ROYAL BANK OF CANADA U.S.$8,000,000,000 SENIOR GLOBAL MEDIUM-TERM NOTES, SERIES C DUE 9 MONTHS OR MORE FROM DATE OF ISSUE Distribution Agreement
ROYAL BANK OF CANADA
U.S.$8,000,000,000
SENIOR GLOBAL MEDIUM-TERM NOTES, SERIES C
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
January 5, 2007
RBC CAPITAL MARKETS CORPORATION
0 Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0 Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RBC XXXX XXXXXXXX INC.
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Royal Bank of Canada, a Canadian chartered Bank (the “Bank”), proposes to issue and sell from
time to time its Senior Global Medium-Term Notes, Series C (such series of securities being
hereinafter referred to as the “Series” and any securities to be issued from time to time as part
of such Series being hereinafter referred to individually as a “Security” and collectively as the
“Securities”), in an aggregate amount up to U.S.$8,000,000,000 or the equivalent thereof in other
currencies or currency units and agrees with each Agent as set forth in this Agreement. Each of
the terms “the Agents”, “such Agent”, “any Agent”, “an Agent”, “each Agent”, “the Purchasing
Agent”, and “the Selling Agent”, when used in this Agreement or in any Terms Agreement (as defined
below) or in the Annexes hereto, shall mean RBC Capital Markets Corporation and RBC Xxxx Xxxxxxxx
Inc. (individually or collectively, as the context may demand) except at any time when any other
Agent is acting as such hereunder, as contemplated in Section 12 hereof.
The Bank acknowledges and agrees that RBC Capital Markets Corporation and RBC Xxxx Xxxxxxxx
Inc. may use the Preliminary Prospectus and the Prospectus (as defined below) in connection with
offers and sales of the Securities in market-making transactions as contemplated in the Basic
Prospectus (as defined below), under the caption “Plan of Distribution” and in the Program
Prospectus (as defined below) under the caption “Supplemental Plan of Distribution” (“Secondary
Market Transactions”). The Bank further acknowledges and agrees that RBC Capital Markets
Corporation and RBC Xxxx Xxxxxxxx Inc. are under no obligation to effect any Secondary Market
Transactions and, if they do so, they may discontinue effecting such transactions at any time
without providing any notice to the Bank. The term “Agent”, whenever used in this Agreement, shall
include RBC Capital Markets Corporation and RBC Xxxx Xxxxxxxx
Inc., whether each is acting in its capacity as an Agent or acting in connection with a
Secondary Market Transaction, except as may be specifically provided otherwise herein.
Subject to the terms and conditions stated herein and to the reservation by the Bank of the
right to sell Securities directly on its own behalf, the Bank hereby (i) appoints each Agent as an
agent of the Bank for the purpose of soliciting and receiving offers to purchase Securities from
the Bank when and as instructed by the Bank pursuant to Section 3(a) hereof and (ii) agrees that,
except as otherwise contemplated herein, whenever it determines to sell Securities directly to any
Agent as principal, it will enter into a separate agreement (each a “Terms Agreement”),
substantially in the form of Annex I hereto or in such other form as may be agreed by the parties
to that particular agreement, relating to such sale in accordance with Section 3(b) hereof. This
Agreement shall not be construed to create either an obligation on the part of the Bank to sell any
Securities or an obligation of any of the Agents to purchase Securities as principal.
The Securities will be issued under an indenture, dated as of October 23, 2003 (the “Base
Indenture”), between the Bank and The Bank of New York (as successor to the corporate trust
business of JPMorgan Chase Bank, N.A.), as Trustee (the “Trustee”), as supplemented by the first
supplemental indenture dated as of July 21, 2006, between the Bank and The Bank of New York (as
successor to the corporate trust business of JPMorgan Chase Bank, N.A.), as Trustee (the “First
Supplemental Indenture,” and together with the Base Indenture, the “Indenture”). The Securities
shall have the maturity ranges, interest rates, if any, redemption provisions and other terms set
forth in the Prospectus referred to below as it may be amended or supplemented from time to time.
The Securities will be issued, and the terms and rights thereof established, from time to time by
the Bank in accordance with the Indenture.
1. Representations and Warranties of the Bank. The Bank represents and warrants to, and
agrees with, each Agent the following; provided, however, that as of the Commencement Date the Bank
does not represent and warrant with respect to the Time of Sale (as defined below), the Time of
Sale Information (as defined below) or the Issuer Free Writing Prospectus (as defined below) that:
(a) the Bank meets the requirements for use of Form F-3 (“Form F-3”) under the
Securities Act of 1933, as amended, and the rules and regulations of the United States
Securities and Exchange Commission (the “Commission”) thereunder (collectively, the “Act”),
and has filed a registration statement including a prospectus on Form F-3 (File No.
333-139359) in respect of securities (the “Shelf Securities”) with the Commission; the
various parts of such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became effective, are
hereinafter called the “Registration Statement”; such Registration Statement (including any
pre-effective amendment thereto) and any post-effective amendment thereto, each in the form
heretofore delivered to the Agents, excluding exhibits to such Registration Statement, but
including all documents incorporated by reference in the prospectus contained therein as of
the date of such prospectus, have been declared effective by the Commission in such form; as
of the Commencement Date (as defined below), no other
2
document with respect to such Registration Statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing with the Commission,
except for any documents filed with the Commission subsequent to the date of such
effectiveness and available on the Commission’s website; and no stop order suspending the
effectiveness of such Registration Statement or any post-effective amendment thereto has
been issued, and no proceeding for that purpose or pursuant to Section 8A of the Act against
the Bank or related to the offering of the Shelf Securities has been initiated or, to the
knowledge of the Bank, threatened by the Commission.
The prospectus covering the Shelf Securities dated January 5, 2007, included in such
Registration Statement, in the form first used to confirm sales of the Securities (or in the
form first made available to the Agents by the Bank to meet requests of purchasers pursuant
to Rule 173 under the Act) is hereinafter referred to as the “Basic Prospectus.” The Basic
Prospectus, as supplemented by the prospectus supplement dated January 5, 2007 specifically
relating to the Securities, in the form first used to confirm sales of the Securities (or in
the form first made available to the Agents by the Bank to meet requests of purchasers
pursuant to Rule 173 under the Act), is hereinafter referred to as the “Program Prospectus”;
the Program Prospectus, as supplemented by a pricing supplement that sets forth only the
terms of a particular issue of the Securities (and, together with the accompanying product
prospectus supplement that sets forth terms common to one or more particular issues of the
Securities (if applicable), a “Pricing Supplement”), in the form first used to confirm sales
of the Securities (or in the form first made available to the Agents by the Bank to meet
requests of purchasers pursuant to Rule 173 under the Act) is hereinafter referred to as the
“Prospectus”; the term “Preliminary Prospectus” means any preliminary form of the
Prospectus; any reference herein to any Preliminary Prospectus or Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer
to and include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”)
that are deemed to be incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or supplemented in
relation to the Securities in the form in which it is filed with the Commission in
accordance with Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing;
(b) at or prior to the time when sales of the Securities were first made (the “Time of
Sale”), the Bank had prepared the following information (collectively with the information
referred to in the next succeeding sentence, the “Time of Sale Information”): the
Preliminary Prospectus and each free-writing prospectus (as defined pursuant to Rule 405
under the Act) listed in the Terms Agreement or other agreement in respect of a specific
offering of Securities in the form of Schedule II to Annex I hereto; in
3
addition, you have informed us that the Agents may orally provide the pricing
information set out on Schedule II to Annex I hereto to prospective purchasers prior to
confirming sales. If, subsequent to the date of the Terms Agreement, the Bank and the
Agents have determined that such Time of Sale Information included an untrue statement of
material fact or omitted a statement of material fact necessary to make the information
therein, in the light of the circumstances under which it was made, not misleading and have
agreed to provide an opportunity to purchasers of the Securities to terminate their old
purchase contracts and enter into new purchase contracts, then “Time of Sale Information”
will refer to the information available to purchasers at the time of entry into the first
such new purchase contract;
(c) the documents incorporated by reference in the Registration Statement, the Time of
Sale Information and the Prospectus, as amended or supplemented, when they were filed with
the Commission, complied in all material respects with the requirements of the Act and the
Exchange Act, as applicable, and none of such documents, as of their respective issue dates,
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, in the light of
the circumstances in which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement, the Time of Sale
Information or the Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will comply in all material respects with the Act
and the Exchange Act, as applicable, and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to
be make the statements therein, in the light of the circumstances in which they were made,
not misleading; provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Bank by or on behalf of an Agent expressly for use in the
Registration Statement, the Time of Sale Information or the Prospectus as amended or
supplemented relating to a particular issuance of Securities; and no such documents were
filed with the Commission since the Commission’s close of business on the business day
immediately prior to the date of the Terms Agreement and prior to the execution of the Terms
Agreement, except as set forth in the Terms Agreement;
(d) the Registration Statement, the Time of Sale Information and the Prospectus comply
and, as amended or supplemented, if applicable, will comply as of the time of such amendment
or supplement in all material respects with the Act and, if applicable, the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”), and as to the Registration Statement
and any amendment thereto, do not and will not, as of the applicable effective date of the
Registration Statement and such amendment, contain an 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 not misleading and, as to the Prospectus and any amendment or
supplement thereto, do not and will not, as of their dates and applicable filing dates,
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
4
of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to (i) any statements or omissions
made in reliance upon and in conformity with information furnished in writing to the Bank by
or on behalf of an Agent expressly for use in the Prospectus as amended or supplemented,
relating to a particular issuance of Securities or (ii) that part of the Registration
Statement that shall constitute the Statement of Eligibility under the Trust Indenture Act
(Form T-1) of the Trustee;
(e) the Time of Sale Information, at the Time of Sale did not, and at the Closing Date
(as defined in Schedule I to the Terms Agreement), will not, 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;
provided, however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished in writing
to the Bank by or on behalf of the Agents expressly for use in such Time of Sale
Information;
(f) other than the Preliminary Prospectus and the Prospectus, each as amended and
supplemented, the Bank (including its agents and representatives, other than the Agents in
their capacity as such) has not made, used, prepared, 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 Act) that constitutes an offer to sell or solicitation of
an offer to buy the Securities (each such communication by the Bank or its agents and
representatives, other than a communication referred to in clause (i) below, an “Issuer Free
Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Act or Rule 134 under the Act or (ii) the documents listed on
Schedule II to the Terms Agreement and other written communications (including any broadly
available road show) approved in writing in advance by the Agents. The term, “broadly
available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5)
under the Act that has been made available without restriction to any person. Each such
Issuer Free Writing Prospectus complied in all material respects with the Act, has been
filed in accordance with the Act (to the extent required thereby) and, when taken together
with the Preliminary Prospectus, as amended and supplemented, most recently filed prior to
first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not,
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; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any Agent furnished in writing
to the Bank by or on behalf of the Agents expressly for use in any Issuer Free Writing
Prospectus;
(g) the Bank (A) validly exists as a Schedule I bank under the Bank Act (Canada); (B)
has the requisite corporate power and authority to execute and deliver this
5
Agreement and any Terms Agreement to be entered into in respect of the Securities; (C)
has the corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Time of Sale Information and the Prospectus; and
(D) has duly authorized, executed and delivered this Agreement and will have authorized,
executed and delivered any Terms Agreement entered in to in respect of the Securities, and
this Agreement and any such Terms Agreement constitute and will constitute, as the case may
be, the valid and legally binding agreement of the Bank 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;
(h) the Bank is not, and after giving effect to the offer and sales of the Securities
and application of the proceeds thereof as described in the Registration Statement, the Time
of Sale Information and the Prospectus, will not be, required to register as an “investment
company,” under the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, “Investment Company Act”);
(i) any auditors who audited the financial statements incorporated by reference into
the Registration Statement (any such auditor, an “Auditor”) were independent registered
chartered accountants for the period covered by such financial statements as required by the
Act, the Exchange Act, and the regulations thereunder, and the Bank Act (Canada);
(j) no stop order suspending the effectiveness of the Registration Statement has been
issued under the Act, and no proceedings for that purpose or pursuant to Section 8A of the
Act against the Bank or related to any offering of the Securities have been instituted or
are pending or, to the knowledge of the Bank, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been complied with;
(k) the Bank’s consolidated financial statements incorporated by reference in the
Registration Statement or included, in whole or in part, in the Prospectus (and any
amendments or supplements thereto), the Time of Sale Information and the Prospectus,
together with related schedules and notes, comply in all material respects with the
applicable requirements of the Act and the Exchange Act, as applicable, and present fairly,
in all material respects, the consolidated financial position, results of operations and
changes in financial position of the Bank and its subsidiaries on the basis stated therein
at the respective dates or for the respective periods to which they apply; such statements
and related notes have been prepared in accordance with Canadian generally accepted
accounting principles (“Canadian GAAP”), consistently applied throughout the periods
involved, except as may be disclosed therein; the supporting schedules, if any, included in
the Registration Statement, the Time of Sale Information and the Prospectus present fairly
in accordance with Canadian GAAP the information required to be stated
6
therein; and the other financial and statistical information and data set forth in the
Registration Statement (and any amendment or supplement thereto), the Time of Sale
Information and the Prospectus are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and records of
the Bank and its subsidiaries; and any pro forma financial information and the related notes
thereto included or incorporated by reference in the Registration Statement, the Time of
Sale Information and the Prospectus have been prepared in accordance with the applicable
requirements of the Act and the Exchange Act, as applicable, and the assumptions underlying
such pro forma financial information are reasonable and are set forth in the Registration
Statement, the Time of Sale Information and the Prospectus;
(l) the Series has been duly authorized, and, when the Securities are issued and
delivered pursuant to this Agreement and any Terms Agreement, the Securities will have been
duly executed, authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Bank entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and duly qualified under the Trust Indenture Act, and the
Indenture constitutes a valid and legally binding instrument of the Bank, enforceable in
accordance with its terms against the Bank, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the Indenture conforms, and the
Securities of any particular issuance of Securities will conform, to the descriptions
thereof contained in the Registration Statement, the Time of Sale Information and the
Prospectus as amended or supplemented to relate to such issuance of Securities;
(m) the execution and delivery of this Agreement and any Terms Agreement, the creation
and issue of the Securities and the sale of the Securities and the consummation of the
transactions contemplated by this Agreement and any Terms Agreement will not contravene any
material contract, material indenture or other material agreement to which the Bank is
bound, nor will such action result in the creation or imposition of any lien, charge or
encumbrance upon any material property or assets of the Bank, nor will such action result in
any material violation of the provisions of the Bank Act (Canada) or by-laws of the Bank or
any law, administrative regulation or administrative or court order or decree of Canada or
any political subdivision thereof;
(n) no consent, approval, authorization, order, registration or qualification of or
with any court or arbitrator or governmental or regulatory authority is required for the
issue, offer and sale of the Securities by the Bank to the Agents in accordance with this
Agreement and any Terms Agreement or the Indenture, except for such consents, approvals,
authorizations, orders and registrations or qualifications (i) as have been obtained under
the Act and the Trust Indenture Act and (ii) as may be required under applicable state
securities laws in connection with the purchase and distribution of the Securities by the
Agents;
7
(o) there has not occurred any material adverse change in the financial condition,
earnings, business or operations of the Bank and its subsidiaries, taken as a whole, from
that set forth in the Prospectus as amended or supplemented (exclusive of any amendments or
supplements thereto subsequent to the date of the Terms Agreement);
(p) there are no legal or governmental proceedings known to be pending or threatened to
which the Bank or any of its subsidiaries is a party or to which any of the properties of
the Bank or any of its subsidiaries is subject that are required to be described in the
Registration Statement, the Time of Sale Information or the Prospectus as amended or
supplemented and are not so described;
(q) the Bank acknowledges and agrees that the Agents are acting solely in the capacity
of an arm’s length contractual counterparty to the Bank with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to the Bank or any other person;
additionally, no Agent is advising the Bank or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction; the Bank shall consult
with its own advisors concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby, and the
Agents shall have no responsibility or liability to the Bank with respect thereto; any
review by the Agents of the Bank, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the benefit of the Agents and
shall not be on behalf of the Bank; and
(r) at the earliest time after the filing of the Registration Statement that the Bank
or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
under the Act) of the Securities, and at the time of signing of the Terms Agreement, the
Bank was not an “ineligible issuer” as defined in Rule 405 under the Act.
