Exhibit 1.9
EXECUTION COPY
ABN AMRO HOLDING N.V.
(a Netherlands limited liability company)
ABN AMRO BANK N.V.
(a Netherlands limited liability company)
ABN AMRO NORTH AMERICA HOLDING COMPANY
ABN AMRO CAPITAL FUNDING LLC V
(a Delaware limited liability company)
ABN AMRO CAPITAL FUNDING TRUST V
(a Delaware statutory trust)
5.90% NONCUMULATIVE GUARANTEED TRUST PREFERRED SECURITIES
UNDERWRITING AGREEMENT
DATED: June 26, 2003
TABLE OF CONTENTS
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PAGE
Section 1. Representations And Warranties By The ABN AMRO Parties.............4
Section 2. Sale And Delivery To Underwriters, Closing........................10
Section 3. Covenants Of The ABN AMRO Parties.................................13
Section 4. Payment Of Expenses...............................................16
Section 5. Conditions Of Underwriters' Obligations...........................16
Section 6. Indemnification...................................................25
Section 7. Contribution......................................................28
Section 8. Representations, Warranties and Agreements to Survive Delivery....30
Section 9. Termination of Agreement..........................................30
Section 10. Default by One or More of the Underwriters.......................31
Section 11. Notices..........................................................32
Section 12. Parties..........................................................32
Section 13. Governing Law And Jurisdiction...................................33
Section 14. Effect Of Headings...............................................34
Schedule A: Names of Underwriters and Number of Trust
Preferred Securities to be Purchased......................SA-1
Schedule B: Initial Public Offering Price and Underwriters
Commission................................................SB-1
Exhibit A: Form of Netherlands Counsel Opinion........................A-1
Exhibit B: Form of U.S. Counsel Opinion...............................B-1
Exhibit C: Form of TIA Trustees' Counsel Opinion......................C-1
ABN AMRO Capital Funding Trust V
(a Delaware statutory trust)
5.90% Noncumulative Guaranteed Trust Preferred Securities
(Liquidation Amount of $25 per Trust Preferred Security)
guaranteed by ABN AMRO Holding N.V.
UNDERWRITING AGREEMENT
June 26, 2003
ABN AMRO Incorporated
Citigroup Global Markets Inc.
c/o Citigroup Global Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters named in Schedule A
hereto
Ladies and Gentlemen:
ABN AMRO Capital Funding Trust V (the "Trust"), a statutory trust
organized under the Business Statutory Trust Act (the "Delaware Trust Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
▇▇.▇▇. 3801 et seq.), ABN AMRO Capital Funding LLC V (the "LLC"), a limited
liability company organized under the Limited Liability Company Act (the
"Delaware LLC Act") of the State of Delaware (Chapter 18, Title 6, of the
Delaware Code, 6 Del. C. ▇▇.▇▇. 18-101 et seq.), ABN AMRO Holding N.V., a
Netherlands limited liability company (the "Guarantor"), ABN AMRO Bank N.V., a
Netherlands limited liability company (the "Bank"), ABN AMRO North America
Holding Company. ("AANAH" and together with the Guarantor, the Trust, the Bank
and the LLC, the "ABN AMRO Parties"), confirm their agreement (the "Agreement")
with ABN AMRO Incorporated, Citigroup Global Markets Inc. and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 11 hereof), for whom ABN AMRO Incorporated and Citigroup
Global Markets Inc. are acting as representatives (in
such capacity, hereinafter referred to as the "Representatives"), with respect
to the sale by the Trust and the purchase by the Underwriters, acting severally
and not jointly, of the respective numbers of 5.90% Noncumulative Guaranteed
Trust Preferred Securities (liquidation preference $25 per trust preferred
security), representing preferred undivided beneficial ownership interests in
the assets of the Trust (the "Trust Preferred Securities"), set forth in
Schedule A. AANAH will initially own all the common securities (the "Trust
Common Securities" and, together with the Trust Preferred Securities, the
"Trust Securities"), representing undivided beneficial ownership interests in
the assets of the Trust. The Trust Preferred Securities and the Trust Common
Securities will be issued pursuant to an amended and restated declaration of
trust (the "Declaration") of the Trust, to be dated as of July 3, 2003, among,
AANAH, as sponsor, the regular trustees named therein (the "Regular Trustees"),
BNY Midwest Trust Company, as institutional trustee (the "Property Trustee"),
and The Bank of New York (Delaware), a Delaware corporation, as Delaware
trustee (the "Delaware Trustee" and, together with the Regular Trustees and the
Property Trustee, the "Issuer Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Trust Preferred
Securities will be guaranteed by the Guarantor, to the extent set forth in the
Trust Securities Guarantee Agreement (the "Trust Guarantee"), to be dated as of
July 3, 2003, among the Guarantor, the Underwriters and AANAH, as initial
holders, and BNY Midwest Trust Company, as trustee (the "Guarantee Trustee",
and together with the Guarantee Trustee under the LLC Guarantee, as defined
below, and the Guarantee Trustee under the Contingent Guarantee, as defined
below, the "Guarantee Trustees") with respect to distributions and payments
upon liquidation and redemption and otherwise pursuant to the Trust Guarantee.
The proceeds from the sale of the Trust Securities will be used by the
Trust to purchase 5.90% Noncumulative Guaranteed LLC Preferred Securities ("LLC
Preferred Securities"), representing ownership interests in the LLC. All of the
common securities of the LLC (the "LLC Common Securities") will be initially
owned by AANAH. The LLC Preferred Securities will be issued pursuant to an
amended and restated Limited Liability Company Agreement to be dated as of July
3, 2003 (the "LLC Agreement") among AANAH, as initial holder of the LLC Common
Securities, the Trust, as initial holder of the LLC Preferred Securities, and
BNY Midwest Trust Company, as trustee (the "LLC Trustee", and, together with
the Property Trustee, the Delaware Trustee and the Guarantee Trustees, the "TIA
Trustees") for purposes of compliance under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and will be guaranteed by the Guarantor, to the
extent set forth in the LLC Preferred Securities Guarantee Agreement (the "LLC
Guarantee", and, together with the Trust Guarantee, the "Guarantees") to be
dated as of July 3, 2003 among the Guarantor, the Trust, as initial holder of
the LLC Preferred Securities, and the Guarantee Trustee, as trustee, with
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respect to distributions and payments upon liquidation and redemption and
otherwise pursuant to the LLC Guarantee. In addition, the Guarantor will agree
in a contingent guarantee agreement to be dated as of July 3, 2003 among the
Guarantor, the LLC, and the Guarantee Trustee (the "Contingent Guarantee") to
pay to the LLC the amounts payable under the LLC Guarantee, to the extent such
amounts have been claimed but remain unpaid, plus accrued interest. The Trust
Preferred Securities, the LLC Preferred Securities, the Perpetual
Non-Cumulative Capital Securities, as defined below, and the related
Guarantees, are referred to herein as the "Offered Securities."
The LLC will use the proceeds from the sale of the LLC Preferred
Securities to acquire, among other things, fixed income securities issued by
the Bank (the "Initial Intercompany Securities"). In the case of a Regulatory
Event (as defined in the Prospectus), the Trust Preferred Securities will be
exchanged for perpetual, non-cumulative capital securities of the Bank (the
"Perpetual Non-Cumulative Capital Securities").
The ABN AMRO Parties (other than AANAH) have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form F-3
(file No. 333-104778) to register under the Securities Act of 1933, as amended
(the "1933 Act"), the offer and sale of (i) the Trust Preferred Securities,
(ii) the LLC Preferred Securities and (iii) the Guarantees and the Contingent
Guarantee.
The ABN AMRO Parties understand that the Underwriters propose to make an
offering of the Offered Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered. The ABN AMRO
Parties further understand that no Offered Securities will be offered by the
Underwriters in The Netherlands other than in accordance with provisions of
Article 3 of the Act of Supervision of Securities Trade 1995.
The ABN AMRO Parties (other than AANAH) have filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit for filing to,
the Commission a prospectus supplement (in the form so filed or transmitted for
filing, the "Prospectus Supplement") specifically relating to the Offered
Securities pursuant to Rule 424 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"). The term "Registration
Statement" means the registration statement, as amended to the date of this
Agreement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 6 of Form F-3
under the 1933 Act. The term "Basic Prospectus" means the prospectus included
in the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms "Basic
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Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which
is incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
Section 1. Representations And Warranties By The ABN AMRO Parties. The ABN
AMRO Parties represent and warrant jointly and severally to each Underwriter as
of the date hereof, and as of the Closing Time referred to in Section 2(c)
hereof, and, if applicable, as of each Date of Delivery (as defined below)as
follows:
(a) Compliance with Registration Requirements. The Registration Statement
has been filed on an appropriate form under the 1933 Act. The Registration
Statement has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are pending or,
to the knowledge of the ABN AMRO Parties, are contemplated by the Commission,
and any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time, and, if
applicable, as of each Date of Delivery, the Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 Act Regulations"), and did not 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 to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements thereto,
at the time the Prospectus or any such amendment or supplement was issued or at
the Closing Time, and at each Date of Delivery, if any, included or will
include an untrue statement of a material fact or omitted or will omit to state
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a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the ABN AMRO Parties in
writing by any Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus.
