice of a winding-up order or a resolution to that effect passed may not be filed with the RCS immediately or may, even though filed, not be published on the website of the RCS immediately. Thus, we cannot opine as to whether any liquidation procedure has been initiated but not yet filed and published with the RCS. We have not made any enquiries other than those described in this section 3.
Subject to the above and paragraph (ix) of section 7 below, and solely in reliance on the RCS Certificate and the Company Search, we are of the opinion that the Company is currently not subject to Luxembourg Insolvency Proceedings.
4. In rendering this opinion, we have assumed:
(i) | the genuineness of all signatures and of all documents submitted to us as originals and the completeness and conformity to originals thereof of all documents submitted to us as copies or specimens, and that each signature on a document is the signature of the individual so identified and the signature of an individual who is not identified is the genuine signature of a person duly authorized to represent the relevant party to the document; |
(ii) | that the English terms used in the Documents have the meaning generally ascribed to such terms among non-native English speaking foreign legal practitioners without direct training in English, U.S. or any other anglo-saxon legal system and hence without knowledge of the direct or implied legal meaning and implications of terms when used in the context of such legal systems; |
(iii) | the accuracy and completeness of all factual representations expressed in or implied in each document we have reviewed (including, without limitation, the accuracy of the representations and warranties of the Company in the Underwriting Agreement); |
(iv) | the due authorisation, execution and delivery of the Documents by the parties thereto other than the Company, and the power, authority and legal right of the parties thereto other than the Company to enter into, execute, deliver and perform their respective obligations thereunder, and compliance with all applicable laws and regulations, other than the laws of the Grand Duchy of Luxembourg (“Luxembourg”); |
D-2
(v) | that all authorisations, approvals and consents of any authority of any country other than Luxembourg which may be required in connection with the execution, delivery and performance of the Documents and the issue and offering of the Securities have been or will be obtained; |
(vi) | that no foreign law affects the opinions set out in section 6 below; |
(vii) | that the Securities have not been and will not be the subject of an offer to the public in Luxembourg; |
(viii) | that the Certificate accurately reflects resolutions of the Board of Directors of the Company validly approved at a quorate meeting of the Board of Directors of the Company which has been validly convened and held, and that such resolutions are and remain in full force and effect without modification and have not been amended, rescinded or terminated and that the information contained therein is true, complete and accurate at the date of this opinion; |
(ix) | that the Articles remain in full force and effect and have not been amended; |
(x) | that the List of Authorised Signatories remains in full force and effect and has not been amended, rescinded or terminated; |
(xi) | that the Company has its place of principal management and its centre of main interests in Luxembourg as such terms defined by or in Council Regulation (EC) n°1346/2000 of 29 May 2000 insolvency proceedings or Luxembourg law, as applicable; |
(xii) | that the Base Indenture has been duly executed as of its date on behalf of the Company; |
(xiii) | that the Indenture and the Certificate have been signed on behalf of the Company by [•] and [•] in their capacity as [•]; |
(xiv) | that the Underwriting Agreement has been signed on behalf of the Company by [•] and [•] in their capacity as [•]; and |
(xv) | that the file of the Company at the Luxembourg RCS is complete and up to date. |
5. The present opinion relates only to the laws of Luxembourg as the same are in force and are construed by the Luxembourg courts on the basis of generally published court precedents at the date hereof and is given on the basis that it will be governed by, and construed in accordance with the laws of Luxembourg and that Luxembourg courts shall have exclusive jurisdiction thereon. We neither express nor imply any view or opinion on and/or in respect of the laws of any jurisdiction other than Luxembourg, and have made no investigation of any other law which may be relevant to any of the documents submitted to us or the opinions herein contained.
6. Based upon and subject to the above, we are of the opinion that:
6.1 The Company is a public limited liability company (société anonyme) duly incorporated and existing with full power to carry on its business under its Articles and under the laws of Luxembourg to which it is subject and as described in the Prospectus Supplement. The Company has the capacity to be sued and to xxx in its own name.
6.2 The Company has the power and corporate authority, and all necessary corporate actions have been taken by the Company, to enter into and to execute, deliver and perform its obligations under, the Transaction Documents and the Securities, and to issue the Securities.
6.3 The statements set forth in the Preliminary Prospectus and the Prospectus Supplement under the heading “Tax Considerations – Luxembourg Taxation”, insofar as such statements purport to summarise certain Luxembourg tax laws, constitute a fair summary of the principal Luxembourg tax consequences of an investment in the Securities as at the date of the Prospectus Supplement.
6.4 The choice of New York law as the law governing the Transaction Documents will be recognized as a valid choice of law by the Luxembourg courts.