2. Representations and Warranties of the Agents. Each Agent also represents, and warrants to,
and agrees with, the Bank, that:
(a) it will comply with all applicable laws and regulations in force in any jurisdiction in
which it purchases, offers or sells Securities or possesses or distributes the Preliminary
Prospectus or the Prospectus or any other offering material and will obtain any consent, approval
or permission required by it for the purchase, offer or sale by it of Securities under the laws and
regulations in force in any jurisdiction to which it is subject or in which it makes such
purchases, offers or sales; and
(b) it will not offer or sell any Securities acquired pursuant to this Agreement or any Terms
Agreement, directly or indirectly, in Canada or to any resident of Canada without the consent of
the Bank, and further agrees that it will include a comparable provision in any sub-underwriting,
banking group or selling group agreement or similar arrangement with respect to any Securities that
may be entered into by such Agent.
8
(c) (i) it has not made and will not make an offer of Securities to the public in the United
Kingdom within the meaning of section 102B of the Financial Services and Markets Act 2000 (as
amended) (the “FSMA”) except 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 or otherwise in circumstances which do not require the publication by the Bank
of a prospectus pursuant to the Prospectus Rules of the Financial Services Authority; (ii) 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 FSMA) to persons who have professional experience in matters relating to
investments falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005 or in circumstances in which section 21 of FSMA does not apply to the Bank;
and (iii) it has complied with, and will comply with all applicable provisions of FSMA with respect
to anything done by it in relation to the Securities in, from or otherwise involving the United
Kingdom;
(d) in relation to each member state of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”), 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 at any time:
(i) 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;
(ii) 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 €43,000,000
and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Bank of a
prospectus pursuant to Article 3 of the Prospectus Directive;
(e) the Securities have not been registered under the Securities and Exchange Law of Japan and
are not being offered or sold and may not be offered or sold, directly or indirectly, in Japan or
to, or for the account or benefit, of any resident of Japan, or to, or for the account or benefit,
of any resident for reoffering or resale, directly or indirectly, in Japan or to, or for the
account or benefit, of any resident of Japan except (A) pursuant to an exemption from the
registration requirements of, or otherwise in compliance with, the Securities and Exchange Law of
Japan and (B) in compliance with the other relevant laws and regulations of Japan; each
9
agrees to provide any necessary information on Securities denominated or payable in Yen to the
Bank (which shall not include the names of clients) so that the Bank may make any required reports
to the Ministry of Finance through its designated agent;
(f) the Securities may not be offered or sold by means of any document other than to persons
whose ordinary business is to buy or sell shares or debentures, whether as principal or agent, or
in circumstances which do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap. 32) of Hong Kong, and no advertisement, invitation or document relating to the
Securities may be issued, whether in Hong Kong or elsewhere, which is directed at, or the contents
of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do
so under the securities laws of Hong Kong) other than with respect to the Securities which are or
are intended to be disposed of only to persons outside Hong Kong or only to “professional
investors” within the meaning of the Securities and Futures Ordinance (Cap. 571) of Hong Kong and
any rules made thereunder;
(g) (i) neither the prospectus supplement nor any accompanying prospectus has been registered
as a prospectus with the Monetary Authority of Singapore. Accordingly, any prospectus supplement
or any accompanying prospectus and any other document or material in connection with the offer or
sale, or invitation for subscription or purchase, of the Securities may not be circulated or
distributed, nor may the Securities be offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly, to persons in Singapore other than (A) to
an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of
Singapore (the “SFA”), (B) to a relevant person, or any person pursuant to Section 275(1A), and in
accordance with the conditions, specified in Section 275 of the SFA or (C) otherwise pursuant to,
and in accordance with the conditions of, any other applicable provision of the SFA; and (ii) where
the Securities are purchased under Section 275 by a relevant person which is: (A) a corporation
(which is not an accredited investor) the sole business of which is to hold investments and the
entire share capital of which is owned by one or more individuals, each of whom is an accredited
investor; or (B) a trust (where the trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor, shares, debentures and units of
shares and debentures of that corporation or the beneficiaries’ rights and interest in that trust
shall not be transferable for 6 months after that corporation or that trust has acquired the shares
under Section 275 except: (A) to an institutional investor under Section 274 of the SFA or to a
relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions,
specified in Section 275 of the SFA; (B) where no consideration is given for the transfer; or (C)
by operation of law; and
(h) the issue of any Securities denominated in Swiss francs or carrying a Swiss franc-related
element will be effected in compliance with the relevant regulations of the Swiss National Bank,
which currently require that such issues have a maturity of more than one year, to be effected
through a bank domiciled in Switzerland that is regulated under the Swiss Federal Law on Banks and
Savings Banks of 1934 (as amended) (which includes a branch or subsidiary located in Switzerland of
a foreign bank) or through a securities dealer which has been licensed as a securities dealer under
the Swiss Federal Law on Stock Exchanges and Securities Trading of 1995 (except for issues of
Securities denominated in Swiss francs on a syndicated basis, where
10
only the lead manager need be a bank domiciled in Switzerland); the relevant agent agrees to
report certain details of the relevant transaction to the Swiss National Bank no later than the
time of delivery of the Securities.
With regard to each Securities, the relevant purchaser will be required to comply with those
restrictions that the Bank and the relevant purchaser shall agree and as shall be set out in the
relevant Pricing Supplement.
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 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.
3. Appointment as Agents.
(a) On the basis of the representations and warranties herein contained, and subject to the
terms and conditions herein set forth, each of the Agents hereby severally and not jointly agrees,
upon receipt of instructions from the Bank, to act as agent of the Bank and to use its reasonable
efforts to solicit and receive offers to purchase a particular Security or Securities from the Bank
upon the terms and conditions set forth in the Time of Sale Information and the Prospectus as
amended or supplemented from time to time. Each Agent shall solicit offers to purchase only
Securities having such terms, and shall solicit such offers only during such periods, as the Bank
shall instruct such Agent. The appointment of the Agents hereunder is not exclusive and the Bank
may from time to time offer Securities for sale otherwise than to or through an Agent. It is
understood that if from time to time the Bank is approached by a prospective agent offering to
solicit a specific purchase of Securities, the Bank may enter into an agreement with such agent
with respect to such specific purchase upon such terms as the Bank and such agent may agree. These
provisions shall not limit Section 5(f) hereof or any similar provision included in any Terms
Agreement.
Procedural details relating to the issue and delivery of Securities, the solicitation of
offers to purchase Securities and the payment in each case therefor shall be as set forth in the
Administrative Procedures Memorandum attached hereto as Annex II as it may be amended from time to
time by written agreement between the Agents and the Bank (the “Administrative Procedure”). The
provisions of the Administrative Procedure (except as otherwise stated in an applicable Terms
Agreement) shall apply to all transactions contemplated hereunder. Each Agent and the Bank agree
to perform the respective duties and obligations specifically provided to be performed by each of
them in the Administrative Procedure. The Bank will furnish to the Trustee a copy of the
Administrative Procedure as from time to time in effect.
The Bank reserves the right, in its sole discretion, at any time when the Bank has instructed
any Agent to solicit offers to purchase the Securities, to instruct such Agent to suspend, for any
period of time or permanently, the solicitation of offers to purchase the
11
Securities. As soon as practicable, but in any event not later than one business day in New
York City, after receipt of notice from the Bank, such Agent will suspend solicitation of offers to
purchase Securities from the Bank until such time as the Bank has instructed such Agent to resume
such solicitation. During such period, the Bank shall not be required to comply with the
provisions of Sections 5(h), 5(i), 5(j), 5(k) and 5(l) with regard to such Agent. Upon advising
such Agent that such solicitation may be resumed, however, the Bank shall simultaneously provide
the documents (if any) required to be delivered by Sections 5(h), 5(i), 5(j), 5(k) and 5(l), and
such Agent shall have no obligation to solicit offers to purchase the Securities until such
documents have been received by such Agent. In addition, any failure by the Bank to comply with
its obligations hereunder, including its obligations to deliver the documents required by Sections
5(h), 5(i), 5(j), 5(k) and 5(l), with regard to any Agent shall automatically terminate such
Agent’s obligations hereunder, including its obligations to solicit offers to purchase the
Securities hereunder as agent or to purchase Securities hereunder as principal.
The Bank agrees to pay each Agent a commission, at the time of settlement of any sale of a
Security by the Bank as a result of a solicitation made by such Agent, in an amount equal to
between 0.0% and 1.0% of the principal amount of such Security sold, depending upon the stated
maturity of such Security, or in such other amount as may be agreed between the Agent and the Bank
and as set forth in the Prospectus as amended and supplemented under the caption “Supplemental Plan
of Distribution”.
(b) Each sale of Securities by the Bank to any Agent as principal shall be made in accordance
with the terms of this Agreement and (unless the Bank and such Agent shall otherwise agree) a Terms
Agreement which will provide for the sale of such Securities by the Bank to, and the purchase
thereof by, such Agent; such Terms Agreement may also specify certain provisions relating to the
reoffering of such Securities by such Agent; the commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed to have been made
on the basis of the representations and warranties of the Bank herein contained and shall be
subject to the terms and conditions herein set forth; each Terms Agreement shall specify the
principal amount of Securities to be purchased by any Agent pursuant thereto, the price to be paid
to the Bank for such Securities, any provisions relating to rights of, and default by, underwriters
acting together with such Agent in the reoffering of the Securities and the time and date and place
of delivery of and payment for such Securities; such Terms Agreement shall also specify any
requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to
Section 5 hereof and such Terms Agreement may also include such other provisions (including
provisions that modify this Agreement insofar as it sets forth the agreement between the Bank and
such Agent) as the Bank and such Agent may agree upon. Unless otherwise specified in a Terms
Agreement, each Agent proposes to offer Securities purchased by it as principal from the Bank for
sale at prevailing market prices or prices related thereto at the time of sale, which may be equal
to, greater than or less than the price at which such Securities are purchased by such Agent from
the Bank.