The Basic Prospectus and preliminary prospectus and the prospectus filed
as part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the 1933 Act Regulations.
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the
time the Prospectus was issued and at the Closing Time, and at each Date of
Delivery, if any, did not 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 to make the statements therein not misleading.
(c) Independent Accountants. The accountants who certified the financial
statements included in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(d) Good Standing of the ABN AMRO Parties. Each of the ABN AMRO Parties
and their subsidiaries has been duly incorporated under the laws of The
Netherlands, or other jurisdiction of incorporation, as the case may be (except
to the extent that the failure to be duly incorporated would not have a
material adverse effect on the ABN AMRO Parties and their subsidiaries, taken
as a whole), the Trust has been duly created as a statutory trust under the
Delaware Statutory Trust Act and the LLC has been duly formed as a limited
liability company under the Delaware LLC Act. Each of the ABN AMRO Parties and
their subsidiaries is validly existing and in good standing under the laws of
its respective jurisdiction (where such concept is legally relevant), is duly
qualified to do business and in good standing in each other jurisdiction in
which qualification is necessary for the ownership of its respective properties
or for the conduct of its respective businesses (except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the ABN AMRO Parties and their subsidiaries, taken as a
whole). The LLC is and
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will be treated as a consolidated subsidiary of AANAH pursuant to Dutch
generally accepted accounting principles. The Trust is and will be classified
as a grantor trust and will not be classified as an association taxable as a
corporation for United States federal income tax purposes.
Each ABN AMRO Party has the power and authority necessary to own or hold
its respective properties, to enter into and perform its respective obligations
under the Transaction Documents (as defined below) to which it is a party and
to conduct the businesses in which it is engaged, as described in the
Prospectus. Neither the Trust nor the LLC is a party to or otherwise bound by
any agreement other than the Transaction Documents.
(e) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered (if applicable under applicable law) by each of the ABN
AMRO Parties.
(f) Absence of Defaults and Conflicts; Absence of Further Requirements.
None of the ABN AMRO Parties nor any of their subsidiaries is in violation of
the constituent documents, charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which any of the ABN AMRO
Parties or any of their subsidiaries is a party or by which any of them may be
bound, or to which any of the property or assets of any of the ABN AMRO Parties
or any of their subsidiaries is subject, except for such defaults that would
not be material to the ABN AMRO Parties and their subsidiaries, taken as a
whole. The execution, delivery (if applicable under applicable law) and
performance of this Agreement, the Declaration, the LLC Agreement, the
Guarantees, the Contingent Guarantee, the Initial Intercompany Securities, the
Perpetual Non-Cumulative Capital Securities and the Services Agreement to be
dated as of July 3, 2003 among AANAH, the Guarantor, the Trust and the LLC (the
"Services Agreement" and, together with the Declaration, the LLC Agreement, the
Guarantees, the Contingent Guarantee and the Initial Intercompany Securities,
the "Transaction Documents") by AANAH, the Bank, the Guarantor, the Trust or
the LLC, as the case may be, and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which any of the ABN AMRO Parties or any of their subsidiaries is
a party or by which any of the ABN AMRO Parties or any of their subsidiaries is
bound or to which any of the property or assets of the ABN AMRO Parties or any
of their subsidiaries is subject, nor will such actions result in any violation
of the provisions of the constituent documents, the charter, bylaws,
Declaration, Certificate of Trust, LLC Agreement or Certificate of Formation,
as the case may
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be, of any of the ABN AMRO Parties or any of their subsidiaries
or any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the ABN AMRO Parties or any of their
subsidiaries or any of their properties or assets, the effect of which breach,
violation or default would be material to the ABN AMRO Parties and their
subsidiaries taken as a whole; and, except such as have been obtained or
required under the 1933 Act or the 1933 Act Regulations, 1934 Act or the 1934
Act Regulations or state securities laws and the qualification of the
Declaration, the LLC Agreement, the Guarantees and the Contingent Guarantee
under the 1939 Act, no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body in The
Netherlands or the United States is required in connection with the offering,
issuance, and sale of the Offered Securities or the consummation of the
transactions contemplated by this Agreement or the execution, delivery and
performance by the ABN AMRO Parties of the Transaction Documents.
(g) Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as otherwise stated therein, (a) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings or business affairs
or business prospects of the ABN AMRO Parties and their subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, (b) there
have been no transactions entered into by any of the ABN AMRO Parties or any of
their subsidiaries, other than those arising in the ordinary course of
business, which are material with respect to the ABN AMRO Parties and their
subsidiaries considered as a whole and (c) except for regular dividends on
ordinary shares or preferred or preference shares, in amounts per share that
are consistent with past practice or the applicable charter document or
supplement thereto, respectively, there has been no dividend or distribution of
any kind declared, paid or made by any of the ABN AMRO Parties on any class of
capital stock.
(h) Investment Company Act. None of the ABN AMRO Parties is, nor after
giving effect to the offering and sale of the Offered Securities and the
application of the net proceeds therefrom as described in the forepart of this
Agreement and in the Prospectus will be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
(i) Absence of Proceedings. Except as disclosed in the Prospectus, there
is no action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the knowledge
of any of the ABN AMRO Parties, threatened against or affecting any of the ABN
AMRO Parties or any of their subsidiaries that is required to be disclosed in
the Prospectus or that would result in any material adverse change in the
consolidated financial position, stockholders' equity or results of operations
of the ABN AMRO Parties and their subsidiaries, taken as a whole, or that could
reasonably
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be expected to materially and adversely affect the properties or
assets of any of the ABN AMRO Parties or any of their subsidiaries, or that
could adversely affect the consummation of the transactions contemplated in
this Agreement or the performance by each of the ABN AMRO Parties of its
obligations hereunder.
(j) Authorization of Declaration. The Declaration has been duly authorized
by AANAH and, at the Closing Time, will have been executed and delivered by
AANAH, as sponsor, and, assuming due authorization, execution and delivery of
the Declaration by the Issuer Trustees, the Declaration will, at the Closing
Time, and at each Date of Delivery, if any, be a valid and binding obligation
of AANAH enforceable against AANAH in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except to the extent that enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) (the "Bankruptcy Exceptions"),
and will conform in all material respects to all statements relating thereto in
the Prospectus; and, at the Closing Time, the Declaration will have been duly
qualified under the 1939 Act.
(k) Authorization of Trust Common Securities. At the Closing Time, the
Trust Common Securities will have been duly authorized by the Declaration and,
when issued and delivered by the Trust to AANAH against payment therefor as
described in the Registration Statement and Prospectus, will be validly issued
and (subject to the terms of the Declaration) fully paid undivided beneficial
interests in the assets of the Trust and will conform in all material respects
to all statements relating thereto contained in the Prospectus; the issuance of
the Trust Common Securities is not subject to preemptive or other similar
rights; and at the Closing Time, and at each Date of Delivery, if any, all of
the issued and outstanding Trust Common Securities of the Trust will be
directly owned by AANAH free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(l) Authorization of Trust Preferred Securities. At the Closing Time, the
Trust Preferred Securities will have been duly authorized by the Declaration
and, when issued and delivered against payment of the consideration set forth
in this Agreement, will be validly issued and (subject to the terms of the
Declaration) fully paid and non-assessable undivided beneficial interests in
the Trust, will be entitled to the benefits of the Declaration and will conform
in all material respects to all statements relating thereto contained in the
Prospectus; the issuance of the Trust Preferred Securities is not subject to
preemptive or other similar rights; and (subject to the terms of the
Declaration) holders of Trust Preferred Securities will be entitled to the same
limitation of personal liability under Delaware law as extended to stockholders
of private corporations for profit.
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(m) Authorization of Guarantees. Each of the Guarantees has been duly
authorized by the Guarantor, and AANAH and the Trust, as initial holders, and,
when validly executed and delivered (if applicable under applicable law) by the
Guarantor, and AANAH and the Trust, as initial holders, and, assuming due
authorization, execution and delivery of the Trust Guarantee by the Guarantee
Trustee and by the Underwriters, as initial holders of the Trust Securities,
and the due authorization, execution and delivery of the LLC Guarantee by the
Guarantee Trustee, will each constitute a valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions. The Guarantees will conform in all material respects to all
statements relating thereto contained in the Prospectus and, at the Closing
Time, will have been duly qualified under the 1939 Act.
(n) Regular Trustees. Each of the Regular Trustees of the Trust is an
employee or officer of, or affiliated with, AANAH. At the Closing Time, the
Declaration will have been duly executed and delivered by the Regular Trustees
and will be a valid and binding obligation of each Regular Trustee, enforceable
against such Regular Trustee in accordance with its terms, except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions.
