EXHIBIT 1-a
[$ ]
ABN AMRO BANK N.V.
DEBT SECURITIES
Fully and Unconditionally Guaranteed by
ABN AMRO Holding N.V.
UNDERWRITING AGREEMENT
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ABN AMRO Incorporated
[NAMES OF OTHER CO-MANAGERS]
c/o ABN AMRO Incorporated
1325 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
ABN AMRO Bank N.V., a public limited liability company incorporated
under the laws of The Netherlands (the "Bank"), proposes to issue and sell to
the several Underwriters named in Schedule I hereto (the "Underwriters") $[ ]
principal amount of its [ ]% notes due ____ (the "Notes") to be issued pursuant
to the provisions of an Indenture dated as of November 27, 2000 between the Bank
and The Chase Manhattan Bank, as Trustee (the "Trustee"), as supplemented by the
First Supplemental Indenture dated as of September __, 2003 among the Bank, the
Trustee and ABN AMRO Holding N.V., a public limited liability company
incorporated under the laws of the Netherlands, as guarantor ("Holding"), and as
further supplemented from time to time, (as so supplemented, the "Indenture").
The Notes will be unconditionally guaranteed by Holding to the extent set forth
in the Indenture (the "Guarantee"). The Notes and the Guarantees are
collectively referred to herein as the "Securities".
The Bank and Holding have filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Securities and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"). The term "Registration Statement" means the registration
statement, including the exhibits thereto, as amended to the date of this
Agreement. 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 Securities,
together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement", "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Bank with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
1. Representations and Warranties. The Bank and Holding represent and
warrant to and agree with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part became effective,
did not contain and each such part, as amended or supplemented, if
applicable, will not contain any 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, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set
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forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Bank or Holding in writing by
such Underwriter through you expressly for use therein or (B) to that part
of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee.
(c) Each of the Bank and Holding has been duly incorporated, is
validly existing as a limited liability company incorporated under the laws
of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, 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 Bank and Holding and its subsidiaries
taken as a whole.
(d) Each subsidiary of the Bank and Holding has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation (where such legal concept
has relevance), has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, 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 Bank and Holding and its subsidiaries taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by
the Bank and Holding.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Bank and
Holding and is a valid and binding agreement of the Bank and Holding,
enforceable in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(g) The Guarantee has been duly authorized by Holding and such
Guarantee conforms in all material respects to the description thereof
contained in the Prospectus.
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(h) The Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, the Notes and the Guarantees will be entitled to the
benefits of the Indenture and the Notes will be valid and binding
obligations of the Bank and the Guarantees will be valid and binding
obligations of Holding, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The execution and delivery by each of the Bank and Holding of, and
the performance by each of the Bank and Holding of its obligations under,
this Agreement, the Indenture and the Securities will not contravene any
provision of applicable law or the articles of association or by-laws of
each of the Bank and Holding, respectively, or any agreement or other
instrument binding upon the Bank or any of its subsidiaries that is
material to the Bank and its subsidiaries, taken as a whole, or Holding or
any of its subsidiaries that is material to Holding and its subsidiaries,
taken as a whole, as the case may be, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Bank or
Holding, respectively, or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Bank and Holding,
respectively, of their respective obligations under this Agreement, the
Indenture or the Securities, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Bank and its subsidiaries taken as a whole, or Holding
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or
threatened to which the Bank or Holding or any of their respective
subsidiaries is a party or to which any of the properties of the Bank or
Holding or any of their respective subsidiaries is subject that are
required to be described in the Registration Statement or the
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Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(l) Each preliminary 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 Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) Each of ABN AMRO Incorporated, ABN AMRO Rothschild LLC, and ABN
AMRO Financial Services, Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member
of the New York Stock Exchange, Inc. and the National Association of
Securities Dealers, Inc.
(n) Each of the Bank and Holding is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended.