For each sale of Securities by the Bank to an Agent as principal that is not made pursuant to
a Terms Agreement, the Bank agrees to pay such Agent a commission (or grant an equivalent
12
discount) as provided in Section 3(a) hereof and in accordance with the schedule set forth
therein (or in such amount as may be agreed between such Agent and the Bank).
Each time and date of delivery of and payment for Securities to be purchased from the Bank by
an Agent as principal, whether set forth in a Terms Agreement or in accordance with the
Administrative Procedure, is referred to herein as a “Time of Delivery”.
(c) Each Agent agrees, with respect to any Security denominated in a currency other than U.S.
dollars, and whether acting as agent, as principal under any Terms Agreement or otherwise
(including, in the case of RBC Capital Markets Corporation or RBC Xxxx Xxxxxxxx Inc., in any
Secondary Market Transaction), not to solicit offers to purchase or otherwise offer, sell or
deliver such Security, directly or indirectly, in, or to residents of, the country issuing such
currency, except as permitted by applicable law.
4. Commencement Date. The documents required to be delivered pursuant to Section 8 hereof on
the Commencement Date (as defined below) shall be delivered to the Agents at the offices of
Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City
time, on the date of this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Bank but in no event shall be later than the day prior to the
date on which solicitation of offers to purchase Securities is commenced or on which any Terms
Agreement is executed (such time and date being referred to herein as the “Commencement Date”).
5. Certain Agreements of the Bank. The Bank agrees with each Agent:
(a) (i) that the Bank will file the Program Prospectus, the Preliminary Prospectus and
the Prospectus, each as amended and supplemented in a form approved by the Agents, with the
Commission within the time periods specified by the Act, will file any Issuer Free Writing
Prospectus to the extent required by Rule 433 under the Act and will file promptly all
reports and other information required to be filed by the Bank with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or, in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required in connection with the offering or
sale of the Securities;
(ii) to make no amendment or supplement to the Registration Statement, the Basic
Prospectus, the Program Prospectus, the Time of Sale Information or the Prospectus (A) prior
to the Commencement Date which shall be disapproved by any Agent promptly after reasonable
notice thereof, (B) except as required by law, after the date of any Terms Agreement or
other agreement by an Agent to purchase Securities as principal and prior to the related
Time of Delivery if such amendment or supplement is reasonably objected to by any Agent
party to such Terms Agreement or so purchasing as principal promptly after reasonable notice
thereof or (C) during the period beginning on the Commencement Date and continuing for as
long as may be required under applicable law, in the reasonable judgment of RBC Capital
Markets Corporation after consultation with the Bank, in order to offer and sell any
Securities in Secondary Market Transactions
13
as contemplated by the Prospectus (the “Secondary Transactions Period”), which shall be
disapproved by RBC Capital Markets Corporation promptly after reasonable notice thereof;
(iii) that before preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, the Bank will furnish to the Agents and counsel for the
Agents a copy of the proposed Issuer Free Writing Prospectus for review and will not
prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus
to which the Agents reasonably object;
(iv) to prepare, with respect to any Securities to be sold through or to such Agent
pursuant to this Agreement, a Pricing Supplement with respect to such Securities in a form
previously approved by such Agent and to file such Pricing Supplement (or components
thereof, as the case may be) with the Commission within such time as may be required by the
Act;
(v) to file promptly with the Commission, all reports required to be filed by the Bank
with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act, for so
long as the delivery of a prospectus is required in connection with the offering or sale of
the Securities (including, in the case of RBC Capital Markets Corporation or RBC Xxxx
Xxxxxxxx Inc., in any Secondary Market Transactions during the Secondary Transactions
Period), and during such same period to advise the Agents (with confirmation in writing),
promptly after it receives notice thereof, of (a) the time when any amendment to the
Registration Statement, the Preliminary Prospectus or the Prospectus has been filed or
becomes effective or any supplement to the Preliminary Prospectus, the Prospectus or any
amendment thereof, or of any Issuer Free Writing Prospectus, has been filed with the
Commission, of (b) the issuance by the Commission of any stop order or of any order
preventing or suspending the effectiveness or the use of any prospectus relating to the
Securities or the initiation or threatening of any proceeding for that purpose or pursuant
to Section 8A of the Act, of (c) the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of (d) the initiation or threatening of any proceeding
for any such purpose, of (e) any request by the Commission for the amending or supplementing
of the Registration Statement, the Preliminary Prospectus or the Prospectus or for
additional information relating to the Securities, the Registration Statement, the
Preliminary Prospectus or the Prospectus or the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the Commission for any
additional information, or (f) of the occurrence of any event within six months after the
time of issue of the Prospectus as amended or supplemented in connection with the offering
or sale of the Securities (including Securities purchased from the Bank by an Agent as
principal and including, in the case of RBC Capital Markets Corporation or RBC Xxxx Xxxxxxxx
Inc., in any Secondary Market Transactions during the Secondary Transactions 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
14
order to make the statements therein, in the light of the circumstances existing when
the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus is
delivered to a purchaser, not misleading; and
(vi) in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any Preliminary Prospectus or Prospectus relating to the
Securities or suspending any such qualification (or if any such action is known to be
pending), to use promptly its best efforts to obtain its withdrawal (or prevent its
issuance).
(b) from time to time to take such action as such Agent may reasonably request to
qualify the Securities for offering and sale under the securities laws of such states of the
United States of America as such Agent may reasonably request and to comply with such laws
so as to permit the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Securities (including, in the
case of RBC Capital Markets Corporation or RBC Xxxx Xxxxxxxx Inc., in any Secondary Market
Transactions during the Secondary Transactions Period), provided that in connection
therewith the Bank shall not be required to file a prospectus or equivalent document or to
qualify as a foreign corporation or to subject itself to taxation as doing business or to
file a general consent to service of process in any jurisdiction;
(c) (i) during the Prospectus Delivery Period (as defined below), to furnish such
Agent with copies of the Prospectus as amended or supplemented (other than any Pricing
Supplement (except as provided in the Administrative Procedures)) and of each Issuer Free
Writing Prospectus in such quantities as such Agent may reasonably request; as used herein,
the term “Prospectus Delivery Period” means such period of time after the first date of the
public offering of the Securities as in the opinion of counsel for the Agents a prospectus
relating to the Securities is required by law to be delivered (or required to be delivered
but for Rule 172 under the Act) in connection with sales of the Securities by any Agent or
dealer;
(ii) (A) if the delivery of a Prospectus is required at any time prior to six months
after the time of issue of the Prospectus as amended or supplemented in connection with the
offering or sale of the Securities (including Securities purchased from the Bank by such
Agent as principal and including, in the case of RBC Capital Markets Corporation or RBC Xxxx
Xxxxxxxx Inc., in any Secondary Market Transactions during the Secondary Transactions
Period), 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, not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with Québec
securities laws, the Act, the Exchange Act
15
or, if applicable, the Trust Indenture Act, to notify such Agent and request such
Agent, in its capacity as agent of the Bank, to suspend solicitation of offers to purchase
Securities from the Bank (and, if so notified, such Agent shall cease such solicitations as
soon as practicable, but in any event not later than one business day in New York City
later); and if the Bank shall decide to amend or supplement the Registration Statement or
the Prospectus as then amended or supplemented, or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or, if applicable, the Trust Indenture Act, to so advise such Agent promptly by
telephone (with confirmation in writing) and to prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or the Prospectus as
then amended or supplemented that will correct such statement or omission or effect such
compliance, provided, however, that if the Bank sells Securities to one or more Agents as
principal pursuant to a Terms Agreement, the Bank shall be required to amend or supplement
the Registration Statement or the Prospectus as then amended or supplemented, or to file
under the Exchange Act any document incorporated by reference in the Prospectus in order to
comply with the Act, the Exchange Act or, if applicable, the Trust Indenture Act and (B) if
at any time prior to the Time of Delivery or Closing Date (i) any event shall occur or
condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would 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, not misleading or (ii) it is necessary to amend or supplement the Time of
Sale Information to comply with law, the Bank will immediately notify the Agents thereof and
forthwith prepare and, subject to paragraph (a) above, file with the Commission (to the
extent required) and furnish to the Agents and to such dealers as the Agents may designate,
such amendments or supplements to the Time of Sale Information as may be necessary so that
the statements in the Time of Sale Information as so amended or supplemented will not, in
the light of the circumstances, be misleading or so that the Time of Sale Information will
comply with law;
(iii) notwithstanding paragraph (ii) above, if during the period specified in such
paragraph such Agent continues to own Securities purchased from the Bank by such Agent as
principal or such Agent is otherwise required to deliver a prospectus in respect of
transactions in the Securities (including, in the case of RBC Capital Markets Corporation or
RBC Xxxx Xxxxxxxx Inc., in any Secondary Market Transactions during the Secondary
Transactions Period), to promptly prepare and file with the Commission such an amendment or
supplement and furnish without charge to such Agent as many copies as it may from time to
time during such period reasonably request of such amendment or supplement; provided,
however, that the Bank may elect, upon notice to RBC Capital Markets Corporation and RBC
Xxxx Xxxxxxxx Inc., not to comply with this paragraph (iii) with respect to any Secondary
Market Transaction, but only for a period or periods that the Bank reasonably determines are
necessary in order to avoid premature disclosure of material, non-public information,
unless, notwithstanding such election, such disclosure would otherwise be required under
this Agreement; and provided, further, that no such period or periods described in the
preceding proviso shall exceed 90 days
16
in the aggregate during any period of 12 consecutive calendar months. Upon
receipt of any such notice, RBC Capital Markets Corporation and RBC Xxxx Xxxxxxxx Inc. shall
cease using the Prospectus or any amendment or supplement thereto in connection with
Secondary Market Transactions until it receives notice from the Bank that it may resume
using such document (or such document as it may be amended or supplemented);
(d) the Bank will make generally available to its security holders and the Agents as
soon as practicable an earning statement that satisfies the provisions of Section 11(a) of
the Act and Rule 158 of the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the Bank occurring after the
“effective date” (as defined in Rule 158) of the Registration Statement;
(e) so long as any Securities are outstanding, to furnish to such Agent copies of all
reports or other communications (financial or other) furnished to stockholders generally,
and to deliver to such Agent (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Bank is listed; and (ii) such additional
information concerning the business and financial condition of the Bank as such Agent may
from time to time reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Bank and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(f) that, if required pursuant to the terms of a Terms Agreement, from the date of such
Terms Agreement with such Agent or other agreement by such Agent to purchase Securities as
principal and continuing to and including the later of (i) the termination of the trading
restrictions for the Securities purchased thereunder, as notified to the Bank by such Agent,
and (ii) the related Time of Delivery, the Bank will not, without the prior written consent
of such Agent, offer, sell, contract to sell or otherwise dispose of any debt securities of
the Bank which both mature more than 9 months after such Time of Delivery and are
substantially similar to the Securities except pursuant to this Agreement or any Terms
Agreement, or except in an offering of Securities that are not and are not required to be
registered under the Act or except in connection with a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a continuous offering of
medium-term debt securities (other than in Secondary Market Transactions);
(g) that each acceptance by the Bank of an offer to purchase Securities hereunder
(including any purchase from the Bank by such Agent as principal not pursuant to a Terms
Agreement), and each execution and delivery by the Bank of a Terms Agreement with such
Agent, shall be deemed to be an affirmation to such Agent that the representations and
warranties of the Bank contained in or made pursuant to this Agreement are true and correct
as of the date of such acceptance or of such Terms Agreement, as the case may be, as though
made at and as of such date, and an undertaking that such representations and warranties
will be true and correct as of the
17
settlement date for the Securities relating to such acceptance or as of the Time of
Sale or the Time of Delivery relating to such sale, as the case may be, as though made at
and as of such date (except that such representations and warranties shall be deemed to
relate to the Registration Statement, the Prospectus and the Time of Sale Information as
amended and supplemented relating to such Securities);
(h) that reasonably in advance of each time an annual report on Form 40-F of the Bank,
or any amendment thereto, is filed with the Commission and each time the Bank sells
Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion or opinions by Xxxxx Xxxx & Xxxxxxxx as a condition to
the purchase of Securities pursuant to such Terms Agreement, the Bank shall furnish to such
counsel such papers and information as they may reasonably request to enable them to furnish
to such Agent the opinion or opinions referred to in Section 8(d) hereof;
(i) that reasonably promptly after each time an annual report on Form 40-F of the Bank,
or any amendment thereto, is filed with the Commission and each time the Bank sells
Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a written opinion under this Section 5(i) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Bank shall cause Xxxxxx Xxxxxxx
LLP, Canadian counsel for the Bank, to furnish such Agent a written opinion, dated the date
of such amendment, supplement or incorporation or the Time of Delivery relating to such
sale, as the case may be, in form satisfactory to such Agent, to the effect that such Agent
may rely on the opinion of such counsel referred to in Section 8(b) hereof which was last
furnished to such Agent to the same extent as though it were dated the date of such letter
authorizing reliance (except that the statements in such last opinion shall be deemed to
relate to the Registration Statement, the Prospectus and the Time of Sale Information as
amended and supplemented to such date) or, in lieu of such opinion, an opinion of the same
tenor as the opinion of such counsel referred to in Section 8(b) hereof but modified to
relate to the Registration Statement, the Prospectus and the Time of Sale Information as
amended and supplemented to such date;
(j) that reasonably promptly after each time an annual report on Form 40-F of the Bank,
or any amendment thereto, is filed with the Commission and each time the Bank sells
Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a written opinion under this Section 5(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Bank shall cause Xxxxxxxx &
Xxxxxxxx LLP, United States counsel for the Bank, to furnish such Agent a written opinion,
dated the date of such amendment, supplement or incorporation or the Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such Agent, to the effect
that such Agent may rely on the opinion of such counsel referred to in Section 8(c) hereof
which was last furnished to such Agent to the same extent as though it were dated the date
of such letter authorizing reliance (except that the statements in such last opinion shall
be deemed to relate to the Registration Statement, the Prospectus and the Time of Sale
Information as amended and supplemented to such
18
date) or, in lieu of such opinion, an opinion of the same tenor as the opinion of such
counsel referred to in Section 8(c) hereof but modified to relate to the Registration
Statement, the Prospectus and the Time of Sale Information as amended and supplemented to
such date;
(k) that reasonably promptly after each time an annual report on Form 40-F of the Bank,
or any amendment thereto, is filed with the Commission and each time the Bank sells
Securities to such Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 5(k) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Bank shall cause the Auditors to furnish
such Agent a letter, dated the date of such amendment, supplement or incorporation or the
Time of Delivery relating to such sale, as the case may be, in form satisfactory to such
Agent, of the same tenor as the letter referred to in Section 8(e) hereof but modified to
relate to the Registration Statement, the Prospectus and the Time of Sale Information as
amended or supplemented to the date of such letter; provided, however, that, with respect to
any financial information or other matter, such letter may reconfirm as true and correct at
such date as though made at and as of such date, rather than repeat, statements with respect
to such financial information or other matter made in the letter referred to in Section 8(e)
hereof which was last furnished to such Agent;
(l) that reasonably promptly after each time an annual report on Form 40-F of the Bank,
or any amendment thereto, is filed with the Commission and each time the Bank sells
Securities to such Agent as principal and the applicable Terms Agreement specifies the
delivery of a certificate under this Section 5(l) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Bank shall furnish or cause to be furnished
forthwith to such Agent a certificate signed by an executive officer of the Bank, dated the
date of such supplement, amendment or incorporation or the Time of Delivery relating to such
sale, as the case may be, to the effect that the statements contained in the certificate
referred to in Section 8(g) hereof which was last furnished to such Agent are true and
correct at such date as though made at and as of such date (except that such statements
shall be deemed to relate to the Registration Statement, the Prospectus and the Time of Sale
Information as amended and supplemented to such date), or, in lieu of such certificate, a
certificate of the same tenor as the certificates referred to in said Section 8(g) but
modified to relate to the Registration Statement, the Prospectus and the Time of Sale
Information as amended and supplemented to such date; and
(m) to offer to any person who has agreed to purchase Securities from the Bank as the
result of an offer to purchase solicited by such Agent the right to refuse to purchase and
pay for such Securities if, on the related settlement date fixed pursuant to the
Administrative Procedure, any condition set forth in Section 8(a) or 8(f) hereof shall not
have been satisfied (it being understood that the judgment of such person with respect to
the impracticability of such purchase of Securities shall be substituted, for purposes of
this Section 5(m), for the respective judgments of an Agent with respect to certain matters
referred to in Sections 8(a)(iii) or 8(f) and hereof, and that such Agent shall have
19
no duty or obligation whatsoever to exercise the judgment permitted under such Sections
8(a)(iii) and 8(f) on behalf of any such person).