(o) Authorization of the LLC Agreement. The LLC Agreement has been duly
authorized by AANAH and the Trust and, at the Closing Time, will have been duly
executed and delivered by AANAH and the Trust, and will be a valid and legally
binding obligation of each of AANAH and the Trust, enforceable against each of
AANAH and the Trust in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions. The LLC
Agreement will conform in all material respects to the description thereof in
the Prospectus and, at the Closing Time, will have been duly qualified under
the 1939 Act.
(p) Authorization of the LLC Common Securities. At the Closing Time, the
LLC Common Securities will have been duly authorized by the LLC Agreement and,
when issued and delivered by the LLC to AANAH against payment therefor as
described in the Registration Statement and Prospectus, will be validly issued
and (subject to the terms of the LLC Agreement) fully paid undivided beneficial
interests in the assets of the LLC and will conform in all material respects to
all statements relating thereto contained in the Prospectus; the issuance of
the LLC Common Securities is not subject to preemptive or other similar rights;
and at the Closing Time, and at each Date of Delivery, if any, all of the
issued and outstanding LLC Common Securities of the LLC will be directly owned
by AANAH free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
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(q) Authorization of LLC Preferred Securities. At the Closing Time, the
LLC Preferred Securities will have been duly authorized by the LLC Agreement
and, when issued and delivered pursuant to the LLC Agreement against payment of
the consideration set forth therein, will be duly issued and fully paid and
non-assessable, will be entitled to the benefits of the LLC Agreement and will
conform to the description thereof in the Prospectus; the issuance of the LLC
Preferred Securities is not subject to preemptive or other similar rights.
(r) Authorization of the Contingent Guarantee. The Contingent Guarantee
has been duly authorized by the Guarantor and the LLC and, when validly
executed and delivered (if applicable under applicable law) by the Guarantor
and the LLC, and assuming due authorization, execution and delivery by the
Guarantee Trustee, will constitute a valid and binding obligation of each of
the Guarantor and the LLC, enforceable against each of the Guarantor and the
LLC in accordance with its terms, except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions. The Contingent Guarantee will
conform in all material respects to all statements relating thereto in the
Prospectus and, at the Closing Time, will have been duly qualified under the
1939 Act.
(s) Authorization of Intercompany Securities. The Initial Intercompany
Securities have been duly authorized by the Bank, and when validly executed and
delivered to and paid for by the LLC, will constitute valid and binding
obligations of the Bank, enforceable in accordance with their terms, except to
the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions.
(t) Authorization of Perpetual Non-Cumulative Capital Securities. At the
Closing Time, the Perpetual Non-Cumulative Capital Securities will have been
duly authorized by the Bank, and when validly executed and delivered in
exchange for corresponding Trust Preferred Securities, will constitute valid
and binding obligations of the Bank, enforceable in accordance with their
terms, except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(u) Officer's Certificate. Any certificate signed by an officer of any of
the ABN AMRO Parties or any of their subsidiaries and delivered to the
Underwriters or to counsel for the Underwriters in connection with the offering
of the Offered Securities shall be deemed a representation and warranty by the
relevant ABN AMRO Parties to each Underwriter as to the matters covered thereby
on the date of such certificate.
Section 2 . Sale And Delivery To Underwriters, Closing.
(a) Offered Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set
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forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the initial public offering price set forth in Schedule B, the number
of Trust Preferred Securities set forth in Schedule A opposite the name of such
Underwriter (the "Initial Offered Securities"), plus any additional number of
Trust Preferred Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Option Offered Securities. Subject to the terms and conditions herein
set forth, the ABN AMRO Parties may grant, if so provided in Schedule B, an
option to the Underwriters, severally and not jointly, to purchase up to the
number or aggregate principal amount, as the case may be, of additional Trust
Preferred Securities to cover over-allotments, if any, set forth therein (the
"Option Offered Securities") at a price set forth therein, less an amount equal
to any distributions paid or payable on the Initial Offered Securities but not
payable on the Option Offered Securities. Such option, if granted, will expire
30 days after the date of this Agreement, and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
Offered Securities upon notice by Citigroup Global Markets Inc. to the ABN AMRO
Parties setting forth the number or aggregate principal amount, as the case may
be, of Option Offered Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery for
such Option Offered Securities. Any such time and date of payment and delivery
(each, a "Date of Delivery") shall be determined by Citigroup Global Markets
Inc., but shall not be later than seven full business days after the exercise
of said option, nor in any event prior to the Closing Time, unless otherwise
agreed upon by Citigroup Global Markets Inc.and the ABN AMRO Parties. If the
option is exercised as to all or any portion of the Option Offered Securities,
each of the Underwriters, severally and not jointly, will purchase that
proportion of the total number or aggregate principal amount, as the case may
be, of Option Offered Securities then being purchased which the number or
aggregate principal amount, as the case may be, of Initial Offered Securities
each such Underwriter has severally agreed to purchase as set forth on Schedule
A bears to the total number or aggregate principal amount, as the case may be,
of Initial Offered Securities, subject to such adjustments as Citigroup Global
Markets Inc. in its discretion shall make to eliminate any sales or purchases
of a fractional number or aggregate principal amount, as the case may be, of
Option Offered Securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Trust Preferred Securities shall be made at the offices
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ or at such other place as shall be agreed upon by the
Representatives and the ABN AMRO Parties, at 9:00 a.m. (Eastern time) on the
fourth business day after the date hereof (unless postponed in accordance with
the
11
provisions of Section 11), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives and the ABN
AMRO Parties (such time and date of payment and delivery being herein called
the "Closing Time"). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option Offered
Securities, payment of the purchase price for, and delivery of such Option
Offered Securities, shall be made at the above-mentioned offices of ▇▇▇▇▇ ▇▇▇▇
& ▇▇▇▇▇▇▇▇, or at such other place as shall be agreed upon by Citigroup Global
Markets Inc. and the ABN AMRO Parties, on the relevant Date of Delivery as
specified in the notice from Citigroup Global Markets Inc. to the ABN AMRO
Parties.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the ABN AMRO Parties, against
delivery to such persons designated by the Representatives for the respective
accounts of the Underwriters of one or more certificates in global form for the
Trust Preferred Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Trust
Preferred Securities which it has agreed to purchase.
The purchase price per Trust Preferred Security to be paid by the several
Underwriters for the Trust Preferred Securities shall be an amount equal to the
initial public offering price as set forth in Schedule B. The initial public
offering price per Trust Preferred Security shall be a fixed price to be
determined by agreement between the Representatives and the ABN AMRO Parties.
The initial public offering price and the purchase price, when so determined,
shall be set forth in Schedule B.
As compensation to the Underwriters for their commitments hereunder and in
view of the fact that the proceeds of the sale of the Trust Preferred
Securities will be used to purchase LLC Preferred Securities, the proceeds of
which will be invested in Initial Intercompany Securities, the Guarantor hereby
agrees to pay at the Closing Time (and at any relevant Date of Delivery) to the
Representatives, for the accounts of the several Underwriters, a commission per
Trust Preferred Security set forth on Schedule B.
At the Closing Time (and at any relevant Date of Delivery), the Guarantor
will pay, or cause to be paid, the commission payable at such time to the
Underwriters under Section 2 hereof by wire transfer of immediately available
funds to a bank account designated by the Representatives for the account of
Underwriters.
(d) Denominations; Registration. Certificates for the Trust Preferred
Securities shall be in such denominations and registered in such names as the
12
Representatives may request in writing at least one business day before the
Closing Time or the relevant Date of Delivery, as applicable. The Trust
Preferred Securities will be made available for examination and packaging by
the Representatives in The City of New York not later than 9:00 a.m. (Eastern
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as applicable.
Section 3. Covenants Of The ABN AMRO Parties. The ABN AMRO Parties (other
than AANAH) covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
ABN AMRO Parties, subject to Section 3(b), will comply with the requirements of
Rule 424(b) of the 1933 Act Regulations and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any of
such purposes. The ABN AMRO Parties will make reasonable efforts to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period when the Underwriters are
required to deliver a prospectus with respect to the Offered Securities, the
ABN AMRO Parties will give the Representatives notice of its intention to file
or prepare any amendment to the Registration Statement or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. Upon request by the Underwriters,
the ABN AMRO Parties will furnished or deliver to the Representatives and
counsel for the Underwriters, without charge, conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
13
documents incorporated or deemed to be incorporated by reference therein) and
conformed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The ABN AMRO Parties have delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the ABN AMRO Parties hereby consent
to the use of such copies for purposes permitted by the 1933 Act. The ABN AMRO
Parties will furnish to each Underwriter, without charge, during the period
when the prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus (as amended or supplemented) as
such Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The ABN AMRO Parties will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations and the 1939 Act and the 1939 Act Regulations with respect
to the offer of the Offered Securities so as to permit the completion of the
distribution of the Offered Securities as contemplated in this Agreement and in
the Prospectus. If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Trust Preferred Securities, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the ABN AMRO
Parties, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the ABN AMRO
Parties will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the ABN AMRO Parties will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The ABN AMRO Parties will use all reasonable
efforts, in cooperation with the Underwriters, to qualify the Offered
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Representatives may designate and to
maintain such qualifications in effect for a period of not less than one year
from the effective date of the Registration Statement; provided, however, that
the ABN AMRO
14
Parties shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Offered Securities have
been so qualified, the ABN AMRO Parties will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement.