D-3
6.5 The Courts of Luxembourg will give effect to the non exclusive submission by the Company to the jurisdiction of New York State or United States Federal courts sitting in the City of New York, Borough of Manhattan (each, a “New York Court”, and collectively, the “Courts of New York”) with respect to the Transaction Documents.
6.6 A final and conclusive judgement against the Company rendered by a New York Court, in any civil or commercial suit, action and proceedings arising out of or in connection with the Transaction Documents would be enforced by the Luxembourg Courts, without re-examining the merits of the case provided that in particular the following conditions laid down by Luxembourg law for enforcement of foreign court awards are met:
1. | The judgment is duly enforceable in New York; |
2. | The New York Court had jurisdiction over the subject matter of the action leading to the judgment; |
3. | The New York Court has acted in accordance with its own procedural laws; |
4. | The judgment was granted following proceedings where the counterparty had the opportunity to appear, and if it appeared, to present a defence; |
5. | The New York Court applied the substantive laws chosen by the parties to govern the Transaction Documents; and |
6. | The judgment is not contrary to the public order of Luxembourg. |
6.7 Subject to paragraph (iv) of section 7 below, the appointment of an agent for service of process as described by clause [14] of the Underwriting Agreement and Section 1.15 of the Indenture will be recognized by a Luxembourg Court as valid and binding.
7. The foregoing opinions are subject to the following qualifications:
(i) | the binding effect and validity of the Securities and the Transaction Documents and their enforceability against the Company will be subject to all limitations by reason of gestion contrôlée, concordat, faillite, bankruptcy, moratorium (sursis de paiement) and other insolvency, moratorium, controlled management, general settlement with creditors, reorganisation or similar laws affecting creditors’ rights generally; |
(ii) | any obligations to pay a sum of money in a currency which is not of legal tender in Luxembourg (a “foreign currency”) will be enforceable in a currency which is of legal tender therein, though the monetary judgement may be expressed in a foreign currency and/or its Luxembourg equivalent currency having legal tender in Luxembourg at time of payment and any loss incurred as a result of currency exchange fluctuation should be recoverable under Luxembourg law; |
(iii) | where any obligations of any person are to be performed or observed or based on a matter arising in a jurisdiction outside Luxembourg, such obligations may not be enforceable under Luxembourg law or in a Luxembourg Court to the extent that performance thereof would be illegal or contrary to public policy under the laws of such jurisdiction; |
(iv) | service of process on the Company is subject in particular to the Luxembourg procedure code and applicable treaties and conventions and a contractual provision allowing the service of process against the Company to a service agent could be overridden by Luxembourg statutory provisions allowing the valid serving of process against a person at the domicile of such person; |
(v) | the choice of law provisions will be recognised and given effect to by Luxembourg Courts unless such choices of law are meant to circumvent rules of public order of the laws that would have otherwise applied in the absence of such choice of law provisions; |
(vi) | a Luxembourg Court may refuse to apply the law of another jurisdiction if it is deemed to be contrary to Luxembourg public order; |
D-4
(vii) | a Luxembourg Court may stay proceedings brought in such court if concurrent proceedings are being brought elsewhere; |
(viii) | we express no opinion on the validity and enforceability of any other documents required, as the case may be, to be delivered in connection the transactions contemplated in the Transaction Documents; |
(ix) | a search at the RCS is not capable of conclusively revealing whether or not any Luxembourg or other Insolvency Proceedings have been initiated and the corporate documents of the Company (including, but not limited to, a notice of a winding-up order or resolution or the notice of the appointment of a receiver, manager, administrator or administrative receiver) may not be held at the Luxembourg RCS immediately and there may be a delay in the relevant notice appearing on the file of the Company. |
8. We have undertaken no responsibility to notify any Addressee of this opinion or any other person of any change in the laws of Luxembourg or their construction or application after the date of this opinion, or of any matter coming to our knowledge and occurring after the date hereof which could affect this opinion in any respect.
In this opinion Luxembourg legal concepts are expressed in English terms and not in their original French terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. This opinion may, therefore, only be relied upon under the express condition that this opinion and any issues of interpretation arising thereunder be governed by Luxembourg law and be subject to the jurisdiction of the Luxembourg courts.
This opinion is addressed to the Addressees solely for their benefit and only in connection with the offering of the Securities and the entry into of the Transaction Documents. It is not to be transmitted to anyone else nor is it to be relied upon by anyone else or for any other purpose or in connection with any other matter or be quoted or referred to in any public document or filed with anyone without our express prior written consent. Notwithstanding the foregoing, a copy of this opinion may be furnished to the Trustee in its capacity as such, and may be relied upon by the trustee in its capacity as such (subject to all of the assumptions and qualifications set forth herein).
D-5