6. Certain Agreements of the Agents. Each Agent 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 Act (which term
includes use of any written information furnished to the Commission by the Bank and not
incorporated by reference into the Registration Statement and any press release issued by the Bank)
other than (i) a free writing prospectus that contains no “issuer information” (as defined in Rule
433(h)(2) under the Act) that was not included (including through incorporation by reference) in
the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer
Free Writing Prospectus listed on Schedule II to the Terms Agreement or other agreement in respect
of a specific offering of Securities in the form of Schedule II to the Terms Agreement or prepared
pursuant to Section 5(a) above or (iii) any free writing prospectus prepared by an Agent and
approved by the Bank in advance in writing (each such free writing prospectus referred to in
clauses (i) or (iii), an “Agent Free Writing Prospectus”);
(b) it has not and will not distribute any Agent Free Writing Prospectus referred to in clause
(a)(i) in a manner reasonably designed to lead to its broad unrestricted dissemination;
(c) it has not and will not, without the prior written consent of the Bank, use any free
writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided that
Agents may use a term sheet substantially in the form of Schedule III to the Terms Agreement, and a
Bloomberg term sheet that contains some or all of the information in Schedule III to the Terms
Agreement, without the consent of the Bank; provided further that any Agent using such agreed term
sheet shall notify the Bank, and provide a copy of such term sheet to the Bank, prior to, or
substantially concurrently with, the first use of such term sheet;
(d) it will, pursuant to reasonable procedures developed in good faith, retain copies of each
free writing prospectus used or referred to by it, in accordance with Rule 433 under the Act; and
(e) it is not subject to any pending proceeding under Section 8A of the Act with respect to
the offering (and will promptly notify the Bank if any such proceeding against it is initiated
during the Prospectus Delivery Period).
7. Payment of Certain Expenses. The Bank covenants and agrees with each Agent that the Bank
will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Bank’s
counsel and accountants in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of the Registration
Statement, the Program Prospectus, any Preliminary Prospectus, the Prospectus, any Pricing
Supplements, any Issuer Free Writing Prospectus, any Time of Sale Information and all other
amendments and supplements thereto and the mailing and delivering of copies thereof to such Agent;
(ii) the cost of printing or producing this Agreement, any Terms Agreement, any
20
Indenture, any blue sky memorandum, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Agents in connection with such qualification and in connection
with the Blue Sky Memorandum; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements of counsel for the
Agents in connection with, any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii)
the fees and expenses of the Trustee and any agent of the Trustee and any transfer or paying agent
of the Bank and the fees and disbursements of counsel for the Trustee or such agent in connection
with the Indenture and the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section, and Section 8
hereof, the Agents will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make; provided, however, that the reasonable fees and
disbursements of the Agents’ counsel for the establishment of this Series shall be paid by the
Bank.
8. Conditions to the Obligations of the Agents. The obligation of any Agent, as agent of the
Bank, at any time (“Solicitation Time”) to solicit offers to purchase the Securities from the Bank
and the obligation of any Agent to purchase Securities from the Bank as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent’s discretion, to the
condition that all representations and warranties and other statements of the Bank herein (and, in
the case of an obligation of an Agent under a Terms Agreement, in or incorporated by reference in
such Terms Agreement) are true and correct at and as of the Commencement Date and any applicable
date referred to in Section 5(l) hereof that is prior to such Solicitation Time or Time of
Delivery, as the case may be, and at and as of such Solicitation Time or at and as of both such
Time of Delivery and Time of Agent Purchase, as the case may be (“Time of Agent Purchase” shall
mean, with respect to any obligation of an Agent to purchase Securities as principal, the time when
the related Terms Agreement becomes effective or if there is no Terms Agreement, the time when the
Agent otherwise becomes committed to purchase the Securities); the condition that prior to such
Solicitation Time or Time of Delivery, as the case may be, the Bank shall have performed all of its
obligations hereunder and under any applicable Terms Agreement theretofore to be performed; and the
following additional conditions:
(a) (i) the Registration Statement (or if a post-effective amendment thereto is
required to be filed under the Act, such post-effective amendment) shall have become
effective; no stop order suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose or pursuant to Section 8A under the Act shall
be pending before or threatened by the Commission; the Preliminary Prospectus, the
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the
Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the extent
required by Rule 433 under the Act) and in accordance with Section 5(a) hereof; and all
21
requests by the Commission for additional information shall have been complied with to
the reasonable satisfaction of the Agents; (ii) there shall not have occurred any
downgrading in the rating accorded any debt securities of the Bank by Standard & Poor’s
Ratings Group or Xxxxx’x Investors Service, Inc., or any public announcement by either such
organization of an intended or potential downgrading; and (iii) there shall have been no
material adverse change in the financial condition, earnings, business or operations of the
Bank and its subsidiaries, taken as a whole, from that set forth in the Registration
Statement, the Time of Sale Information (excluding any amendment or supplement thereto) and
the Prospectus (exclusive of any amendments or supplements thereto prior to the Solicitation
Time or Time of Delivery, as the case may be), which, in the judgment of such Agent, makes
it impracticable to proceed with the solicitation by such Agent of offers to purchase
Securities from the Bank or the purchase by such Agent of Securities from the Bank as
principal, as the case may be, on the terms and in the manner contemplated in the Terms
Agreement, Registration Statement, the Time of Sale Information and the Prospectus as first
amended or supplemented relating to the Securities to be delivered at the relevant Time of
Delivery.