(g) Rule 158. The ABN AMRO Parties will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to their
security holders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The ABN AMRO Parties will use or cause to be used the
net proceeds received from the sale of the Offered Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(i) Listing. The ABN AMRO Parties will use all reasonable efforts to
effect the listing of the Trust Preferred Securities on the New York Stock
Exchange and the Official Segment of Euronext Amsterdam N.V.'s Stock Market
("Euronext").
(j) Restriction on Sale of Securities. Except as contemplated by this
Agreement, during a period of 30 days from the date of the Prospectus, neither
the Trust nor the LLC nor any other subsidiary of the Guarantor that is similar
to the Trust or the LLC will, without the prior written consent of the
Representatives, directly or indirectly, sell, offer to sell, grant any option
for sale of, or otherwise dispose of, any Trust Preferred Securities or any LLC
Preferred Securities or any security convertible into or exchangeable into or
exercisable for Trust Preferred Securities or LLC Preferred Securities.
(k) Reporting Requirements. The ABN AMRO Parties, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
Section 4. Offering by Underwriters. Each Underwriter represents and
agrees that, prior to the publication of the advertisement as mentioned in
Article 47.7 of the Listing and Issuing Rules of Euronext Amsterdam N.V.
(Fondsenreglement), it has not made and will not make any contractually binding
offers (or solicitations of such offers) in respect of the Trust Preferred
Securities
15
to any individual or legal entity in The Netherlands, other than to individuals
or legal entities, who or which trade or invest in securities in the conduct of
a business or profession (which includes banks, firms, insurance companies,
pension funds, investment institutions, central governments, large
international and supranational organisations and treasuries and finance
companies of large enterprises).
Section 5. Payment Of Expenses.
(a) Expenses. The ABN AMRO Parties will pay all expenses incident to the
performance of their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, the Transaction Documents and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Offered Securities (other than fees of counsel for the Underwriters
related thereto), (iii) the preparation, issuance and delivery of the
certificates for the Trust Preferred Securities to the Underwriters, (iv) the
fees and disbursements of the ABN AMRO Parties' counsel, accountants, experts
and other advisors, (v) the qualification of the Offered Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of the TIA Trustees, including the reasonable fees and disbursements
of counsel for the TIA Trustees, (viii) any fees payable in connection with the
rating of the Trust Preferred Securities, (ix) the fees and expenses incurred
in connection with the listing of the Trust Preferred Securities on the New
York Stock Exchange and Euronext and (x) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Offered Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 6 or Section
10(a)(i) hereof, the ABN AMRO Parties shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 6. Conditions Of Underwriters' Obligations.
16
The obligations of the several Underwriters hereunder are subject to the
accuracy in all material respects of the representations and warranties of the
ABN AMRO Parties contained in Section 1 hereof and in certificates of any
officer of the ABN AMRO Parties or any subsidiary of the ABN AMRO Parties
delivered pursuant to the provisions hereof, to the performance by each of the
ABN AMRO Parties in all material respects of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective and at the Closing Time and at any relevant Date of
Delivery, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. Any prospectus required
to be filed in accordance with Rule 424(b) shall have been filed with the
Commission.
(b) Opinion of Netherlands Counsel. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership, Netherlands counsel to
the Guarantor, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such opinion for
each of the other Underwriters to the effect set forth in Exhibit A. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the ABN AMRO Parties and certificates of public officials and may contain
other customary or appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(c) Opinion of Counsel for AANAH. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., LaSalle Bank
Corporation, counsel to AANAH, shall have furnished to you her written opinion,
dated as of the Closing Time, in form and substance satisfactory to you, to the
effect that:
(i) This Agreement has been duly authorized, executed and delivered
by AANAH;
(ii) Each Transaction Document to which AANAH is a party has been
duly authorized, executed and delivered by AANAH and constitutes a legal,
valid and binding obligation of AANAH;
(iii) The execution by AANAH of the Underwriting Agreement and the
Transaction Documents to which it is a party and the performance of its
respective obligations thereunder, will not violate AANAH's
17
organizational documents or the laws of Illinois with general
applicability to which AANAH is subject.
Such counsel may state that he or she has relied as to certain factual
matters on information obtained from public officials, officers of AANAH and
other sources believed by her to be responsible, and has assumed that the
Offered Securities conform to the forms thereof examined by such counsel, and
that the signatures on all documents examined by such counsel are genuine,
assumptions which such counsel need not independently verify. Such opinion also
may contain other customary or appropriate assumptions and qualifications
reasonably satisfactory to counsel for the Underwriters.
(d) Opinion of U.S. Counsel for the ABN AMRO Parties. At the Closing Time,
the Representatives shall have received a written opinion, dated as of the
Closing Time, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel to the ABN AMRO Parties,
in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the other
Underwriters to the effect set forth in Exhibit B hereto. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the ABN AMRO
Parties and certificates of public officials. Such opinion also may contain
other customary or appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(e) Opinion of Delaware Counsel for the ABN AMRO Parties. At the Closing
Time, the Representatives shall have received a written opinion, dated as of
the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel to the
ABN AMRO Parties, in form and substance reasonably satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such opinion for
each of the other Underwriters to the effect that:
(i) The LLC has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware LLC Act.
(ii) Under the LLC Agreement and the Delaware LLC Act, the LLC
has all necessary limited liability company power and authority to
conduct its business as described in the Prospectus.
(iii) The LLC Preferred Securities issued to the Trust have been
duly authorized and validly issued and, subject to the qualifications
set forth in paragraph (iv) below, are fully paid and nonassessable
limited liability company interests in the LLC.
18
(iv) The Trust, as a member of the LLC, shall not be obligated
personally for any of the debts, obligations or liabilities of the
LLC, whether arising in contract, tort or otherwise solely by reason
of being a member of the LLC, except as the Trust may be obligated to
make payments provided for in the LLC Agreement and to repay any
funds wrongfully distributed to it.
(v) The provisions of the LLC Agreement, including the terms of
the LLC Preferred Securities, are permitted under the Delaware LLC
Act.
(vi) The LLC Agreement constitutes a legal, valid and binding
agreement of AANAH and the Trust, and is enforceable against AANAH
and the Trust, in accordance with its terms.
(vii) Under the LLC Agreement and the Delaware LLC Act, the LLC
has all necessary limited liability company power and authority to
execute and deliver the Underwriting Agreement and each of the
Transaction Documents to which it is a party, and to perform its
obligations thereunder.
(viii) Under the LLC Agreement and the Delaware LLC Act, the
execution and delivery by the LLC of the Underwriting Agreement and
each of the Transaction Documents to which it is a party, and the
performance by the LLC of its obligations thereunder, have been duly
authorized by all necessary limited liability company action on the
part of the LLC.
(ix) The issue and sale by the LLC of the LLC Preferred
Securities to the Trust pursuant to the Underwriting Agreement and
the LLC Agreement, and the performance by the LLC of its obligations
under each of the Transaction Documents to which it is a party, will
not violate (A) any Delaware statute, rule or regulation, or (B) the
Certificate of Formation of the LLC, dated March 28, 2003 or the LLC
Agreement.
(x) No consent, approval, authorization, order, registration,
filing or qualification of or with any Delaware court or Delaware
governmental agency or body is required solely in connection with (A)
the issuance and sale by the LLC of the LLC Preferred Securities to
the Trust as contemplated by the Prospectus, or (B) the execution,
delivery and performance by the LLC of the Underwriting Agreement or
any of the Transaction Documents to which it is a party.
19
(xi) Under the LLC Agreement and the Delaware LLC Act, the
issuance by the LLC of the LLC Preferred Securities is not subject to
the preemptive purchase rights of any Person.
(xii) The Trust has been duly created and is validly existing in
good standing as a statutory trust under the Delaware Trust Act.
(xiii) Under the Declaration and the Delaware Trust Act, the
Trust has all necessary trust power and authority to conduct its
business as described in the Prospectus.
(xiv) The provisions of the Declaration, including the terms of
the Trust Preferred Securities, are permitted under the Delaware
Trust Act.
(xv) The Declaration constitutes a legal, valid and binding
agreement of the Guarantor, AANAH and the Trustees, and is
enforceable against the Guarantor, AANAH and the Trustees, in
accordance with its terms.
(xvi) The Trust Preferred Securities are duly authorized by the
Declaration and when authenticated, issued and delivered in
accordance with the Declaration, the Trust Preferred Securities will
be duly and validly issued and, subject to the qualifications set
forth in paragraph (xvii) below, fully paid and nonassessable
interests in the Trust.
(xvii) The holders of Trust Preferred Securities, in their
capacity as such, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
We note that the holders may be obligated to make payments as set
forth in Sections 10.02 and 10.08 of the Declaration.