(o) [Each of the Bank and Holding has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.]*
2. Agreements to Sell and Purchase. The Bank and Holding hereby agree to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the Bank
the respective principal amounts of Securities set forth in Schedule I hereto
opposite its name at _____% of their principal amount (the "Purchase Price")
plus accrued interest, if any, from ___________, 2000 to the date of payment and
delivery.
3. Terms of Public Offering. The Bank and Holding are advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Securities as soon after this Agreement has been entered into as in your
judgment is advisable. The terms of the public offering of the securities are
set forth in the Prospectus.
4. Payment and Delivery. Payment for the Securities shall be made by wire
or other immediately available funds to the order of the Bank at 10:00 A.M.,
local time, on ____________, 2000, or at such other time on the same or
____________________
* Include if securities are not listed.
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such other date, not later than ___________, 2000, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "Closing Date."
Payment for the Securities shall be made against delivery to you for
the respective accounts of the several Underwriters of the one or more global
certificates representing the Securities registered in the name of Cede & Co.
with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid. Such certificates shall be made
available to the Representatives at the offices of the Depository Trust Company,
New York, New York, for inspection and packaging not later than at least 24
hours prior to the Closing Date."
Delivery on the Closing Date of any Underwriters' Securities that are
(i) Securities in bearer form shall be effected by delivery of a single
temporary global Security without coupons (the "Global Security") evidencing the
Securities that are Securities in bearer form to a common depositary for [ ],
Brussels office, as operator of the Euroclear System ("Euroclear"), and for
Clearstream Banking S.A. ("Clearstream") for credit to the respective accounts
at Euroclear or Clearstream of each Underwriter or to such other accounts as
such Underwriter may direct. Any Global Security shall be delivered to you not
later than the Closing Date, against payment of funds to the Bank in the net
amount due to the Bank for such Global Security, by the method and in the form
set forth in the Underwriting Agreement. The Bank shall cause definitive
Securities in bearer form to be prepared and delivered in exchange for such
Global Security in such manner and at such time as may be provided in or
pursuant to the Indenture; provided, however, that the Global Security shall be
exchangeable for definitive Securities in bearer form only on or after the date
specified for such purpose in the Prospectus.
5. Conditions to the Underwriters' Obligations. The several obligations of
the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Bank's or
Holding's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
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(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Bank and
its subsidiaries, taken as a whole, or Holding and its subsidiaries,
taken as a whole, from that set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Securities on
the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date:
(i) a certificate, dated the Closing Date and signed by an
executive officer of the Bank, to the effect set forth in clause
(a)(i) above and to the effect that the representations and warranties
of the Bank contained in this Agreement are true and correct as of the
Closing Date and that the Bank has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
(ii) a certificate, dated the Closing Date and signed by an
executive officer of Holding, to the effect set forth in clause (a)(i)
above and to the effect that the representations and warranties of
Holding contained in this Agreement are true and correct as of the
Closing Date and that Holding has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date:
(i) an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, outside counsel for the
Bank and Holding, dated the Closing Date, to the effect that:
(A) each of ABN AMRO Incorporated and [list U.S.