(b) Xxxxxx Xxxxxxx LLP, Canadian counsel for the Bank, shall have furnished to such
Agent their written opinions, dated the Commencement Date and each applicable date referred
to in Section 5(i) hereof that is on or prior to such Solicitation Time or Time of Delivery,
as the case may be, subject to such exceptions and qualifications as would be customary, to
the effect that:
(i) [to be delivered on a Time of Delivery — the Bank validly exists as a
Schedule I bank under the Bank Act (Canada) and has the corporate power to create,
issue and sell the Securities] [to be delivered on other dates — the Bank validly
exists as a Schedule I bank under the Bank Act (Canada) and has the corporate power
to create the Series and to create, issue and sell the Securities];
(ii) [to be delivered on a Time of Delivery — the issue, sale and delivery of
the Securities have been duly authorized by the Bank and all necessary corporate
action has been taken by the Bank to validly issue the Securities][to be delivered
on other dates — the creation of the Series has been duly authorized by the Bank and
when the terms of particular Securities and the issuance and sale of such Securities
have been duly authorized by all necessary corporate action in conformity with the
Indenture, and when such Securities have been duly executed, authenticated and
issued in accordance with the Indenture and delivered against payment in accordance
with this Agreement and any applicable Terms Agreement, such Securities will be
validly issued];
(iii) [to be delivered on a Time of Delivery — this Agreement and any
applicable Terms Agreement have been duly authorized, executed and, to the extent
delivery is a matter governed by the laws of the Province of Québec or Ontario and
the federal laws of Canada applicable therein, delivered by the Bank][to be
delivered on other dates — this Agreement has been duly authorized,
22
executed and, to the extent delivery is a matter governed by the laws of the
Province of Québec or Ontario and the federal laws of Canada applicable therein,
delivered by the Bank];
(iv) the Indenture has been duly authorized, executed and, to the extent
delivery is a matter governed by the laws of the Province of Québec or Ontario and
the federal laws of Canada applicable therein, delivered by the Bank and, with
respect to the provisions thereof governed by the laws of the Province of Ontario
and the federal laws of Canada applicable therein, constitutes a legal, valid and
binding obligation of the Bank enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors’ rights, to general
equity principles and to limitations under the Currency Act (Canada);
(v) [to be delivered on a Time of Delivery — the execution and delivery by the
Bank of, and the performance by the Bank of its obligations under this Agreement,
any applicable Terms Agreement, the Indenture and the Securities do not contravene
any existing provision of applicable law or result in a breach (whether after notice
or lapse of time or both) of any of the terms, conditions or provisions of the Bank
Act (Canada) or the by-laws of the Bank][to be delivered on other dates — the
execution and delivery by the Bank of, and the performance by the Bank of its
obligations under this Agreement and the Indenture do not contravene any existing
provision of applicable law or result in a breach (whether after notice or lapse of
time or both) of any of the terms, conditions or provisions of the Bank Act (Canada)
or the by-laws of the Bank];
(vi) [to be delivered on a Time of Delivery — no registration, filing or
recording of the Indenture under the laws of the Province of Québec or Ontario and
the federal laws of Canada applicable therein is necessary in order to preserve or
protect the validity or enforceability of the Indenture or the Securities][to be
delivered on other dates — no registration, filing or recording of the Indenture
under the laws of the Provinces of Québec or Ontario and the federal laws of Canada
applicable therein is necessary in order to preserve or protect the validity or
enforceability of the Indenture];
(vii) [to be delivered on a Time of Delivery — no consent, approval or
authorization of, or registration, recordation or filing with, any governmental body
or agency in Canada is required on the part of the Bank pursuant to the laws of the
Province of Québec and the federal laws of Canada applicable therein for the
issuance and sale by the Bank of the Securities to such Agent pursuant to this
Agreement, any applicable Terms Agreement and the Indenture, except such as have
been obtained under the Bank Act (Canada) and the Québec securities laws];
(viii) [to be delivered on a Time of Delivery — there are no documents required
to be filed with the Autorité des marchés financiers (the “AMF”) in
23
connection with the Prospectus, any Pricing Supplement or any amendment or
supplement thereto or any Preliminary Prospectus that have not been filed as
required][to be delivered on other dates — there are no documents required to be
filed with the Autorité des marchés financiers (the “AMF”) in connection with the
Registration Statement or the Prospectus that have not been filed as required except
for the notice required to be filed by the Bank pursuant to section 12 of the
Securities Act (Québec) if any subordinated debt is offered pursuant to the Basic
Prospectus];
(ix) the statements in the Prospectus under the caption “Tax
Consequences—Canadian Taxation,” insofar as such statements constitute a summary of
the Canadian tax laws referred to therein, are accurate and fairly summarize in all
material respects the Canadian tax laws referred to therein;
(x) the Canadian disclosure documents that are incorporated by reference in the
Registration Statement (except for the financial statements and other financial and
statistical data included therein or omitted therefrom, as to which such counsel
express no opinion), when they were filed with the AMF under Québec securities laws,
appear on their face to have been appropriately responsive in all material respects
to the requirements of Québec securities laws as interpreted and applied by the AMF;
(xi) [to be delivered on a Time of Delivery — a court of competent jurisdiction
in the Province of Ontario (an “Ontario Court”) would give effect to the choice of
the law of the State of New York (“New York Law”) as the proper law governing the
Indenture (to the extent the Indenture is governed by New York Law), the Securities,
this Agreement and any applicable Terms Agreement, provided that such choice of law
is bona fide (in the sense that it was not made with a view to avoiding the
consequences of the laws of any other jurisdiction) and provided that such choice of
law is not contrary to public policy (“Public Policy”), as that term is understood
under the laws in the Province of Ontario and the federal laws of Canada applicable
therein (“Ontario Law”)][to be delivered on other dates — a court of competent
jurisdiction in the Province of Ontario (an “Ontario Court”) would give effect to
the choice of the law of the State of New York (“New York Law”) as the proper law
governing the Indenture (to the extent the Indenture is governed by New York Law)
and this Agreement, provided that such choice of law is bona fide (in the sense that
it was not made with a view to avoiding the consequences of the laws of any other
jurisdiction) and provided that such choice of law is not contrary to public policy
(“Public Policy”), as that term is understood under the laws of the Province of
Ontario and the federal laws of Canada applicable therein (“Ontario Law”)];
(xii) [to be delivered on a Time of Delivery — in an action on a final and
conclusive judgment in personam of any state or federal court sitting in The City of
New York, New York (a “New York Court”) that is not impeachable as void
24
or voidable under New York Law, an Ontario Court would recognize the validity
of the appointment by the Bank of National Corporate Research, Ltd. as its agent for
service in the United States of America under the Indenture, the Securities, this
Agreement and any applicable Terms Agreement and to the provisions in the Indenture,
the Securities, this Agreement and any applicable Terms Agreement whereby the Bank
has submitted to the jurisdiction of a New York Court][to be delivered on other
dates — in an action on a final and conclusive judgment in personam of any state or
federal court sitting in The City of New York, New York (a “New York Court”) that is
not impeachable as void or voidable under New York Law, an Ontario Court would
recognize the validity of the appointment by the Bank of National Corporate
Research, Ltd. as its agent for service in the United States of America under the
Indenture and this Agreement and give effect to the provisions in the Indenture and
this Agreement whereby the Bank has submitted to the jurisdiction of a New York
Court];
(xiii) [to be delivered on a Time of Delivery — if the Indenture (to the extent
the Indenture is governed by New York Law), the Securities, this Agreement or any
applicable Terms Agreement are sought to be enforced in the Province of Ontario in
accordance with the laws applicable thereto as chosen by the parties, namely New
York Law, an Ontario Court would, subject to the qualifications set out in paragraph
(xi) above, recognize the choice of New York Law, and apply such law, provided that
in any such proceeding, and notwithstanding the parties’ choice of law, the Ontario
Court (a) will not take judicial notice of the provisions of New York Law but will
only apply such provisions if they are pleaded and proven by expert testimony; (b)
will apply Ontario Law that under such law would be characterized as procedural and
will not apply any New York Law that under Ontario Law would be characterized as
procedural; (c) will apply provisions of Ontario Law that have overriding effect;
(d) will not apply New York Law if such application would be characterized under
Ontario Law as the direct or indirect enforcement of a foreign revenue,
expropriatory or penal law or if its application would be contrary to Public Policy;
and (e) will not enforce the performance of any obligation that is illegal under the
laws of any jurisdiction in which the obligation is to be performed][to be delivered
on other dates — if the Indenture (to the extent the Indenture is governed by New
York Law) or this Agreement are sought to be enforced in the Province of Ontario in
accordance with the laws applicable thereto as chosen by the parties, namely New
York Law, an Ontario Court would, subject to the qualifications set out in paragraph
(xi) above, recognize the choice of New York Law, and apply such law, provided that
in any such proceeding, and notwithstanding the parties’ choice of law, the Ontario
Court (a) will not take judicial notice of the provisions of New York Law but will
only apply such provisions if they are pleaded and proven by expert testimony; (b)
will apply Ontario Law that under such law would be characterized as procedural and
will not apply any New York Law that under Ontario Law would be characterized as
procedural; (c) will apply provisions of Ontario Law that have overriding effect;
(d) will not apply New
25
York Law if such application would be characterized under Ontario Law as the
direct or indirect enforcement of a foreign revenue, expropriatory or penal law or
if its application would be contrary to Public Policy; and (e) will not enforce the
performance of any obligation that is illegal under the laws of any jurisdiction in
which the obligation is to be performed];
(xiv) [to be delivered on a Time of Delivery — an Ontario Court would enforce a
final and conclusive judgment in personam of a New York Court that is subsisting and
unsatisfied respecting the enforcement of the Indenture, the Securities, this
Agreement and any applicable Terms Agreement that is not impeachable as void or
voidable under New York Law for a sum certain (the “Foreign Judgment”) provided that
(A) the New York Court had jurisdiction over the subject matter and the parties to
such agreements as recognized by the Ontario Court and the New York Court (although
submission by the Bank to the jurisdiction of the New York Court pursuant to the
Indenture, the Securities, this Agreement and any Terms Agreement will be sufficient
for this purpose); (B) no new admissible evidence, right or defense relevant to the
action accrues or is discovered prior to the rendering of a judgment by the Ontario
Court; (C) an action to enforce the Foreign Judgment is commenced in the Ontario
Court within any applicable limitation period; (D) the Ontario Court has discretion
to stay or decline to hear an action on the Foreign Judgment if the Foreign Judgment
is under appeal, or there is another subsisting judgment in any jurisdiction
relating to the same cause of action; and (E) the Ontario Court will render judgment
only in Canadian dollars; subject to the following defenses: (i) the Foreign
Judgment was obtained by fraud or in a manner contrary to the principles of natural
justice; (ii) the Foreign Judgment is for a claim which under Ontario Law would be
characterized as based on a foreign revenue, expropriatory or penal law; (iii) the
Foreign Judgment is contrary to Public Policy or to an order made by the Attorney
General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by the
Competition Tribunal under the Competition Act (Canada) in respect of certain
judgments referred to therein; or (iv) the Foreign Judgment has been satisfied or is
void or voidable under New York Law][to be delivered on other dates — an Ontario
Court would enforce a final and conclusive judgment in personam of a New York Court
that is subsisting and unsatisfied respecting the enforcement of the Indenture and
this Agreement that is not impeachable as void or voidable under New York Law for a
sum certain (the “Foreign Judgment”) provided that (A) the New York Court had
jurisdiction over the subject matter and the parties to such agreements as
recognized by the Ontario Court and the New York Court (although submission by the
Bank to the jurisdiction of the New York Court pursuant to the Indenture and this
Agreement will be sufficient for this purpose); (B) no new admissible evidence,
right or defense relevant to the action accrues or is discovered prior to the
rendering of a judgment by the Ontario Court; (C) an action to enforce the Foreign
Judgment is commenced in the Ontario Court within any applicable limitation period;
(D) the Ontario Court has discretion to stay or decline to hear an action on the
Foreign Judgment if the Foreign Judgment
26
is under appeal, or there is another subsisting judgment in any jurisdiction
relating to the same cause of action; and (E) the Ontario Court will render judgment
only in Canadian dollars; subject to the following defenses: (i) the Foreign
Judgment was obtained by fraud or in a manner contrary to the principles of natural
justice; (ii) the Foreign Judgment is for a claim which under Ontario Law would be
characterized as based on a foreign revenue, expropriatory or penal law; (iii) the
Foreign Judgment is contrary to Public Policy or to an order made by the Attorney
General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by the
Competition Tribunal under the Competition Act (Canada) in respect of certain
judgments referred to therein; or (iv) the Foreign Judgment has been satisfied or is
void or voidable under New York Law; and
(xv) such counsel’s opinion as summarized in the Prospectus under the heading
“Limitations on Enforcement of U.S. Laws Against RBC, our Management and Others”
regarding enforceability of U.S. securities laws is true and correct.
Notwithstanding the foregoing, such letter furnished on the Commencement Date shall refer to
the Program Prospectus in place of the Prospectus.
(c) Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Bank, shall have furnished
to such Agent their written opinions, dated the Commencement Date and each applicable date
referred to in Section 5(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, subject to such exceptions and qualifications as would be
customary, to the effect that:
(i) assuming this Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Bank insofar as the laws of Canada, Québec
and Ontario are concerned, this Agreement and any applicable Terms Agreement have
been duly executed and delivered by the Bank;
(ii) all regulatory consents, authorizations, approvals and filings required to
be obtained or made by the Bank under the Federal laws of the United States and the
laws of the State of New York for the issuance, sale and delivery of the Securities
by the Bank to the Agents have been obtained or made;
(iii) assuming the Indenture has been duly authorized, executed and delivered
by the Bank insofar as the laws of Canada, Québec and Ontario are concerned, it has
been duly executed and delivered by the Bank and duly qualified under the Trust
Indenture Act of 1939, and constitutes a valid and legally binding obligation of the
Bank enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles;
27
(iv) [to be delivered on a Time of Delivery — assuming the Securities have been
duly authorized, executed, issued and delivered by the Bank insofar as the laws of
Canada, Québec and Ontario are concerned, they have been duly executed,
authenticated, issued and delivered by the Bank, and constitute the valid and
legally binding obligations of the Bank enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles;][to be delivered on other dates — assuming the
Series has been duly authorized and established by the Bank insofar as the laws of
Canada, Québec and Ontario are concerned, the Series has been duly established in
conformity with the Indenture, and, when the terms of a particular Security and of
its issuance and sale have been duly authorized and established by all necessary
corporate action in conformity with the Indenture, and such Security has been duly
completed, executed, authenticated and issued in accordance with the
Indenture and delivered against payment in accordance with the Distribution
Agreement, such Security will constitute a valid and legally binding obligation of
the Bank enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general
equity principles];
(v) assuming the validity of such action under the laws of Canada, Québec and
Ontario, under the laws of the State of New York relating to submission of personal
jurisdiction, the Bank has validly and effectively submitted to the personal
jurisdiction of any state or Federal court in The City of New York, State of New
York and has validly appointed National Corporate Research, Ltd. as its authorized
agent for the purposes described in Section 16 of this Agreement;
(vi) the statements in the Prospectus under the caption “Tax Consequences,”
insofar as such statements constitute a summary of the principal United States
Federal tax consequences of the purchase, ownership and disposition of the
Securities, is correct in all material respects as of the date of such opinion; and
(vii) the Bank is not an “investment company” as defined in the Investment
Company Act of 1940.
Such counsel shall also furnish a letter stating that they have reviewed the Registration
Statement, the Time of Sale Information and the Prospectus as amended or supplemented and
participated in discussions with representatives of the Bank, its Canadian counsel and its
accountants and representatives of the Agents and their U.S. counsel; and on the basis of the
information they gained in the course of the performance of such services, considered in the light
of their understanding of the applicable law (including the requirements of Form F-3 and the
character of the prospectus contemplated thereby) and the experience they have gained through
28
their practice under the Act, such counsel shall confirm to the Agents that the Registration
Statement, as of its effective date, the Time of Sale Information, as of the Time of Sale, and the
Prospectus as amended or supplemented, as of the date of such amendment or supplement, appeared on
their face to be appropriately responsive in all material respects to the requirements of the Act,
the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; and
nothing that came to the attention of such counsel in the course of their review has caused them to
believe that the Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, that the Time of Sale Information, at the Time of
Sale (which such counsel may assume to be the date of the Terms 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 as amended or supplemented, as of the date of such amendment or supplement, contained
any untrue statement of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in light of the circumstances in which they were made, not misleading.