(xviii) Under the Declaration and the Delaware Trust Act, the
Trust has all necessary trust power and authority to execute and
deliver the Underwriting Agreement and the Transaction Documents to
which it is a party, and to perform its obligations thereunder.
(xix) Under the Declaration and the Delaware Trust Act, the
execution and delivery by the Trust of the Underwriting Agreement and
the Transaction Documents to which it is a party, and the performance
by the Trust of its obligations thereunder, have been duly authorized
by all necessary trust action on the part of the Trust.
20
(xx) Under the Delaware Trust Act and the Declaration, the
issuance of the Trust Preferred Securities is not subject to any
preemptive purchase rights of any Person.
(xxi) No consent, approval, authorization, order, registration
or qualification of or with any Delaware court or Delaware
governmental agency or Delaware body is required solely in connection
with (A) the issuance and sale by the Trust of the Preferred
Securities to the holders as contemplated by the Prospectus, and (B)
the execution, delivery and performance by the Trust of the
Underwriting Agreement and the Transaction Documents to which it is a
party.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the ABN AMRO Parties and certificates of public officials. Such
opinion may also contain other customary or appropriate assumptions and
qualifications reasonably satisfactory to counsel for the Underwriters.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the
Representatives shall have received the favorable opinions, dated as of the
Closing Time, of Mayer, Brown, ▇▇▇▇ & Maw, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters in form and substance satisfactory to the Underwriters.
(g) Opinion of Counsel for the TIA Trustees. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the TIA Trustees, in form and
substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters to the effect set forth in Exhibit C hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(h) Opinion of Netherlands Tax Counsel. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership, special Netherlands tax
counsel to the ABN AMRO Parties, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such opinion
for each of the other Underwriters. Such opinion shall confirm ▇▇▇▇▇▇▇▇ Chance
Limited Liability Partnership's opinion set forth in the Prospectus under the
caption "Taxation - Netherlands Taxation" and that, subject to the
qualifications set forth therein, the discussion set forth in the Prospectus
under such caption is an accurate summary of the Netherlands tax matters
described therein.
21
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the ABN AMRO Parties and certificates of public officials. Such
opinion may also contain other customary appropriate assumptions and
qualifications reasonably satisfactory to counsel for the Underwriters.
(i) Officers' Certificate. At the Closing Time, (and at any relevant Date
of Delivery) there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the ABN AMRO Parties and
their subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, and the Representatives shall have received a certificate
of officers of each of the ABN AMRO Parties, dated as of the Closing Time, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct in all
material respects with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the ABN AMRO Parties shall have complied in
all material respects with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and, to such officer's knowledge, no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(j) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young
Accountants a letter, dated as of the date hereof, in form and substance
reasonably satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus, including reports incorporated by reference therein.
(k) Bring-down Comfort Letter. At the Closing Time, the Representatives
shall have received from Ernst & Young a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (j) of this Section, except that the specified date
referred to shall be a date not more than five business days prior to the
Closing Time.
(l) Maintenance of Rating. At the Closing Time, the Trust Preferred
Securities and the LLC Preferred Securities shall be rated at least "A2" by
▇▇▇▇▇'▇ Investors Service and "A" by Standard & Poor's Ratings Group, a
22
division of ▇▇▇▇▇▇-▇▇▇▇, Inc. , and the ABN AMRO Parties shall have delivered
to the Representatives a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming that
the Trust Preferred Securities and the LLC Preferred Securities have such
ratings. Since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the securities of any of the ABN AMRO
Parties by any "nationally recognized statistical rating agency," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act,
and no such organization shall have publicly announced that it has under
surveillance or review, that does not indicate an improvement, its rating of
any securities of any of the ABN AMRO Parties.
(m) Approval of Listing. At the Closing Time, the Trust Preferred
Securities shall have been approved for listing on the New York Stock Exchange
and Euronext, subject only to official notice of issuance, and approved for
settlement through The Depository Trust Company ("DTC"), Euroclear and
Clearstream.
(n) Over-Allotment Option. In the event that the Underwriters exercise
their option to purchase all or any portion of the Option Offered Securities,
the representations and warranties of the ABN AMRO Parties contained herein and
the statements in any certificates furnished by the ABN AMRO Parties hereunder
shall be true and correct as of each Date of Delivery, and, at the relevant
Date of Delivery, the Representatives shall have received:
(i) A certificate, dated such Date of Delivery, of officers of
each of the ABN AMRO Parties, confirming that the certificate
delivered at the Closing Time pursuant to Section 6(i) hereof remains
true and correct as of such Date of Delivery.
(ii) The favorable opinion of ▇▇▇▇▇▇▇▇ Chance Limited Liability
Partnership, Netherlands counsel to the Guarantor, in form and
substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Offered Securities and
otherwise to the same effect as the opinion required by Section 6(b)
hereof.
(iii) The favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., LaSalle
Bank Corporation, counsel to AANAH, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Offered Securities and otherwise to
the same effect as the opinion required by Section 6(c) hereof.
(iv) The favorable opinion of ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S.
counsel to the ABN AMRO Parties, in form and substance satisfactory to
23
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Offered Securities and otherwise to the same
effect as the opinion required by Section 6(d) hereof.
(v) The favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.,
Delaware counsel to ABN AMRO Parties, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Offered Securities and otherwise to
the same effect as the opinion required by Section 6(e) hereof.
(vi) The favorable opinion of Mayer, Brown, ▇▇▇▇ & Maw, counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Offered Securities and otherwise to the same effect as the
opinion required by Section 6(f) hereof.
(vii) The favorable opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel
for the TIA Trustees, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Offered Securities and otherwise to the same effect as the
opinion required by Section 6(g) hereof.
(viii) The favorable opinion of ▇▇▇▇▇▇▇▇ Chance Limited
Liability Partnership, special Netherlands tax counsel to the ABN
AMRO Parties, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Offered Securities and otherwise to the same effect as the opinion
required by Section 6(h) hereof.
(ix) A letter from Ernst & Young, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to the Representatives pursuant to Section 6(j) hereof, except that
the "specified date" on the letter furnished pursuant to this
paragraph shall be a date not more than three business days prior to
such Date of Delivery.
(x) Since the date of this Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to
the securities of any of the ABN AMRO Parties by any "nationally
recognized statistical rating agency," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no
such organization shall have publicly announced that it has under
surveillance or review, that does not indicate an improvement, its
rating of any securities of any of the ABN AMRO Parties.
24
(o) Additional Documents. At the Closing Time, and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Offered Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the ABN AMRO Parties in
connection with the issuance and sale of the Offered Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled in all material respects when and as required to
be fulfilled, this Agreement (or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option Offered
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Offered Securities on such Date of
Delivery) may be terminated by the Representatives by notice to the ABN AMRO
Parties at any time at or prior to the Closing Time (or such Date of Delivery,
as applicable), and such termination shall be without liability of any party to
any other party except as provided in Section 5 and except that Sections 1, 7,
8 and 9 shall survive any such termination and remain in full force and effect.
Section 7. Indemnification.
(a) Indemnification of Underwriters. The ABN AMRO Parties agree, jointly
and severally, to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount
25
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Guarantor; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and
disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above;
provided, however, that the indemnity set forth in this Section 7(a) shall
not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the ABN AMRO Parties by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
The foregoing indemnity with respect to any untrue statement or alleged
untrue statement contained in or omission or alleged omission from a
preliminary prospectus shall not inure to the benefit of the Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
loss, liability, claim, damage or expense purchased any of the Offered
Securities which are the subject thereof if the ABN AMRO Parties shall sustain
the burden of proving that such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) if so required by law
at or prior to the written confirmation of the sale of such Offered Securities
to such person and the untrue statement contained in or omission from such
preliminary prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented) and the ABN AMRO Parties had previously furnished
copies thereof to such Underwriter.
(b) Indemnification of Company, Directors and Officers. Each Underwriter,
severally in proportion to its respective purchase obligation and not jointly,
agrees to indemnify and hold harmless the ABN AMRO Parties, directors or
Supervisory or Managing Board members or the equivalent of the ABN
26
AMRO Parties, the Issuer Trustees of the Trust, each of the officers of the ABN
AMRO Parties who signed the Registration Statement, and each person, if any,
who controls any of the ABN AMRO Parties within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the ABN AMRO Parties by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
7(a) above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section
7(b) above, counsel to the indemnified parties shall be selected by the ABN
AMRO Parties, provided that if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying parties
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any one firm of local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying
27
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
Section 8. Contribution.
If the indemnification provided for in Section 7 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the ABN AMRO Parties on the one hand and the
Underwriters on the other hand from the offering of the Offered Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred
28
to in clause (i) above but also the relative fault of the ABN AMRO Parties on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the ABN AMRO Parties on the one hand and
the Underwriters on the other hand in connection with the offering of the
Offered Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses but
after deducting the total underwriting commission received by the Underwriters)
received by the ABN AMRO Parties and the total underwriting commission received
by the Underwriters, in each case as set forth on the cover of the Prospectus,
bear to the aggregate initial public offering price of the Offered Securities
as set forth on such cover.