subsidiaries of the Bank and Holding] (each a "U.S. Material
Subsidiary"), is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has the power and
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authority (corporate and other) to own its property and to
conduct its business as described in the Prospectus, as amended
or supplemented, and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, 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 Bank and its consolidated subsidiaries,
taken as a whole;
(B) each of the Bank, Holding, ABN AMRO Incorporated and the
U.S. Material Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all
U.S., federal, state, local and other governmental authorities,
all U.S. self-regulatory organizations and all U.S. courts and
other tribunals, to own, lease, license and use its properties
and assets and to conduct its business in the manner described in
the Prospectus, as amended or supplemented, except to the extent
that the failure to obtain or file would not have a material
adverse effect on the Bank and its consolidated subsidiaries,
taken as a whole;
(C) the Indenture has been duly qualified under the Trust
Indenture Act and assuming that it has been duly authorized,
executed and delivered by the Bank, it is a valid and binding
agreement of the Bank and Holding, enforceable in accordance with
its terms except as the enforceability thereof (i) may be limited
by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(D) (1) assuming the forms of Notes have been duly
authorized by the Bank as a matter of Dutch law, the forms of
Notes have been duly authorized and established in conformity
with the provisions of the Indenture and, if the Notes had been
executed by the Bank and authenticated by the relevant Trustee or
its duly appointed agent in accordance with the provisions of the
Indenture and delivered to and duly paid for by the
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purchasers thereof on the date of such opinion, the Notes would
be entitled to the benefits of the Indenture and would be valid
and binding obligations of the Bank, enforceable in accordance
with their respective terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability
is considered at a proceeding in equity or at law;
(2) assuming the forms of Guarantees have been duly
authorized by Holding as a matter of Dutch law, the forms of
Guarantees have been duly authorized and established in
conformity with the provisions of the Indenture and, if the
Guarantees had been executed by Holding and authenticated by the
relevant Trustee or its duly appointed agent in accordance with
the provisions of the Indenture and delivered to and duly paid
for by the purchasers thereof on the date of such opinion, the
Guarantees would be entitled to the benefits of the Indenture and
would be valid and binding obligations of Holding, enforceable in
accordance with their respective terms except as the
enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether
such enforceability is considered at a proceeding in equity or at
law;
(E) (1) the execution and delivery by the Bank of the Notes,
the Indenture and this Agreement and the performance by the Bank
of its obligations under such agreements will not contravene any
provision of applicable U.S. federal or New York State law or, to
the best of such counsel's knowledge, any agreement or other
instrument binding upon the Bank or any of its consolidated
subsidiaries that is material to the Bank and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any U.S. governmental
body, agency or court having jurisdiction over the Bank or any of
its consolidated subsidiaries, and no consent, approval,
authorization or order of or qualification with any U.S.
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governmental body or agency is required for the performance by
the Bank of its obligations under this Agreement, the Notes and
the Indenture, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the
offer and sale of the Notes; provided, however, that no opinion
is expressed on whether the purchase of the Notes constitutes a
"prohibited transaction" under Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended;
(2) the execution and delivery by Holding of the Guarantees,
the Indenture and this Agreement and the performance by Holding
of its obligations under such agreements will not contravene any
provision of applicable U.S. federal or New York State law or, to
the best of such counsel's knowledge, any agreement or other
instrument binding upon Holding or any of its consolidated
subsidiaries that is material to Holding and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any U.S. governmental
body, agency or court having jurisdiction over Holding or any of
its consolidated subsidiaries, and no consent, approval,
authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by
Holding of its obligations under this Agreement, the Guarantees
and the Indenture, except such as may be required by the
securities or Blue Sky laws of the various states in connection
with the offer and sale of the Guarantees; provided, however,
that no opinion is expressed on whether the purchase of the
Guarantees constitutes a "prohibited transaction" under Section
406 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended;
(F) the statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement) and "Description of Debt Securities" (in
the Basic Prospectus), in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the
10
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(G) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Bank or any of its consolidated subsidiaries, or Holding or
any of its consolidated subsidiaries, is a party or to which any
of the properties of the Bank or any of its consolidated
subsidiaries, or Holding or any of its consolidated subsidiaries
is subject that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, and
are not so described or of any foreign, U.S. federal or state
statutes, regulations, contracts or other documents governed by
foreign, U.S. federal or state law that are required to be
described in the Registration Statement or the Prospectus, as
then amended or supplemented, or to be filed or incorporated by
reference as exhibits to such Registration Statement that are not
described, filed or incorporated by reference as required;
(H) such counsel (1) has no reason to believe that any part
of the Registration Statement (except as to financial statements
and schedules and other financial and statistical data as to
which such counsel need not express any belief and except for
that part of the Registration Statement that constitutes the Form
T-1 heretofore referred to), as then amended, if applicable, when
such part became effective contained, and the Registration
Statement (except as to financial statements and schedules and
other financial and statistical data included therein, as to
which such counsel need not express any belief and except for the
part of the Registration Statement that constitutes the Form T-1)
as of the date such opinion is delivered, contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, (2) believes that the
Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules and other financial and statistical data included
therein as to which such counsel need not express any opinion),
complied as to form in all
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material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (3) has no
reason to believe that the Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules and other financial and statistical data as to which
such counsel need not express any belief), as of the date such
opinion is delivered contains any untrue statement of a material
fact 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.