Such letter shall also state that between the date of the Prospectus and the date of delivery of
the opinion, such counsel has performed such further review as described in such letter; and
nothing that has come to their attention in the course of such procedures has caused them to
believe that the Prospectus, as amended or supplemented, as of the date of delivery of the opinion,
contained any untrue statement of a material fact or omitted 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 (other than, in each case, the financial statements and other financial
information contained therein, as to which such counsel need express no belief). Notwithstanding
the foregoing, such letter furnished on the Commencement Date shall not refer to the Time of Sale
or the Time of Sale Information and shall refer to the Program Prospectus in place of the
Prospectus.
Such opinion and letter may state (1) that the limitations inherent in the independent
verification of factual matters and the character of determinations involved in the registration
process are such that such counsel do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement, the Time of Sale Information
and the Prospectus except for those made under the captions “Description of Debt Securities”, “Tax
Consequences—United States Taxation” and “Plan of Distribution” in the Basic Prospectus and under
the captions “Description of the Notes We May Offer,” “Supplemental Plan of Distribution” and
“Certain Income Tax Consequences—United States Taxation” in the prospectus supplement, dated
January 5, 2007, insofar as they relate to provisions of the Securities, the Indenture, this
Agreement or of United States Federal tax law therein described, (2) that they do not express any
opinion or belief as to the financial statements derived from accounting records or other financial
data contained in the Registration Statement, the Time of Sale Information or the Prospectus or the
prospectus supplement, or as to the statement of eligibility and qualification of the Trustee under
the Indenture under which the Securities are being issued, or as to any statement of the Bank or
its Canadian counsel with respect to the laws of Canada, Québec or Ontario, in each case, in the
Registration Statement, the Time of Sale Information or the Prospectus, or in documents
incorporated by reference therein, (3) that they are passing only upon matters of United States
federal and New York law and that
29
they are relying on the opinion of Xxxxxx Xxxxxxx LLP, Canadian counsel for the Bank, with
respect to matters of Canadian law (including compliance with all legal requirements as interpreted
and applied by the AMF), and (4) that their opinion or opinions are subject to any qualifications
in the opinion of such Canadian counsel for the Bank.
(d) Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents, shall have furnished to such Agent their
written opinions, dated the Commencement Date and each applicable date referred to in Section 5(h)
hereof that is on or prior to such Solicitation Time or Time of Delivery, as the case may be, in
form and substance satisfactory to such Agent with respect to the Registration Statement, the
Prospectus, the Time of Sale Information, the Securities and such other matters that such Agent may
reasonably request.
(e) Not later than 10:00 a.m., New York City time, on the Commencement Date and on each
applicable date referred to in Section 5(k) hereof that is on or prior to such Solicitation Time or
Time of Delivery, such Agent shall have received, in form and substance reasonably satisfactory to
the Agents, from the Auditor, constituting statements and information of the type ordinarily
included in accountants’ “comfort letters” to Agents with respect to the financial statements and
certain financial information contained in or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus.
(f) On or after the date hereof or of any applicable Terms Agreement there shall not have
occurred any of the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or the Toronto Stock Exchange; (ii) a material disruption
in securities settlement, payment or clearance services in the United States; (iii) a general
moratorium on commercial banking activities in The City of New York or the City of Toronto,
declared by either United States federal, New York State, Canadian federal or Ontario provincial
authorities, as the case may be; or (iv) an outbreak or escalation of hostilities or other calamity
or crisis having an adverse effect on the financial markets of the United States of America, which,
in the judgment of such Agent makes it impracticable to proceed with the solicitation of offers to
purchase Securities or the purchase of the Securities from the Bank as principal pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to the Securities to be
delivered at the relevant Time of Delivery.
(g) The Bank shall have furnished or caused to be furnished to such Agent a certificate signed
by an executive officer of the Bank dated the Commencement Date and each applicable date referred
to in Section 5(l) hereof that is on or prior to such Solicitation Time or Time of Delivery, as the
case may be, to the effect set forth in Section 8(a)(i) and (ii) above and to the effect that the
representations and warranties of the Bank contained in this Agreement are true and correct as of
the Commencement Date or such applicable date, as the case may be, and that the Bank has complied
with all of the agreements and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or prior to the Commencement Date or such applicable date, as the case may
be.
30
9. Indemnification and Contribution.
(a) The Bank agrees to indemnify and hold harmless each Agent, its affiliates, directors and
officers and each person, if any, who controls any Agent within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Preliminary Prospectus, the Prospectus as amended or
supplemented or any amendment or supplement thereto, any Issuer Free Writing Prospectus or Time of
Sale Information or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information furnished in writing to the Bank by any Agent
expressly for use therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold harmless the Bank, its
directors, its officers, its authorized representative or representatives in the United States, and
each person, if any, who controls the Bank within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Bank to each Agent, but only with
reference to information relating to such Agent furnished in writing by such Agent expressly for
use in the Registration Statement, the Time of Sale Information, any Issuer Free Writing
Prospectus, the Prospectus or any Preliminary Prospectus, in each case as amended or supplemented.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the “indemnified party”) shall promptly notify the person
against whom such indemnity may be sought (the “indemnifying party”) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding; provided, however, that the failure to notify promptly the
indemnifying party will not relieve it from liability unless and to the extent that such failure
results in the forfeiture by the indemnifying party of substantial rights or defenses. In any such
proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of
more than one separate firm (in addition to any local counsel) for all such indemnified parties and
that such fees and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Agents in the case of parties indemnified pursuant to Section 9(a) and
by the Bank in the case of parties indemnified pursuant to Section 9(b). The indemnifying party
shall not be liable for any settlement of any proceeding
31
effected without its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is an actual or
potential party and indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in Sections 9(a) and 9(b) hereof is unavailable as a
matter of law to an indemnified party in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under either such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Bank on the one hand,
and the Agents on the other, from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Bank on the one hand, and of the Agents on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Bank on the one hand, and
the Agents on the other, shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Bank bear to the total underwriting
commissions received by the Agents, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Bank and of the Agents 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 Bank
or by the Agents and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Bank and the Agents agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Agents were treated
as one entity for such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 9(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the limitations set forth
above, 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
Section 9, no Agent 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 that such Agent 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Agents’ obligations to contribute pursuant to this Section 9
32
are several in proportion to their respective underwriting commitments. The remedies
provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
10. Agency. Each Agent, in soliciting offers to purchase Securities from the Bank and in
performing the other obligations of such Agent hereunder (other than in respect of any purchase by
an Agent as principal, pursuant to a Terms Agreement or otherwise), is acting solely as agent for
the Bank and not as principal. Each Agent will make reasonable efforts to assist the Bank in
obtaining performance by each purchaser whose offer to purchase Securities from the Bank was
solicited by such Agent and has been accepted by the Bank, but such Agent shall not have any
liability to the Bank in the event such purchase is not consummated for any reason. If the Bank
shall default on its obligation to deliver Securities to a purchaser whose offer it has accepted,
the Bank shall (i) hold each Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Bank and (ii) notwithstanding such default, pay to the Agent that
solicited such offer any commission to which it would be entitled in connection with such sale.
11. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Bank and the several Agents, as
set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any (i) termination of this
Agreement or (ii) investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Bank, or any officer or director or
controlling person of the Bank, and shall survive delivery of and payment for any of the
Securities.
12. Suspension or Termination; Additional Agents; Amendments.
(a) The provisions of this Agreement relating to the solicitation of offers to purchase
Securities from the Bank may be suspended or terminated at any time by the Bank as to any Agent or
by any Agent as to such Agent upon the giving of written notice of such suspension or termination
to such Agent or the Bank, as the case may be. In the event of such suspension or termination with
respect to any Agent, (x) this Agreement shall remain in full force and effect with respect to any
Agent as to which such suspension or termination has not occurred, (y) this Agreement shall remain
in full force and effect with respect to the rights and obligations of any party which have
previously accrued or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination (including all
Securities that may be the subject of a Secondary Market Transaction at any time during the
Secondary Transactions Period) and (z) in any event, this Agreement shall remain in full force and
effect insofar as the fourth paragraph of Section 3(a), and Sections 5(d), 5(e), 7, 9, 10 and 11
hereof are concerned.
(b) The Bank, in its sole discretion, may appoint one or more additional parties to act as
Agents hereunder from time to time. Any such appointment shall be made in a writing signed by the
Bank and the party so appointed. Such appointment shall become effective in accordance
33
with its terms after the execution and delivery of such writing by the Bank and such other
party. When such appointment is effective, such other party shall be deemed to be one of the
Agents referred to in, and to have the rights and obligations of an Agent under, this Agreement,
subject to the terms and conditions of such appointment. The Bank shall deliver a copy of such
appointment to each other Agent promptly after it becomes effective.
(c) The Bank, in its sole discretion, may increase the aggregate initial offering price of the
Securities from time to time without consent of, or notice to, any Agent.
(d) The Bank and any Agent may amend any provision of this Agreement with respect to such
Agent without consent of, or notice to, any other Agent. Any such amendment shall be made in a
writing signed by the Bank and each Agent that is a party to such amendment. In the event of such
amendment, this Agreement shall remain in full force and effect with respect to any Agent that is
not a party to such amendment (without giving effect to such amendment with respect to such Agent)
unless suspended or terminated with respect to such Agent pursuant to clause (a) of this Section
12.
13. Default by Agent. The following terms shall apply to any Terms Agreement if provided for
therein:
(a) If any Agent shall default in its obligation to purchase the Securities which it
has agreed to purchase pursuant to such Terms Agreement, the representatives named in such
Terms Agreement may in their discretion arrange for the representatives or another party or
other parties to purchase such Securities on the terms provided by such Terms Agreement. If
within thirty-six hours after such default by any Agent the representatives do not arrange
for the purchase of such Securities, then the Bank shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties satisfactory to the
representatives to purchase such Securities on such terms. In the event that, within the
respective prescribed periods, the representatives notify the Bank that they have so
arranged for the purchase of such Securities, or the Bank notifies the representatives that
it has so arranged for the purchase of such Securities, the representatives or the Bank
shall have the right to postpone the Time of Delivery for a period of not more than seven
calendar days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement, the Time of Sale Information or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Bank agrees to file
promptly any amendments or supplements to the Registration Statement, the Time of Sale
Information or the Prospectus which in the representatives’ opinion may thereby be made
necessary. The term “Agent” as used with respect to such Terms Agreement shall include any
person substituted under this Section 13 (if applicable) with like effect as if such person
had originally been a party to such Terms Agreement.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Agent or Agents by the representatives and the Bank as provided in subsection (a)
above, the aggregate principal amount of such Securities
34
which remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of all the Securities covered by such Terms Agreement, then the Bank shall have the
right to require each non-defaulting Agent to purchase the principal amount of Securities
which such Agent agreed to purchase pursuant to such Terms Agreement and, in addition, to
require each non-defaulting Agent to purchase its pro rata share (based on the principal
amount of Securities which such Agent agreed to purchase pursuant to such Terms Agreement)
of the Securities of such defaulting Agent or Agents for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Agent from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Agent or Agents by the Agents and the Bank as provided in subsection (a) above,
the aggregate principal amount of Securities pursuant to such Terms Agreement which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities
under such Terms Agreement, or if the Bank shall not exercise the right described in
subsection (b) above to require non-defaulting Agents to purchase Securities of a defaulting
Agent or Agents, then such Terms Agreement shall thereupon terminate, without liability on
the part of any non-defaulting Agent or the Bank, except for the expenses to be borne by the
Bank and the Agents as provided in Section 7 hereof incorporated therein by reference and
the indemnity and contribution agreement in Section 9 hereof incorporated therein by
reference; but nothing herein shall relieve a defaulting Agent from liability for its
default.
14. Notices. All statements, requests, notices and agreements hereunder shall be in writing,
and if to the Agents shall be delivered or sent by mail, telex or facsimile transmission to the
address of RBC Capital Markets Corporation, Attention: Xxxxx Xxxxxxxx, to the address of RBC Xxxx
Xxxxxxxx Inc., Attention: Xxx Xxxxxxxx, and to any other Agents at the addresses set forth in
their letter of appointment delivered in accordance with Section 12; and if to the Bank shall be
delivered to the address of the Bank set forth in the Registration Statement: Attention: Executive
Vice-President, RBC Corporate Treasury; provided, however, that any notice to an Agent pursuant to
Section 8(c) hereof shall be delivered or sent by mail or facsimile transmission to such Agent at
its address set forth in its Agents’ questionnaire, which address will be supplied to the Bank by
such Agent upon request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
15. Successors. This Agreement and any Terms Agreement shall be binding upon, and inure
solely to the benefit of, each Agent and the Bank, and to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Bank and each person who controls any Agent or the Bank,
and their respective heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any Terms Agreement. No
purchaser of any of the Securities through or from any Agent hereunder shall be deemed a successor
or assign by reason merely of such purchase.