The relative fault of the ABN AMRO Parties on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the ABN AMRO Parties or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
29
The ABN AMRO Parties and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Trust Preferred Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director or Supervisory or Managing Board member or the equivalent of
the ABN AMRO Parties, the Regular Trustees of the Trust, each officer of the
ABN AMRO Parties who signed the Registration Statement, and each person, if
any, who controls any of the ABN AMRO Parties within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the ABN AMRO Parties. The Underwriters' respective obligations
to contribute pursuant to this Section 8 are several in proportion to the
number of Trust Preferred Securities set forth opposite their respective names
in Schedule A hereto and not joint.
Section 9. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the ABN AMRO Parties or any of their
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the ABN AMRO Parties,
and shall survive delivery of the Trust Preferred Securities to the
Underwriters.
Section 10. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Guarantor or AANAH, at any time at or prior to the
Closing Time or any relevant Date of Delivery (i) if there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs or
business prospects of the ABN AMRO Parties and their subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof, declaration by the United States or the
Netherlands of a national emergency or war or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Trust Preferred
30
Securities or to enforce contracts for the sale of the Trust Preferred
Securities, or (iii) if trading in any securities of the ABN AMRO Parties has
been suspended or materially limited by the Commission, the New York Stock
Exchange, or Euronext or if trading generally on the American Stock Exchange or
the New York Stock Exchange or Euronext or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of
said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal, New York
State, Illinois or Netherlands authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 5 hereof, and provided further that Sections 1,
7, 8 and 9 shall survive such termination and remain in full force and effect.
Section 11. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Trust Preferred
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(iv) if the number of Defaulted Securities does not exceed 10%
of the aggregate number of the Trust Preferred Securities to be
purchased hereunder, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(v) if the number of Defaulted Securities exceeds 10% of the
aggregate number of the Trust Preferred Securities to be purchased
hereunder, this Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Offered Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the ABN
AMRO Parties to sell, such Option Offered Securities on such Date of
Delivery) shall terminate without liability on the part of any
non-defaulting Underwriter.
31
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of this Agreement or (ii) in the case of a Date of Delivery after
the Closing Time, a termination of the obligations of the Underwriters and the
ABN AMRO Parties with respect to the related Option Offered Securities, as the
case may be, either the Representatives or the Guarantor or AANAH shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements.
Section 12. Notices.
All notices, requests, statements and other communications hereunder shall
be in writing and shall be delivered or sent by mail, messenger or any standard
form of telecommunication. Notices to the Underwriters shall be directed to the
Representatives c/o Citigroup Global Markets, Inc. General Counsel (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global Markets,
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention General
Counsel; and notices to the Guarantor shall be directed to ABN AMRO Holding
N.V. at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Group Asset and
Liability Management, (fax no.: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇), to AANAH, the Trust and the
LLC shall be directed to AANAH, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Chief Legal Officer, with copies to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Any such notice, request, statement or communication shall be effective upon
receipt thereof.
Section 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, and the ABN AMRO Parties and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the ABN
AMRO Parties and their respective successors and the controlling persons and
officers and directors and Supervisory and Managing Board members or the
equivalent referred to in Sections 7 and 8 and Regular Trustees and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the ABN AMRO Parties and
their respective successors, and said controlling persons and officers and
directors and Supervisory and Managing Board members or the equivalent and
Regular
32
Trustees and their heirs and legal representatives, and for the benefit
of no other person, firm or corporation. No purchaser of Trust Preferred
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 14. Governing Law And Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
(b) Submission to Jurisdiction. Each of the Guarantor and the Bank
irrevocably consents and agrees, for the benefit of each Underwriter, that any
legal action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection with this
Agreement may be brought in the courts of the State of New York or the courts
of the United States of America located in The City of New York and until
amounts due and to become due in respect of the Offered Securities or otherwise
under this Agreement have been paid, hereby irrevocably consents and submits to
the non-exclusive jurisdiction of each such court in personam, generally and
unconditionally with respect to any such action, suit or proceeding for itself
and in respect of its properties, assets and revenues. Service of process upon
AANAH in any such action, suit or proceeding shall be deemed in every respect
service of process upon the Guarantor and the Bank. The Guarantor and the Bank
hereby irrevocably and unconditionally waive, to the fullest extent permitted
by law, except as otherwise provided for in the Transaction Documents, any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions, suits or proceedings brought in the United States
Federal courts located in The City of New York or the courts of the State of
New York and hereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. The
provisions of this Section 14 shall survive any termination of this Agreement,
in whole or in part.
(c) No Sovereign Immunity. To the extent that the Guarantor, the Bank or
any of their properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any thereof, from setoff or counterclaim, from the
jurisdiction of any court, from service of process from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at
33
any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, the Transaction Documents or the Offered Securities, the
Guarantor and the Bank hereby irrevocably and unconditionally waive, and agree
not to plead or claim, any such immunity and consents to such relief and
enforcement.
(d) Judgment Currency. The Guarantor and the Bank agree to indemnify the
Underwriters against any loss incurred by the Underwriters, as a result of any
judgment or order given or made for any amount due hereunder or under the
Offered Securities and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than U.S. dollars (the "Obligation
Currency"), and as a result of any variation as between (i) the rate of
exchange at which the Obligation Currency amount is converted into Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which an Underwriter is able to purchase the Obligation Currency
with the amount of the Judgment Currency actually received by such Underwriter.
The foregoing indemnity shall constitute a separate and independent obligation
of the Guarantor and the Bank and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. In determining the
rate of exchange, any premiums and costs of exchange payable in connection with
the purchase of, or conversion into, the relevant currency shall be taken into
account.
Section 15. Effect Of Headings.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
* * *
34
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the ABN AMRO Parties a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the ABN AMRO Parties in accordance with
its terms.
Very truly yours,
ABN AMRO BANK N.V.
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
ABN AMRO HOLDING N.V.
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
ABN AMRO NORTH AMERICA HOLDING COMPANY
By:
-------------------------------------------
Name:
Title:
35
ABN AMRO CAPITAL FUNDING LLC V
BY: ABN AMRO NORTH AMERICA HOLDING COMPANY,
as Sole Member
By:
-------------------------------------------
Name:
Title:
36
ABN AMRO CAPITAL FUNDING TRUST V
By: LASALLE FUNDING LLC, as Depositor
By:
-------------------------------------------
Name:
Title:
37
CONFIRMED AND ACCEPTED,
as of the date first above written:
ABN AMRO INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
Acting severally on behalf of themselves
and as Representatives of the
other Underwriters named in
Schedule A hereto.
By: CITIGROUP GLOBAL MARKETS INC.
By:
Name:
Title:
38
SCHEDULE A
Name of Underwriter Number of Trust Prefferred Securities
------------------- -------------------------------------
underwriting
(securities in 000s)
----------------------------------------------------------------------------------------------------------
ABN AMRO Incorporated 5087.5
Citigroup Global Markets Inc. (physcial bookrunner) 5087.5
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 5065
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 5065
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 5065
Prudential Securities Incorporated 5065
UBS Securities LLC 5065
Wachovia Securities, Inc. ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC 1000
▇▇▇▇▇▇ Brothers Inc. 1000
▇▇▇▇▇ Fargo ▇▇▇ ▇▇▇▇▇▇, LLC 1000
----------------------------------------------------------------------------------------------------------
Management Group Subtotal 43,565
----------------------------------------------------------------------------------------------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 315
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc. 315
Deutsche Bank Securities, Inc. 315
▇▇▇▇▇▇▇▇▇▇ & Co. Inc. 315
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. 315
H&R Block Financial Advisors, Inc. 315
▇.▇. ▇▇▇▇▇▇ Securities Inc. 315
McDonald Investments, Inc. 315
Quick & ▇▇▇▇▇▇, Inc. 315
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 315
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. 315
TD Waterhouse Capital Markets LLC 315
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. 315
----------------------------------------------------------------------------------------------------------
First Tier Syndicate Subtotal 4095
----------------------------------------------------------------------------------------------------------
SA-1
----------------------------------------------------------------------------------------------------------
Advest, Inc. 90
BB&T Investment Services Inc. 90
▇▇▇▇▇▇▇▇ & Partners, L.P. 90
▇.▇. ▇▇▇▇ & Associates, Inc. 90
Credit Suisse First Boston LLC 90
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. 90
▇.▇. ▇▇▇▇▇▇▇▇ & Co. 90
▇▇▇▇▇▇▇▇▇ & Company LLC 90
▇▇▇▇▇ Securities Inc. 90
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Incorporated ▇▇
▇.▇.▇. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC 90
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 90
Mesirow Financial, Inc. 90
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 90
NatCity Investments, Inc. 90
Pershing 90
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated 90
▇▇▇▇, ▇▇▇▇ & Co., Inc. 90
Sandler ▇'▇▇▇▇▇ & Partners, L.P. 90
Southwest Securities, Inc. 90
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated 90
SunTrust Capital Markets, Inc. 90
▇▇▇▇▇▇▇▇ Capital Partners, L.P. 90
Wedbush ▇▇▇▇▇▇ Securities, Inc. 90
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. 90
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Second Tier Syndicate Subtotal 2340
----------------------------------------------------------------------------------------------------------
Total 50000
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SA-2
SCHEDULE B
Final Terms and Conditions
Issuer: ABN AMRO Capital Funding Trust V (the
"Trust"), a Delaware statutory trust, is a
direct wholly owned subsidiary of ABN AMRO
North America Holding ("AANAH"), and is also
an indirect wholly owned subsidiary of ABN
AMRO Holding N.V. ("the Guarantor"). The sole
assets of the Trust will be the LLC's
Preferred Securities issued by the ABN AMRO
Capital Funding LLC V (the "LLC"). The LLC is
organized as a limited liability company
under the laws of the State of Delaware and
is a direct wholly owned subsidiary of the
AANAH and an indirect wholly owned subsidiary
of the Guarantor, and is the issuer of the
Preferred Securities. The sole assets of the
LLC will be the Intercompany Securities to be
issued by the ABN AMRO Bank N.V. (the
"Bank").