(ii) The opinion, dated as of such date, of ▇▇▇▇▇▇▇▇
Chance Limited Liability Partnership, special Dutch counsel
to the Bank and Holding, or of other counsel satisfactory to
you and who may be an officer of the Bank and Holding, to
the effect that:
(A) the Bank is: (i) registered as a public limited
liability company with limited liability (naamloze vennootschap),
(ii) duly incorporated on [ ] and (ii) validly existing under the
laws of The Netherlands. The Bank has:
(1) corporate power and corporate capacity to execute
and deliver the Indenture, the Notes and this Agreement,
authorize the distribution of the Prospectus on its behalf,
undertake and perform the obligations expressed to be
assumed by it in the Indenture, the Notes and this Agreement
(including the issue of the Notes) and own its properties
and conduct its businesses as described in the Prospectus as
amended or supplemented; and
(2) taken all internal corporate action required by the
Articles of Association and by Dutch corporate law to
authorize the form of the Notes and to authorize, execute
and deliver the Indenture and this Agreement and such
documents have been duly authorized, executed and delivered.
(B) Holding is: (i) registered as a public limited liability
company with limited liability (naamloze vennootschap), (ii) duly
incorporated on [ ] and (ii)
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validly existing under the laws of The Netherlands. Holding has:
(1) corporate power and corporate capacity to execute
and deliver the Indenture and this Agreement, authorize the
distribution of the Prospectus on its behalf, undertake and
perform the obligations expressed to be assumed by it in the
Indenture and this Agreement (including the issue of the
Guarantees) and own its properties and conduct its
businesses as described in the Prospectus as amended or
supplemented; and
(2) taken all internal corporate action required by the
Articles of Association and by Dutch corporate law to,
execute and deliver the Indenture and this Agreement and
such documents have been duly authorized, executed and
delivered.
(C) each of [list foreign subsidiaries of the Bank and
Holding] (each a "Foreign Material Subsidiary") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has the power and authority (corporate and other) to own its
property and conduct its business as described in the Prospectus,
as amended or supplemented, and is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, 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 Bank and its consolidated
subsidiaries, taken as a whole, or Holding and its consolidated
subsidiaries, taken as a whole, as the case may be;
(D) each of the Bank, Holding and the Foreign Material
Subsidiaries has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all Dutch governmental
authorities, all Dutch self-regulatory organizations and all
Dutch courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the
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manner described in the Prospectus, as amended or supplemented,
except to the extent that the failure to obtain or file would not
have a material adverse effect on the Bank and its consolidated
subsidiaries, taken as a whole, or Holding and its consolidated
subsidiaries, taken as a whole, as the case may be;
(E) no authorisations, licences, approvals, orders or
consents, registrations, recordations or filings with any court,
governmental authority, bureau, official agency or body in The
Netherlands are required under the laws and regulations of The
Netherlands for (or in connection with):
(1) the creation, issue and offering of the Notes in or
from The Netherlands; or
(2) the distribution by or on behalf of the Bank and
Holding of the Prospectus; or
(3) the execution and delivery by the Bank of the
Indenture, the Notes and this Agreement and by Holding of
the Indenture and this Agreement and the performance of
their respective obligations thereunder; or
(4) the payment by each of the Bank, or Holding, as the
case may be, when due, of all sums which it may be liable to
pay in respect of the Notes or under the Indenture or this
Agreement in the currency in which they are stated to be
payable.