16. Jurisdiction. The Bank irrevocably (i) agrees that any legal suit, action or proceeding
against the Bank brought by any Agent or by any person who controls any Agent
35
arising out of or based upon this Agreement or any Terms Agreement or the transactions
contemplated hereby and thereby may be instituted in any state or federal court in The City of New
York (a “New York Court”), (ii) waives, to the fullest extent it may effectively do so, any
objection that it may now or hereafter have to the laying of venue of any such proceeding and (iii)
submits to the jurisdiction of such courts in any such suit, action or proceeding. The Bank
irrevocably waives any immunity to jurisdiction to which it may otherwise be entitled or become
entitled (including sovereign immunity, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it arising out of or
based on this Agreement and any Terms Agreement or the transactions contemplated hereby and thereby
that is instituted in any New York Court. The Bank has appointed National Corporate Research,
Ltd., 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000-0000, as its authorized agent (the
“Authorized Agent”) upon whom process may be served in any such action arising out of or based on
this Agreement and any Terms Agreement or the transactions contemplated hereby and thereby that may
be instituted in any New York Court by any Agent or by any person who controls any Agent, expressly
consents to the jurisdiction of any such court in respect of any such action, and waives any other
requirements of or objections to personal jurisdiction with respect thereto. The Bank represents
and warrants that the Authorized Agent has agreed to act as such agent for service of process and
agrees to take any and all action, including the filing of any and all documents and instruments,
which may be necessary to continue such appointment in full force and effect as aforesaid. Service
of process upon the Authorized Agent and written notice of such service to the Bank shall be
deemed, in every respect, effective service of process upon the Bank.
17. Business Day. Time shall be of the essence in this Agreement and any Terms Agreement. As
used herein, “business day” shall mean any day when the Commission’s office in Washington, D.C. is
open for business.
18. 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 that they may effectively do so, that the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the relevant Agents 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 Bank with respect to any
sum due from it to any Agent or any person controlling any Agent shall, notwithstanding any
judgment in a currency other than United States dollars, not be discharged until the first business
day following receipt by such Agent or controlling person of any sum in such other currency, and
only to the extent that such Agent or controlling person may in accordance with normal banking
procedures purchase United States dollars with such other currency. If the United States dollars
so purchased are less than the sum originally due to such Agent or controlling person hereunder,
the Bank agrees as a separate obligation and notwithstanding any such judgment, to indemnify such
Agent or controlling person against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Agent or controlling person hereunder, such Agent or
controlling person agrees to pay to the Bank an amount equal to the excess of the dollars so
purchased over the sum originally due to such Agent or controlling person hereunder.
36
19. Governing Law. This Agreement and any Terms Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
20. Counterparts. This Agreement and any Terms Agreement may be executed by any one or more
of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute one and the same
instrument.
37
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, whereupon this letter and the acceptance by you thereof shall constitute a
binding agreement between the Bank and you in accordance with its terms.
Very truly yours, ROYAL BANK OF CANADA |
||||
By: | /s/ Xxx Xxxxxx-Xxxx | |||
Name: | Xxx Xxxxxx-Xxxx | |||
Title: | Executive Vice-President and Corporate Treasurer | |||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice-President, Market Strategy and Execution | |||
Accepted as of the date hereof:
RBC CAPITAL MARKETS CORPORATION |
|||
By: | /s/ Xxxxxx X. Xxxxx | ||
Name: | Xxxxxx X. Xxxxx | ||
Title: | Managing Director | ||
RBC XXXX XXXXXXXX INC. |
|||
By: | /s/ Xxx Xxxxxxxx | ||
Name: | Xxx Xxxxxxxx | ||
Title: | Director | ||
38
ANNEX I
ROYAL BANK OF CANADA
U.S.$8,000,000,000
SENIOR GLOBAL MEDIUM-TERM NOTES, SERIES C
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
Terms Agreement
...................., 200..
RBC CAPITAL MARKETS CORPORATION
0 Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0 Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RBC XXXX XXXXXXXX INC.
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
[Insert names of any other purchasers]
Ladies and Gentlemen:
Royal Bank of Canada, a Canadian chartered Bank (the “Bank”), proposes, subject to the terms
and conditions stated herein and in the Distribution Agreement, dated January 5, 2007 (the
“Distribution Agreement”), between the Bank on the one hand and RBC Capital Markets Corporation,
RBC Xxxx Xxxxxxxx Inc. and any other party acting as Agent thereunder on the other, to issue and
sell to you the securities specified in the Schedule hereto (the “Purchased Securities”). Each of
the provisions of the Distribution Agreement not specifically related to the solicitation by the
Agents, as agents of the Bank, of offers to purchase Securities is incorporated herein by reference
in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Nothing contained herein or in the Distribution
Agreement shall make any party hereto an agent of the Bank or make such party subject to the
provisions therein relating to the solicitation of offers to purchase Securities from the Bank,
solely by virtue of its execution of this Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty that refers to the Prospectus or the Time
of Sale Information (as therein defined) in Section 1 of the Distribution Agreement shall be deemed
to be a representation or warranty as of the date of the Distribution Agreement in relation to the
Prospectus or the Time of Sale Information, and also a representation and warranty as of the date
of this Terms Agreement in relation to the Prospectus or the Time of Sale Information, as the case
may be, each as amended or supplemented to the date hereof and each as amended or supplemented
relating to the Purchased
Securities that are the subject of this Terms Agreement. Unless otherwise defined herein,
terms defined in the Distribution Agreement are used herein as therein defined.
I-1
[Notwithstanding the foregoing, insofar as it is deemed to be incorporated in and made a part
of this Terms Agreement, the Distribution Agreement shall be subject to, and to the extent
necessary amended by, the Letter of Appointment pursuant to which we appointed each of you (other
than RBC Capital Markets Corporation and RBC Xxxx Xxxxxxxx Inc.) to act as an Agent under the
Distribution Agreement on certain terms and conditions specified in such letter. For all purposes
of this Terms Agreement, references to the “Agents” shall mean the Purchasing Agents, for which RBC
Capital Markets Corporation is acting as representative. Each of you agrees that all
determinations to be made by the Purchasing Agents under this Terms Agreement, including the
determination whether or not the conditions in Section 8 of the Distribution Agreement have been
satisfied and, if not, whether or not any such conditions shall be waived, shall be made solely by
RBC Capital Markets Corporation, on behalf of the Purchasing Agents.]
An amendment and/or supplement to each of the Registration Statement and the Prospectus, each
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 and in the Distribution Agreement
incorporated herein by reference, the Bank agrees to issue and sell to [each of] you, and [each of]
you agree[s, severally and not jointly,] to purchase from the Bank at the time and place and at the
purchase price set forth in the Schedule hereto, the principal amount of Purchased Securities set
forth [opposite your respective name] in the Schedule hereto. You further agree that any Purchased
Securities offered and sold by you to initial purchasers will be offered and sold at the price to
public, and in accordance with the provisions relating to commissions and fees, if any, set forth
in the Schedule hereto, unless you and the Bank otherwise agree.
I-2
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 Agents,] this
letter and such acceptance hereof, including the provisions of the Distribution Agreement
incorporated herein by reference, shall constitute a binding agreement between [you] [each of the
Agents] and the Bank. [It is understood that your acceptance of this letter on behalf of each of
the Agents is or will be pursuant to authority granted to you by such Agent.]
Very truly yours, ROYAL BANK OF CANADA |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted as of the date hereof:
RBC CAPITAL MARKETS CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
RBC XXXX XXXXXXXX INC. |
||||
By: | ||||
Name: | ||||
Title: |
I-3
Schedule I to Annex I
Title of Purchased Securities:
Senior Global Medium-Term Notes, Series C
Aggregate Principal Amount:
[$]
Price to Public:
% of the principal amount of the Purchased Securities, plus accrued interest[, if any,] from
to [and accrued amortization[, if any,] from to ]
Purchase Price by Agents:
% of the principal amount of the Purchased Securities, plus accrued interest, if any, from
to [and accrued amortization[, if any,] from to ]
[Commission:
% of the principal amount of the Purchased Securities]
Form of Purchased Securities:
[Definitive form, to be made available for checking and packaging at least twenty-four hours prior
to the Closing Date at the office of [The Depository Trust Company or its designated custodian]
[representative of the Agents]].
[Book-entry only form represented by one or more global securities deposited with The Depository
Trust Company (“DTC”) or its designated custodian, to be made available for checking by
representative of the Agents at least twenty-four hours prior to the Closing Date at the office of
DTC.]
Specified Funds for Payment of Purchase Price:
Federal (same-day) funds
Closing Date:
a.m. (New York City time), on , 20___
Indenture:
Indenture dated as of October 23, 2003, between the Bank and The Bank of New York (as successor to
the corporate trust business of JPMorgan Chase Bank, N.A.), as Trustee, as supplemented by the
first supplemental indenture dated as of July 21, 2006, between the Bank and The Bank of New York
(as successor to the corporate trust business of JPMorgan Chase Bank, N.A.), as Trustee (the
“Indenture”).
I-4
Maturity Date:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ......................, 20..]
Redemption Provisions:
[No provisions for redemption]
[The Purchased Securities may be redeemed, in whole or in part at the option of the Bank, in the
amount of [$ or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in percentages of principal
amount). If [redeemed on or before , %, and if] redeemed during the 12-month period
beginning ,
Year | Redemption Price | |
and thereafter at 100% of their principal amount, together in each case with accrued interest to
the redemption date.]
[on any interest payment date falling on or after , , at the election of the
Bank, at a redemption price equal to the principal amount thereof, plus accrued interest to the
date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon occurrence of certain
events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Purchased Securities are entitled to the benefit of a sinking fund to retire [$ ]
principal amount of Purchased Securities on in each of the years through
at 100% of their principal amount plus accrued interest[, together with [cumulative]
[noncumulative] redemptions at the option of the Bank to retire an additional [$ ]
principal amount of Purchased Securities in the years through at 100% of their
principal amount plus accrued interest.]
I-5
[If Purchased Securities are extendable debt securities, insert—
Extendable Provisions:
Purchased Securities are repayable on , [insert date and years], at the option
of the holder, at their principal amount with accrued interest. The initial annual interest rate
will be %, and thereafter the annual interest rate will be adjusted on ,
and to a rate not less than % of the effective annual interest rate on U.S. Treasury
obligations with -year maturities as of the [insert date 15 days prior to maturity date] prior to
such [insert maturity date].]
[If Purchased Securities are floating rate debt securities, insert—
Floating Rate Provisions:
Initial annual interest rate will be % through [and thereafter will be adjusted
[monthly] [on each , , and ] [to an
annual rate of % above the average rate for -year [month] [securities] [certificates of
deposit] issued by and [insert
names of banks].] [and the annual interest rate [thereafter] [from through ]
will be the interest yield equivalent of the weekly average per annum market discount rate for
-month Treasury bills plus % of Interest Differential (the excess, if any, of (i) the
then-current weekly average per annum secondary market yield for -month certificates of deposit
over (ii) the then current interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from and thereafter the rate will be the
then-current interest yield equivalent plus % of Interest Differential].]
[If Purchased Securities are exchangeable securities, insert — Exchangeable Note: Whether the
Purchased Securities are Optionally Exchangeable or Mandatorily Exchangeable or are otherwise a
form of exchangeable security.]
Defeasance provisions:
Closing Location for Delivery of Purchased Securities:
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be delivered as a condition
to the Closing:
[None]
[(1) The opinions and letter of counsel to the Bank referred to in Sections 5(i) and 5(j).]
[(2) The opinions and letter of counsel to the Agents referred to in Section 5(h).]
[(3) The accountants’ letter referred to in Section 5(k).]
[(4) The officers’ certificate referred to in Section 5(l).]
Additional Closing Conditions:
I-6
Names and addresses of Agents:
Designated representative of the Agents:
Address for Notices, etc.:
Other Terms:
[The provisions of Section 12 of the Distribution Agreement shall apply with respect to this Terms
Agreement, and the representative referred to in Section 13 shall be [RBC Capital Markets
Corporation.]]
[expense reimbursement upon termination]
With regard to the offering and sale of the Securities, all determinations and actions required or
permitted to be made pursuant to the Distribution Agreement or the Terms Agreement by the Agent(s)
or the representatives (including determinations as to whether or not any closing condition has
been satisfied and whether or not any unsatisfied conditions shall be waived) shall instead be made
[solely] by RBC Capital Markets Corporation on behalf of all of the Agents or representative.]
I-7
Schedule II to Annex I
Form of Agreement between the Agent(s) and the Bank in Respect of Time of Sale Information and
pricing information for the Offering of [identify issue]
In connection with the offering of [identify issue] of Royal Bank of Canada (the “Bank”),
(the “Agent”) and the Bank agree as follows:
a. Time of Sale Information
The preliminary pricing supplements that are to be included in the Time of Sale Information are as
follows:
[list each preliminary pricing supplement and, if applicable, each product prospectus
supplement to be included in the Time of Sale Information]
The Free Writing Prospectuses that are to be included in the Time of Sale Information are as
follows:
[list each Free Writing Prospectus to be included in the Time of Sale Information]
b. Pricing Information Provided Orally by Agents
The script to be used by the Agent(s) to confirm sales is as follows:
I-8
Schedule III to Annex I
Form of Agreement between the Agent(s) and the Bank in Respect of a Term Sheet used to communicate
Time of Sale Information and pricing information for the Offering of [identify issue]
In connection with the offering of [identify issue] of Royal Bank of Canada (the “Bank”),
________________________ (the “Agent”) and the Bank agree that the Term Sheet used to communicate
Time of Sale Information and pricing information for the above-referenced offering shall be as
follows:
[Joint Bookrunners/Co-managers]
[Issuer Name]
[securities offered]
Issuer: |
||
Symbol: |
||
Securities offered:
|
(excluding option to purchase [ ] additional [ ]) | |
Price to public: |
||
Net proceeds:
|
$ [ ] (excluding option to purchase up to [ ] additional [ ]) | |
Closing date:
|
[ ], 200[7] | |
Final maturity date: |
||
Use of proceeds: |
||
CUSIP: |
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 to you the prospectus if you
request it by calling toll-free • and request to speak with the [Debt Syndicate Desk].