Guarantor: ABN AMRO Holding N.V., the holding company of
the Bank, a limited liability corporation
organized under the laws of The Netherlands,
and its successors.
Preferred Securities Ratings: A2/A (Moody's/Standard & Poor's)
Pricing Date: June 26, 2003
Settlement Date: July 3, 2003
Maturity Date: Perpetual
Offer Price: $25.00 per Trust Preferred Security
SB-1
Securities Offered: 50,000,000 Noncumulative Guaranteed Trust
Preferred Securities (the "Trust Preferred
Securities")
Gross Spread: 3.15% ($0.7875)
Selling Concession: $0.50
Management Fee: $0.1575
Underwriting Fee: $0.13
Reallowance: $0.50
For Orders of 10,000 shares or
more: 2.00% ($.50)
Selling Concession: $.30
Management Fee: $.10
Underwriting Fee: $.10
Dividends: Dividends will be payable quarterly on the
last day of September, December, March and
June of each year commencing September 30th
2003, at a fixed rate per annum of 5.90% of
the liquidation preference on a
non-cumulative basis.
Additional Amounts All payments in respect of the trust
preferred securities will be made without
withholding or deduction for or on account of
any relevant tax, unless the withholding or
deduction of such relevant tax is required by
law. In that event, the Trust will pay, as
further dividends, such additional amounts as
may be necessary in order that the net
amounts received by the holders of the trust
securities after such withholding or
deduction will equal the amount which would
have been received in respect of the trust
securities in the absence of such withholding
or deduction.
Optional Redemption: The Trust Preferred Securities will be
redeemed in whole or in part upon the
redemption of the LLC's Preferred Securities.
The LLC's Preferred Securities may be
redeemed with the prior approval of the Dutch
Central Bank and the Guarantor at the option
of the LLC on any dividend date occurring on
or after July 3, 2008 at a redemption price
equal to the liquidation preference plus any
accumulated and unpaid Dividends.
SB-2
Special Event Redemption: The LLC will have the right to redeem in
whole but not in part the LLC Preferred
Securities, and consequently the Trust
Preferred Securities upon the occurrence of a
Capital Event, Tax Event, or Investment
Company Event prior to July 3, 2008 at a
redemption price equal to the liquidation
preference plus any accumulated and unpaid
Dividends. If an Investment Company Event
occurs with respect to the LLC, the LLC
preferred securities may be distributed to
the holders of the trust preferred
securities. If the LLC preferred securities
are distributed, the Guarantor will use its
commercially reasonable efforts to cause the
LLC preferred securities to be listed on the
New York Stock Exchange and Euronext or on
such other national securities exchange or
similar organization as the trust preferred
securities are then listed or quoted.
Guarantee: The Guarantor will guarantee any payments with
respect to Dividends and the Liquidation
Preference of the Trust Preferred Securities
and LLC Preferred Securities. The Guarantee
constitutes an unsecured obligation of the
Guarantor and will rank junior to all
indebtedness of the Guarantor, pari passu
with any parity guarantees and senior to its
ordinary shares.
Regulatory Event: If a Regulatory Event occurs, then the trust
preferred securities issued by the Trust will
be exchanged for perpetual, non-cumulative
capital securities of ABN AMRO Bank N.V.. A
Regulatory Event occurs when the Bank is
notified by the regulator to the effect that
at any initial intercompany security interest
payment date, the Bank's capital adequacy
ratio would, after such payment of such
interest, be less than the minimum capital
adequacy requirements as then applied and
enforced by the regulator.
Use of Proceeds: All of the proceeds from the sale of the
Trust Preferred Securities will be invested
by the Trust in the LLC Preferred Securities.
The LLC will use the funds from the sale of
the LLC Preferred Securities, together with
funds contributed by ABN AMRO North America
Holding, Inc, in return for the LLC Common
Securities, to make an investment in the
Initial Intercompany Securities issued by ABN
AMRO Bank N.V. (the "Bank"). The Bank will
use the proceeds from the sale of the Initial
Intercompany Securities for general corporate
purposes.
Greenshoe Option: The underwriters may purchase up to an
additional 5,000,000 trust preferred
securities (10% of the total trust preferred
securities offered) at the public offering
price solely to cover over-allotments within
30 days. If the underwriters exercise this
option in whole or in part, ABN AMRO Holding
N.V. will pay underwriting commissions of
$.7875 per additional trust preferred
security so purchased.
Listing: New York Stock Exchange and the Official
Segment of the stock market of Euronext
Amsterdam N.V.
DRD Eligible: No
CUSIP: ▇▇▇▇▇▇▇▇▇
ISIN: US00372P2039
Listing: NYSE
SB-3
Exhibit A
1. Each of ABN AMRO Holding N.V., (the "Guarantor") and ABN AMRO Bank N.V.
(the "Bank") has been duly incorporated and is validly existing as a public
limited liability company under the laws of The Netherlands.
2. Each of the Guarantor and the Bank has the corporate power under its
organizational documents to execute the Underwriting Agreement and the
Transaction Documents to which it is a party and to perform its obligations
thereunder.
3. Each of the Guarantor and the Bank has taken all necessary corporate
action required by its Articles and by the laws of The Netherlands to authorize
the execution of the Underwriting Agreement and the Transaction Documents to
which it is a party and the performance of its obligations thereunder.
4. The execution by the Guarantor or the Bank, as the case may be, of the
Underwriting Agreement and the Transaction Documents to which it is a party,
and the performance by each of the Guarantor and the Bank of its respective
obligations thereunder, will not violate the Guarantor's or the Bank's
organizational documents or the laws of The Netherlands with general
applicability to which the Guarantor and the Bank are subject.
5. (a) The choice of the laws of The Netherlands and, to the extent
applicable, of the laws of the State of New York, United States of America, in
the Guarantees and the Contingent Guarantee, (b) the choice of the laws of the
State of New York, United States of America in the Underwriting Agreement, the
Initial Intercompany Security and the Services Agreement and (c) the choice of
the laws of the State of Delaware, United States of America in the other
Transaction Documents (other than those referred to under (b)) is a valid
choice of law and would be given effect by the courts of The Netherlands with
respect to the obligations of the Guarantor and the Bank thereunder.
6. Assuming due authorization and execution by the Other Parties to the
Transaction Documents to which the Guarantor or the Bank is a party and
assuming execution of the Transaction Documents to which the Guarantor or the
Bank is a party (a) by two members, acting jointly, of the managing board
("raad van bestuur") of the Guarantor or (b) validly and effectively on behalf
of the Bank, as the case may be, the Transaction Documents to which the
Guarantor or the Bank is a party constitute valid and binding agreements of the
Guarantor and of the Bank, as the case may be, enforceable in accordance with
their terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws of general applicability affecting
creditor's rights and (b) rights of
A-1
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
7. As the Guarantees by their terms are guarantees for the benefit of each
Holder from time to time of a Trust Security or a LLC Preferred Security, as
the case may be, and contain a provision to the effect that no rights
thereunder shall exist for a Holder or former Holder other than those of such
Holder with respect to the Trust Securities or LLC Preferred Securities held by
him, it is our view that the rights of a Holder under the Guarantees, with
respect to a Trust Security or a LLC Preferred Security, as the case may be,
that is transferred to a subsequent Holder, will be transferred as a matter of
law to that subsequent Holder, pursuant to Article 6:251 of the Dutch Civil
Code ("DCC"). It should be noted, however, that we are not aware of any legal
precedent concerning such a transfer, of any legal writer specifically
addressing this issue nor of any previous application of this provision in a
transaction comparable to the transaction contemplated by the Guarantees other
than the transaction in respect of which a Registration Statement No. 333-9224
on Form F-3 was filed with the United States Securities and Exchange Commission
(the "SEC") under the United States Securities Act of 1933, as amended (the
"Securities Act"). Furthermore, Article 6:251 DCC is not applicable in the case
of a transfer of a Trust Security or a LLC Preferred Security as a consequence
of a general transfer ("onder algemene titel") of assets of a Holder (such as
may be the case inter alia upon a legal merger or upon a person's death). In
that case the rules applicable to such general transfer should decide as to the
effects of such transfer on the rights under the Guarantees.