In themselves, none of the matters referred to in (D)(1) through
(D)(4) above, conflicts or will conflict with or result in a
breach of any provision of (or constitute a breach of or default
under):
(1)the Articles of Association;
(2) any law or generally applicable regulation of The
Netherlands to which the Bank or Holding is subject; or
(3) to the best of such counsel's knowledge, any
judgment, order or decree of any
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Dutch governmental body, agency or court having jurisdiction
over the Bank or any of its consolidated subsidiaries or
Holding or any of its consolidated subsidiaries.
which would make the Indenture and this Agreement, or parts
thereof, or the Notes null and void or subject to avoidance or
nullification in The Netherlands.
(F) the statements in the Registration Statement, as then
amended or supplemented, under Item 15, insofar as such
statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein.
(G) the agreement of the Bank and Holding that the
Indenture, the Notes, the Guarantees and this Agreement shall be
governed by and construed in accordance with the laws of the
State of New York is legal, valid and binding, and the courts of
The Netherlands will observe and give effect to the choice of the
laws of the State of New York as the law governing such documents
in any proceedings in relation to such documents, but when
applying the laws of the State of New York as the law governing
such documents, the courts of competent jurisdiction of The
Netherlands, if any, by virtue of the 1980 Rome Convention on the
Law Applicable to Contractual Obligations (the "Rome
Convention"):
(1) may give effect to the mandatory rules of law of
another country with which the situation has a close
connection, if and insofar as, under the law of the latter
country, those rules must be applied whatever the law
applicable to such documents (a limitation on the chosen law
arising under article 7 (1) of the Rome Convention);
(2) will apply the law of The Netherlands in a
situation where it is mandatory irrespective of the law
otherwise applicable to such documents (a limitation on the
chosen laws arising under article 7 (2) of the Rome
Convention);
15
(3) may refuse to apply the laws of the State of New
York if such application is manifestly incompatible with the
public policy of The Netherlands (a limitation on the chosen
laws arising under article 16 of the Rome Convention); and
(4) shall have regard to the law of the country in
which performance takes place in relation to the manner of
performance and the steps to be taken in the event of
defective performance (article 10(2) of the Rome
Convention).
(H) the submission by the Bank and Holding to the exclusive
jurisdiction of the courts in New York in respect of any
proceedings arising out of or in relation to the Indenture, the
Notes, the Guarantees and this Agreement is valid and legally
binding upon the Bank and Holding. Nevertheless, the president of
a competent District Court (Arrondissementsrechtbank) in The
Netherlands, in any matter where the plaintiff seeks provisional
measures in summary proceedings (kort geding) or levy a
prejudgment attachment, may assume jurisdiction notwithstanding a
contractual submission to jurisdiction; the waiver by the Bank
and Holding of any objection to the venue of a proceeding of a
New York Court is legal, valid and binding.
(I) when the Notes have been validly executed on behalf of
the Bank and, authenticated, delivered and paid for in accordance
with the terms of this Agreement, they will constitute valid and
legally binding obligations of the Bank enforceable in accordance
with their respective terms. Each of the Indenture and this
Agreement constitutes the valid and legally binding obligation of
the Bank, enforceable in accordance with their respective terms.
(J) when the Notes have been validly on behalf of the Bank
and delivered and paid for in accordance with the terms of this
Agreement, the Guarantees will constitute valid and legally
bindingobligations of Holding enforceable in accordance with
their respective terms. Each of the Indenture and this Agreement
constitutes the valid and legally binding
16
obligation of Holding, enforceable in accordance with their
respective terms.
(iii) The opinion, dated as of such date, of [ ],
counsel for the Underwriters, covering the matters in
subparagraphs (ii)(D) and (ii)(E) and (ii)(G) (with respect
to statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement) and "Description of Debt
Securities" (in the Basic Prospectus).
With respect to subparagraph (H) of paragraph (c)(i)
above, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may state that their opinion
and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and
any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents
incorporated therein by reference), but are without
independent check or verification, except as specified.
The opinions of ▇▇▇▇▇▇▇▇ Chance Limited Liability
Partnership and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ described in paragraph
(c)(i) and (ii) above shall be rendered to you at the
request of the Bank and Holding, as the case may be, and
shall so state therein.
(d) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriters, from Ernst & Young Accountants, independent
public accountants, 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.