Any disclaimer or other notice that may appear below is not applicable to this communication
and should be disregarded. Such disclaimer or notice was automatically generated as a result of
this communication being sent by Bloomberg or another email system.
I-9
ANNEX II
ADMINISTRATIVE PROCEDURES MEMORANDUM
(DATED AS OF JANUARY 5, 2007)
FOR
ROYAL BANK OF CANADA
SENIOR GLOBAL MEDIUM-TERM NOTES, SERIES C
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
The Senior Global Medium-Term Notes, Series C (the “Securities”) may from time to time be
offered on a continuing basis for sale by the Royal Bank of Canada (the “Bank”) through each of RBC
Capital Markets Corporation, RBC Xxxx Xxxxxxxx Inc. and each of the agents appointed in accordance
Section 12 of the Distribution Agreement to which these Administrative Procedures are an exhibit
(the “Distribution Agreement”), who (each, a “Distribution Agent” and, collectively, the
“Distribution Agents”) may purchase the Securities, as principal from the Bank for resale to
investors and other purchasers in accordance with the Distribution Agreement. In addition, if
agreed to by the Bank and the applicable Distribution Agent, such Distribution Agent may utilize
its reasonable efforts on an agency basis to solicit offers to purchase the Securities. Only those
provisions in these Administrative Procedures that are applicable to the particular role that a
Distribution Agent will perform shall apply. Whenever these Administrative Procedures indicate
that information may be set forth in a Note, such information may also be set forth in a Pricing
Supplement to the Prospectus (as defined below).
The Bank of New York (or such other agent appointed in accordance with the Indenture) will act
as registrar (the “Registrar”) and domestic paying agent for the Securities through its office in
New York, New York. As used herein, the term “Prospectus” refers to the most recent Prospectus, as
such document may be amended or supplemented, which has been prepared by the Bank for use by the
Distribution Agents in connection with the offering of the Securities. As used herein, the term
“Pricing Supplement” has the meaning ascribed thereto in the Distribution Agreement.
Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed
thereto in the Securities or the Prospectus.
II-1
DTC REGISTERED GLOBAL NOTES
Securities may be issued in book-entry form (each beneficial interest in a global Note, a
“Book-Entry Note” and collectively, the “Book-Entry Notes”) and represented by one or more fully
registered global Notes (each, a “Global Note” and collectively, the “Global Notes”) held by or on
behalf of The Depository Trust Company, as depositary (“DTC”, which term includes any successor
thereof), and recorded in the book-entry system maintained by DTC. Book-Entry Notes represented by
a Global Note are exchangeable for definitive Notes in registered form, of like tenor and of an
equal aggregate principal amount, by the owners of such Book-Entry Notes only upon certain limited
circumstances described in the Prospectus.
In connection with the qualification of Book-Entry Notes for eligibility in the book-entry
system maintained by DTC, the Bank or its agents will perform the custodial, document control and
administrative functions described below, in accordance with their respective obligations under the
applicable Letters of Representations from the Bank to DTC relating to the Program, and a
Certificate of Deposit Agreement between the Bank and DTC (the “Certificate Agreement”), and the
Bank’s obligations as a participant in DTC, including DTC’s Same-Day Funds Settlement System
(“SDFS”).
Settlement Procedures for Book-Entry Notes: |
Settlement Procedures with regard to Book-Entry Securities purchased by each Distribution Agent as principal or sold by each Distribution Agent, as agent of the Bank, will be as follows (which will have been agreed to by the Bank and such Distribution Agent in accordance with the Distribution Agreement): |
(A) | The Distribution Agent will advise the Bank by telephone, confirmed by facsimile or e-mail (with a copy to the Registrar), of the following settlement information: |
1. | Taxpayer identification number of the purchaser. | ||
2. | Principal amount of such Book-Entry Notes. | ||
3. | Each term specified in the applicable Pricing Supplement. | ||
4. | Price to public, if any, of such Book-Entry Notes (if such Book-Entry Notes are not being offered “at the market”). | ||
5. | Trade Date. |
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6. | Settlement Date (Original Issue Date). | ||
7. | Maturity Date. | ||
8. | Redemption provisions, if any, including: Initial Redemption Date, Initial Redemption Percentage and Annual Redemption Percentage Reduction. Repayment provisions, if any, including Xxxxxx’s Optional Repayment Date(s). | ||
9. | Net proceeds to the Bank. | ||
10. | Whether such Book-Entry Notes are being sold to the Distribution Agent as principal or to an investor or other purchaser through the Distribution Agent acting as agent for the Bank. | ||
11. | The Distribution Agent’s commission or discount, as applicable. | ||
12. | Whether such Book-Entry Notes are being issued with Original Issue Discount and the terms thereof. | ||
13. | Default Rate. | ||
14. | Identification numbers of participant accounts maintained by DTC on behalf of the Distribution Agent. | ||
15. | Whether additional documentation will be required for Securities being sold to the Distribution Agent as principal. | ||
16. | Such other information specified with respect to such Book-Entry Notes (whether by Addendum or otherwise). |
(B) | The Registrar will assign a CUSIP number of the appropriate series to the Global Note representing such Book-Entry Notes and, as soon thereafter as practicable, the Registrar will notify the Distribution Agent by telephone of such CUSIP number. |
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(C) | The Distribution Agent will communicate to DTC through DTC’s Participant Terminal System, a pending deposit message specifying the following settlement information: |
1. | The information set forth in Settlement Procedure A. | ||
2. | The identification numbers of the participant accounts maintained by DTC on behalf of the Registrar and the Distribution Agent. | ||
3. | Identification of the Book-Entry Note as a Fixed Rate Book-Entry Note or Floating Rate Book-Entry Note. | ||
4. | The initial Interest Payment Date for the Global Note representing such Book-Entry Notes, the number of days by which such date succeeds the related Record Date and, if then calculable, the amount of interest payable on such Interest Payment Date (which amount shall have been confirmed by the Bank). | ||
5. | The CUSIP number of the Global Note representing such Book-Entry Notes. | ||
6. | Whether such Global Note represents any other Securities issued or to be issued in book-entry form. |
The Distribution Agent will complete and deliver to the Trustee the Global Note representing such Book-Entry Notes in a form that has been approved by the Bank and the Distribution Agent and the Bank will deliver its authentication instructions to the Trustee. |
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(D) | The Trustee will authenticate pursuant to the Bank’s instructions the Global Note representing such Book-Entry Notes in a form that has been approved by the Bank and the Distribution Agent. | ||
(E) | DTC will credit the Book-Entry Notes represented by such Global Note to the participant account of the Registrar maintained by DTC. | ||
(F) | The Registrar will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Book-Entry Notes to the Registrar’s participant account and credit such Book-Entry Notes to the participant account of the Distribution Agent maintained by DTC and (ii) to debit the settlement account of the Distribution Agent and credit the settlement account of the Registrar maintained by DTC, in an amount equal to the price of such Book-Entry Notes less such Distribution Agent’s commission or discount. Any entry of such deliver order shall be deemed to constitute a representation and warranty by the Registrar to DTC that (i) the Global Note representing such Book-Entry Notes has been issued and authenticated and (ii) the Registrar is holding such Global Note pursuant to the Certificate Agreement. | ||
(G) | In the case of Book-Entry Notes sold through a Distribution Agent acting as agent, the Distribution Agent will enter an SDFS deliver order through DTC’s Participant Terminal System instructing DTC (i) to debit such Book-Entry Notes to the Distribution Agent’s participant account and credit such Book-Entry Notes to the participant accounts of the Participants maintained by DTC and (ii) to debit the settlement accounts of such Participants and credit the settlement account of the Distribution Agent maintained by DTC, in an amount equal to the offering price of such Book-Entry Notes. |
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(H) | Transfers of funds in accordance with SDFS delivery orders described in Settlement Procedures F and G will be settled in accordance with SDFS operating procedures in effect on the Settlement Date. | ||
(I) | In the case of Book-Entry Notes sold through a Distribution Agent acting as agent, the Distribution Agent will confirm the purchase of such Book-Entry Notes to the purchaser either by transmitting to the Participant with respect to such Book-Entry Notes a confirmation order through DTC’s Participant Terminal System or by mailing a written confirmation to such purchaser. |
Settlement Procedures Timetable: |
For offers to purchase Book-Entry Notes accepted by the Bank, Settlement Procedures “A” through “I” set forth above shall be completed as soon as possible but no later than the respective times (New York City time) set forth below: |
Settlement | |||
Procedure | Time | ||
A
|
11:00 a.m. on the Trade Date | ||
B
|
12:00 noon on the Trade Date | ||
C
|
5:00 p.m. on the Trade Date | ||
D
|
9:00 a.m. on the Settlement Date | ||
E
|
10:00 a.m. on the Settlement Date | ||
F-G
|
2:00 p.m. on the Settlement Date | ||
H
|
4:00 p.m. on the Settlement Date | ||
I
|
5:00 p.m. on the Settlement Date |
If a sale is to be settled on the same Business Day as the Trade Date, Settlement Procedures C, D, F and G shall be completed no later than 2:30 p.m. on such Business Day. |
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If a sale is to be settled more than one Business Day after the trade date, Settlement Procedures A, B and C may, if necessary, be completed at any time prior to the specified times on the first Business Day after such trade date. In connection with a sale which is to be settled more than one Business Day after the trade date, if the initial interest rate for a Floating Rate Note is not known at the time that Settlement Procedure A is completed, Settlement Procedures B and C shall be completed as soon as such rate has been determined, but no later than 11:00 a.m. and 2:00 p.m., New York City time, respectively, on the second Business Day before the Settlement Date. | ||
Settlement Procedure H is subject to extension in accordance with any extension of Fedwire closing deadlines and in the other events specified in the SDFS operating procedures in effect on the Settlement Date. | ||
If settlement of a Book-Entry Note is rescheduled or canceled, the Bank shall deliver to DTC, through DTC’s Participant Terminal System, a cancellation message to such effect by no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the scheduled Settlement Date. | ||
Failure to Settle: | If the Registrar fails to enter an SDFS deliver order with respect to a Book-Entry Note pursuant to Settlement Procedure F, then the Registrar may deliver to DTC, through DTC’s Participant Terminal System, as soon as practicable a withdrawal message instructing DTC to debit such Book-Entry Note to the participant account of the Registrar maintained at DTC. DTC will process the withdrawal message; provided that such participant account contains a principal amount of the Global Note representing such Book-Entry Note that is at least equal to the principal amount to be debited. If withdrawal messages are processed with respect to all Book-Entry Notes represented by a Global Note, the Registrar will mark such Global Note “canceled” and make appropriate entries in its records. The CUSIP number assigned to such Global Note shall, in accordance with CUSIP Service Bureau procedures, be canceled and not immediately reassigned. If withdrawal messages are processed with respect to some of the Book-Entry Notes represented by a Global Note, the Registrar will exchange such Global Note for two |
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Global Notes, one of which shall represent the Book-Entry Notes for which such withdrawal messages are processed and shall be canceled immediately after issuance, and the other of which shall represent the other Book-Entry Notes previously represented by the surrendered Global Note and shall bear the CUSIP number of the surrendered Global Note. | ||
In the case of any Book-Entry Note sold through a Distribution Agent, acting as agent, if the purchase price for any Book-Entry Note is not timely paid to the Participants with respect to such Book-Entry Note by the beneficial purchaser thereof (or a person, including an indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn, the applicable Distribution Agent may enter SDFS deliver orders through DTC’s Participant Terminal System reversing the orders entered pursuant to Settlement Procedures F and G, respectively. Thereafter, the Registrar will deliver the withdrawal message and take the related actions described in the preceding paragraph. | ||
Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. In the event of a failure to settle with respect to a Book-Entry Note that was to have been represented by a Global Note also representing other Book-Entry Notes, the Registrar will provide, in accordance with Settlement Procedure D, for the issuance of a Global Note representing such remaining Book-Entry Notes and will make appropriate entries in its records. | ||
Preparation and
Delivery of Pricing Supplements: |
If any offer to purchase a Note is accepted by the Bank, the Bank will promptly prepare a Pricing Supplement reflecting the terms of such Note. The Bank shall deliver copies of such Pricing Supplement to the Distribution Agent which made or presented the offer to purchase the applicable Note, as instructed by such Distribution Agent, and to the paying agent as soon as practicable following the trade, but in no event later than 11:00 a.m. (New York City time) on the Business Day following the applicable trade date. |
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