8. In addition to a transfer under Article 6:251 DCC a subsequent Holder
of a Trust Security or a LLC Preferred Security, as the case may be, may, as
long as the agreements pursuant to which the Guarantees are created continue
unaltered, become entitled to the rights under the Guarantees with respect to
that Trust Security or LLC Preferred Security, as the case may be, by accepting
the third party beneficiary right ("derdenbeding") set forth in Section 5.09 of
the Guarantees. As the third party beneficiary right is irrevocable and without
consideration for the subsequent Holder pursuant to Section 5.09 of the
Guarantees, such subsequent Holder is under paragraph 4 of Article 6:253 DCC
deemed to have accepted such right, if he has become aware of the right and has
not immediately rejected it. It should be noted that acceptance by a subsequent
Holder of a Trust Security or LLC Preferred Security, as the case may be, of
the rights under the Guarantees after the Guarantor has been declared bankrupt
or become subject to a moratorium of payments or emergency regulations
("noodregeling") as referred to in chapter X of the Act on the Supervision of
the Credit System ("Wet Toezicht Kredietwezen 1992") or otherwise has lost the
legal capacity to enter into an agreement with the subsequent Holder will not
be effective.
A-2
9. No consent, approval, authorisation, registration or other action by,
or filing with, any governmental authority of The Netherlands, is required as
of the date hereof in connection with the execution by the Guarantor, the Bank
or the Other Parties to the Underwriting Agreement and the Transaction
Documents, and the performance by the Guarantor, the Bank and the other parties
of their obligations thereunder or to ensure their enforceability or their
admissibility in evidence in the courts of The Netherlands, except for notice
requirements to The Netherlands Central Bank pursuant to the Act on Foreign
Financial Relations and the rules and regulations promulgated thereunder.
Failure to observe the requirements set forth in the preceding sentence does
not affect the legality, validity or enforceability of any of the agreements
referred to in the previous sentence.
10. The Other Parties are not in violation of the laws of The Netherlands,
nor are they required under the laws of The Netherlands to obtain any license,
permit, or other similar authorization or consent of or from the government of
The Netherlands or any governmental subdivision thereof solely due to their
entering into the Underwriting Agreement and the Transaction Documents to which
they are a party.
11. It is not illegal in The Netherlands for the Guarantee Trustee (as
defined in each of the Guarantees) and the Guarantee Trustee is not unqualified
or incompetent in accordance with the laws of The Netherlands, to perform any
act or acts or exercise any right, power, duty or obligation conferred or
imposed on the Guarantee Trustee under articles 2, 3 and 4 of each of the
Guarantees and the Contingent Guarantee.
12. It is not necessary that BNY Midwest Trust Company, acting in its
capacity as the Guarantee Trustee under each of the Guarantees, should be
licensed, qualified or otherwise entitled to carry on business in The
Netherlands (i) in order to enable it to enforce its rights, or exercise any
power, duty or obligation conferred or imposed on it, under each of the
Guarantees (including, without limitation, its right to bring a claim or a
proceeding on behalf of the Holders in a court of competent jurisdiction in The
Netherlands to enforce the obligations of the Guarantor thereunder) or (ii) by
reason of the execution of the Guarantees or the performance by the Guarantee
Trustee of its obligations thereunder.
A-3
Exhibit B
1. Each of the Guarantees, the Contingent Guarantee, the Declaration and
the LLC Agreement have been qualified under the 1939 Act.
2. None of the ABN AMRO Parties is, or after giving effect to the offering
and sale of the Offered Securities and the application of the net proceeds
therefrom as described in the Prospectus, will be required to be registered as
an "investment company" under the 1940 Act.
3. No consent, approval, authorization, order, registration or
qualification of or with any federal or New York court or governmental agency
or body is required under any statute, order, rule or regulation for the issue
and sale by the Guarantor, the Trust and the LLC (the "Registrants") of the
Offered Securities or the Contingent Guarantee, and the compliance by each ABN
AMRO Party with the provisions of the Underwriting Agreement and each
Transaction Document to which it is a party, except for (a) the registration
under the 1933 Act of the Offered Securities and Contingent Guarantee, (b)
qualification of the Guarantees, the Contingent Guarantee, the LLC Agreement
and the Declaration under the 1939 Act and (c) such consents, approvals,
authorizations, orders, registrations or qualifications as may be required
under the state securities or "blue sky" laws in connection with the purchase
and distribution of the Offered Securities and the Contingent Guarantee by the
Underwriters.
4. The statements in the Prospectus under the captions "Prospectus Summary
- Introduction," "Prospectus Summary -- The Trust," "Prospectus Summary -- The
LLC," "Prospectus Summary -- The Formation," "Prospectus Summary -- The
Offering," "ABN AMRO Capital Funding Trust V," "ABN AMRO Capital Funding LLC
V," "Description of the Trust Securities," "Description of the Perpetual
Non-Cumulative Capital Securities," "Description of the LLC Securities,"
"Description of the Guarantee and the Contingent Guarantee", "Description of
the Initial Intercompany Securities" and "Certain ERISA Considerations,"
insofar as such statements purport to constitute a summary of the terms of the
Transaction Documents, constitute accurate summaries thereof in all material
respects.
5. We hereby confirm (a) our opinion set forth in sub-section of the
Prospectus captioned "Taxation -- U.S. Taxation" and (b) that, subject to the
qualifications set forth therein, the discussion set forth in the Prospectus
under such caption is an accurate summary of the U.S. federal income tax
matters described therein.
6. The Registration Statement has become effective under the 1933 Act and
the Prospectus was filed on [____], 2003 pursuant to Rule 424(b) under
B-1
the 1933 Act; to our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened under the 1933 Act.
7. The Registration Statement and the Prospectus (other than the reports
of experts pertaining to the financial statements and the financial statements
and other financial and statistical information contained therein, as to which
we express no opinion) comply as to form in all material respects with the
applicable requirements of the 1933 Act, the 1939 Act, the 1933 Act Regulations
and the 1939 Act Regulations.
8. Each document filed with the Commission pursuant to the 1934 Act (other
than reports of experts pertaining to financial statements and the financial
statements and other financial and statistical information contained in any
document, as to which we express no opinion) that is incorporated by reference
in the Prospectus, when so filed, complied as to form in all material respects
with the requirements of the particular form of the Commission upon which it
was filed.
9. The execution and delivery of the Underwriting Agreement and the
Transaction Documents, the consummation of the transactions contemplated
thereby and the compliance with the terms thereof do not and will not conflict
with, violate or result in a breach of any of the terms or provisions of any
existing applicable New York or federal law, rule or regulation, or any
judgment order or decree of any New York court or federal court located in the
State of New York, in each case known to us and having jurisdiction over the
ABN AMRO Parties or any subsidiary thereof or any of their respective
properties.
10. To our knowledge, there is no pending or threatened action, suit or
proceeding before any New York or federal court or governmental agency,
authority or body involving the ABN AMRO Parties or any of their subsidiaries
of a character required to be disclosed in the Prospectus that is not
adequately disclosed as required.
11. Sections 2, 3 and 4 of the Guarantees and the Contingent Guarantee
each constitute a valid and binding agreement of Holding, enforceable against
Holding in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
12. The Underwriting Agreement constitutes a valid and binding agreement
of each ABN AMRO Party, enforceable against such ABN AMRO
B-2
Party in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and by general principals of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
13. The Intercompany Securities, the Perpetual Non-Cumulative Capital
Securities and the Services Agreement each constitute, or in the case of the
Perpetual Non-Cumulative Capital Securities, will constitute, a valid and
binding agreement of each ABN AMRO Party thereto, enforceable against such ABN
AMRO Party in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and by general principals of equity
(regardless of whether enforceability is considered in a proceeding at law or
in equity).
14. Nothing has come to our attention that would lead us to believe that
the Registration Statement (except for financial statements and schedules and
other financial or statistical data included therein, as to which we make no
statement), on the date declared effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (except for financial statements and other financial or statistical
data included therein, as to which we make no statement), at the date thereof
or hereof, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
▇-▇
▇▇▇▇▇▇▇ ▇
▇. ▇▇▇ ▇▇▇▇▇▇▇ Trust Company, as Property Trustee, Guarantee Trustee and
Manager Trustee (collectively, the "BNY Trustee"), is a banking corporation
organized and validly existing and in good standing under the laws of the State
of New York and is authorized and qualified to accept the trusts imposed by the
Declaration and to act as Property Trustee under the Declaration for the Trust
Preferred Securities.
2. Each of the Transaction Documents has been duly authorized, executed
and delivered by the BNY Trustee.
C-1