6. Covenants of the Bank and Holding. In further consideration of the
agreements of the Underwriters herein contained, the Bank and Holding
covenant with each Underwriter as follows:
(a) To furnish to you, without charge, [ ] signed copies of the
Registration Statement (including exhibits thereto) and for delivery
to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
17
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Bank
and Holding) to which Securities may have been sold by you on behalf
of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request.
(e) To make generally available to the Bank's security holders
and to you as soon as practicable an earning statement covering the
twelve-month period beginning [ ], which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(f) During the period beginning on the date hereof and continuing
to and including the Closing Date, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Bank or
Holding or warrants to purchase securities of the Bank or Holding
substantially similar to the Securities (other than (i) the Securities
and (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of ABN AMRO Incorporated.
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all
amendments and
18
supplements thereto; (ii) the preparation, issuance and delivery of
the Securities; (iii) the fees and disbursements of the Bank's and
Holding's counsel and accountants and of the Trustee and its counsel;
(iv) the qualification of the Securities under state securities or
Blue Sky laws in accordance with the provisions of Section 6(d),
including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda; (v) the
printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments
thereto and of each preliminary prospectus and the Prospectus and any
amendments or supplements thereto; (vi) the printing and delivery to
the Underwriters of copies of any Blue Sky or Legal Investment
Memoranda; (vii) any fees charged by rating agencies for the rating of
the Securities; (viii) the filing fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities
Dealers, Inc. made in connection with the offering of the Securities;
and (ix) any expenses incurred by the Bank and Holding in connection
with a "road show" presentation to potential investors.
7. Covenants of the Underwriters. (a) Each of the several Underwriters
represents and agrees with the Bank and Holding that:
(i) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (A) it has not offered or sold,
and during the restricted period will not offer or sell, Securities in
bearer form (including any Security in global form that is
exchangeable for Securities in bearer form) to a person who is within
the United States or its possessions or to a United States person and
(B) it has not delivered and will not deliver within the United States
or its possessions definitive Securities in bearer form that are sold
during the restricted period;
(ii) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Securities in bearer form
are aware that such Securities may not be offered or sold during the
restricted period to a person who is within the United States or its
possessions or to a United States person, except as permitted by the D
Rules;
(iii) if it is a United States person, it is acquiring the
Securities in bearer form for purposes of resale in connection with
their original issuance and if it retains Securities in bearer form
for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
19
(iv) if it transfers to any affiliate Securities in bearer form
for the purpose of offering or selling such Securities during the
restricted period, it will either (A) obtain from such affiliate for
the benefit of the Bank and Holding the representations and agreements
contained in Sections 7(a)(i), 7(a)(ii) and 7(a)(iii) or (B) repeat
and confirm the representations and agreements contained in Sections
7(a)(i), 7(a)(ii) and 7(a)(iii) on such affiliate's behalf and obtain
from such affiliate the authority to so obligate it;
(v) it will obtain for the benefit of the Bank and Holding the
representations and agreements contained in Sections 7(a)(i),
7(a)(ii), 7(a)(iii) and 7(a)(iv) from any person other than its
affiliate with whom it enters into a written contract, as defined in
U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(4), for the offer or sale
during the restricted period of Securities in bearer form;
(vi) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Securities may be
offered, sold, resold or delivered;
(vii) terms used in this Section 7 have the meaning given to them
by the U.S. Internal Revenue Code of 1986, as amended, and regulations
thereunder, including the D Rules. The restricted period is defined at
U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(7); and
(viii) until the date on which the Securities Board of The
Netherlands (Stichting Toezicht Effectenerkeer) shall have granted a
dispensation on the offering of the securities pursuant to the
Registration Statement (the "Dispensation Date"):
(a) it has not offered, transferred or sold and will not offer,
transfer or sell any Securities (including rights representing an
interest in a Security in global form), directly or indirectly,
as part of their initial distribution or at any time thereafter,
to any persons (including legal entities) established, domiciled,
incorporated or having their usual residence in The Netherlands
("Dutch Residents");
(b) it has not addressed and will not address any announcement of
a forthcoming offer of Securities, to or for the benefit of Dutch
Residents;
20
(c) it will mention in all offers, offer notices, publications
and other documents in which it makes an offer of Securities, or
announces a forthcoming offer thereof, that such Securities may
not be offered, transferred to sold as part of their initial
distribution or at any time thereafter to or for the benefit of
Dutch Residents;
(d) any offer of Securities made by it and any offer notices,
publications, advertisements and other documents in which it makes an
offer of Securities, or announces a forthcoming offer thereof complies
with and will comply with all applicable laws and regulations of the
jurisdictions in which such offer, announcement or publication is made
or such notices or documents are distributed from time to time; and
(e) it will mention the same in such offers, offer notices,
publications and other documents.
8. Indemnity and Contribution.
(a) The Bank and Holding, jointly and severally, agree to indemnify
and hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling person in
connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Bank or Holding shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission
or alleged untrue statement or omission based upon information relating to
any Underwriter furnished to the Bank or Holding in writing by such
Underwriter through you expressly for use therein, provided, however, that
the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Bank or Holding shall
have furnished any
21
amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Bank with section 8(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Bank and Holding, the directors of the Bank and
Holding, the officers of the Bank and Holding who sign the Registration
Statement and each person, if any, who controls the Bank or Holding within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Bank
and Holding to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Bank or Holding in writing by
such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either paragraph (a) or (b) of this Section 8, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be
20
designated in writing by ABN AMRO Incorporated, in the case of parties
indemnified pursuant to paragraph (a) above and by the Bank and Holding, in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing 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 as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Bank and
Holding on the one hand and the Underwriters on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Bank and Holding on the one
hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Bank and Holding and Holding on the one
hand and the Underwriters on the other hand in connection with the offering
of the Securities shall be deemed to be in the same respective
23
proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Bank and Holding and the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate Public Offering Price of the Securities. The relative fault
of the Bank and Holding on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Bank and Holding or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in
proportion to the respective principal amounts of Securities they have
purchased hereunder, and not joint.
(e) The Bank and Holding and the Underwriters agree that it would not
be just or 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 that does
not take account of the equitable considerations referred to in paragraph
(d) of this Section 8. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Bank and Holding contained in this Agreement shall remain operative and in
full force and effect regardless of (a) any termination of this Agreement,
(b) any investigation made by or on behalf of any Underwriter or any
24
person controlling any Underwriter or by or on behalf of the Bank or
Holding, their officers or directors or any person controlling the Bank or
Holding and (c) acceptance of and payment for any of the Securities.
9. Termination. This Agreement shall be subject to termination by notice
given by you to the Bank and Holding, if (1) after the execution and delivery of
this Agreement and prior to the Closing Date (a) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (b) trading of any securities
of the Bank or Holding shall have been suspended on any exchange or in any
over-the-counter market, (c) a general moratorium on commercial banking
activities in New York or in Chicago shall have been declared by either Federal,
New York or Illinois State authorities or (d) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (2) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in your judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus. Notice of such cancellation shall be given to
the Bank and Holding by telecopy or telephone but shall be subsequently
confirmed by letter.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto. If, on
the Closing Date, any one or more of the Underwriters shall fail or refuse to
purchase Securities that it has or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Securities set forth
opposite their respective names in Schedule I bears to the principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as you may specify, to purchase the Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the principal amount
of Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Bank and Holding for the purchase of
such Securities are not made within 36
25
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Bank or Holding. In any such
case either you or the Bank and Holding shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Bank or Holding to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Bank shall be unable to perform its obligations under this
Agreement, the Bank will reimburse the Underwriters or such Underwriters as have
so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
Any notice under this Section 10 may be made by telecopy or telephone but
shall be subsequently confirmed by letter.
11. Notices. Except as otherwise provided in Sections 9 and 10 hereof,
notice given pursuant to any of the provisions of this Agreement shall be in
writing and shall be delivered (a) if to the Bank, at the office of the Bank at
_____________________________, Attention: ______________________, with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or (b) if to Holding, at the office of Holding at
_____________________________, Attention: ______________________, with a copy to
M ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or (c) if to the Representatives, at the offices of ABN
AMRO Incorporated, 1325 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: [Fixed Income Origination], ______________________ with a
copy to ______________________ or in any case to such other address as the
person to be notified may have requested in writing.
12. Successors. The Agreement is made solely for the benefit of the several
Underwriters, the Bank, Holding, their directors and officers and other
controlling persons referred to in Section 8 hereof, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as used
in this Agreement shall not include a purchaser from any of the several
Underwriters of any of the Securities in his status as such purchaser.
26
13. Partial Unenforceability. In any section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other
section, paragraph or provision hereof.
14. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
16. Submission to Jurisdiction. The Bank and Holding agree that any legal
suit, action or proceeding brought by any Underwriter or by any person
controlling any Underwriter, arising out of or based upon this Agreement may be
instituted in any State or Federal court in the Borough of Manhattan, City and
State of New York, and, to the fullest extent permitted by law, waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the jurisdiction of such court in any
suit, action or proceeding. The Bank and Holding have appointed ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇., Esq., Chief Legal Officer and Executive Vice President, ABN AMRO
North America, Inc., as its authorized agent (the "Authorized Agent") upon which
process may be instituted in any State or Federal court in the Borough of
Manhattan, City and State of New York by any Underwriter and the Bank expressly
accepts the jurisdiction of any such court in respect of such action. Such
appointment shall be irrevocable unless and until a successor authorized agent,
located or with an office in the Borough of Manhattan, City and State of New
York, shall have been appointed by the Bank and such appointment shall have been
accepted by such successor authorized agent. The Bank and Holding represent and
warrant that the Authorized Agent has agreed to act as said agent for service of
process, and the Bank and Holding agree to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent and written notice of such service to the Bank
and Holding shall be deemed, in every respect, effective service of process upon
the Bank and Holding.
17. Judgment Currency. The Bank and Holding, on the one hand, and the
Underwriters severally, on the other hand, agree, to indemnify the other against
loss incurred as a result of any judgment or order being given or made for any
amount due hereunder or under the Notes and such judgment or order being
expressed and paid in a currency (the "Judgment Currency") other than United
States dollars and as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such
27
indemnified party would have been able to purchase United States dollars with
the amount of the Judgment Currency actually received by it if such indemnified
party had utilized such amount of Judgment Currency to purchase United States
dollars as promptly as practicable upon receipt thereof. The foregoing indemnity
shall constitute a separate and independent obligation of the Bank, Holding and
the Underwriters and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
an allowance for any customary or reasonable premiums and costs of exchange
payable in connection with the purchase of, or conversion into, the relevant
currency.
18. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
28
Please confirm that the foregoing correctly sets forth the agreement among the
Bank, Holding and the several Underwriters.
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:
30
Accepted as of the date hereof
ABN AMRO Incorporated
Acting severally on behalf
of themselves and the
several Underwriters named
herein.
By ABN AMRO Incorporated
By:
--------------------------
Name:
Title:
ABN AMRO BANK N.V.
ABN AMRO HOLDING N.V.
SCHEDULE I
Underwriters
------------
Principal Amount
of Securities To
Names Be Purchased
----- -----------------
ABN AMRO Incorporated.......................................
[NAMES OF OTHER CO-MANAGERS]................................
[NAMES OF OTHER UNDERWRITERS]...............................
[NAMES OF OTHER UNDERWRITERS]...............................
[NAMES OF OTHER UNDERWRITERS]..............................
[NAMES OF OTHER UNDERWRITERS]..............................
[NAMES OF OTHER UNDERWRITERS]..............................
[NAMES OF OTHER UNDERWRITERS]..............................
[NAMES OF OTHER UNDERWRITERS]..............................
[NAMES OF OTHER UNDERWRITERS]..............................
Total.....................................
31