ABN AMRO BANK N.V. ABN AMRO HOLDING N.V. ABN NotesSM U.S. DISTRIBUTION AGREEMENT
Exhibit
1.1
ABN AMRO
BANK N.V.
ABN AMRO
HOLDING N.V.
ABN
NotesSM
September
29, 2006
|
|
To
the Agents listed on the
|
|
|
signature
pages hereof
|
Dear Sirs
and Mesdames:
ABN AMRO
Bank N.V., a public limited liability company incorporated under the laws of The
Netherlands (the “Bank”), and ABN AMRO Holding
N.V., a public limited liability company incorporated under the laws of The
Netherlands (“Holding”)
confirm their agreement with the Agents with respect to the issue and sale from
time to time by the Bank, (each, an “offering”) of up to
$7,500,000,000 (or the equivalent thereof in one or more foreign currencies)
aggregate initial public offering price of its senior notes (the “Notes”), subject to reduction
as a result of the sale by the Bank of any other debt securities sold pursuant
to Registration Statement Nos. 333-137691 and ▇▇▇-▇▇▇▇▇▇-▇▇.
The Notes
will be entitled to the benefit of a full and unconditional guarantee (the
“Guarantee”) by Holding
as set forth in the Indenture, as defined below, pursuant to which Holding will
guarantee the obligations of the Bank under the Notes.
The Notes
will be issued as senior indebtedness of the Bank pursuant to the provisions of
an indenture dated as of September 15, 2006 (as may be supplemented or amended
from time to time, the “Indenture”) among the Bank,
Holding, Citibank N.A., as securities administrator (the “Securities Administrator”) and
Wilmington Trust Company, as trustee (the “Trustee”).
The Notes
will have the maturities, interest rates, and other terms as set forth in
supplements to the Base Prospectus referred to below.
For each
offering of the Notes, the Bank and Holding will appoint, pursuant to a Selling
Agency Invitation (substantially in the form of Exhibit A), some or all of the
Agents as their exclusive selling agents for the purposes of soliciting and
receiving offers to purchase Notes by others. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, you agree, upon such appointment, to use reasonable
efforts to solicit and receive offers to purchase Notes upon terms acceptable to
the Bank at such times and in such amounts as the Bank shall from time to time
specify. In addition, you may also purchase Notes as principal pursuant to the
terms of a terms agreement relating to such sale (a “Terms Agreement”) in
accordance with the provisions of Section 3(b)
hereof.
The Bank,
Holding and LaSalle Funding LLC have filed on September 29, 2006 with the
Securities and Exchange Commission (the “Commission”) a registration
statement, including a prospectus, relating to the Notes and the Guarantee that
became automatically effective under the Securities Act of 1933, as amended (the
“Securities Act”). Such
registration statement, including the exhibits thereto, as amended, is
hereinafter referred to as the “Registration Statement”. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the “Base
Prospectus.” The Bank and Holding have filed with the
commission pursuant to Rule 424 under the Securities Act, a supplement to the
Base Prospectus dated September 29, 2006 that describes certain terms of the
Notes and Guarantee, which is hereinafter referred to as the “ABN Notes Prospectus
Supplement.” The Bank and Holding propose to file with the
Commission from time to time, pursuant to Rule 424 under the Securities Act of
1933, as amended (the “Securities Act”), further
supplements to the Base Prospectus that will describe specific terms of the
Notes. The term “Preliminary
Prospectus” means the Base Prospectus, together with the ABN Notes
Prospectus Supplement and any preliminary pricing supplement specifically
relating to a particular offering of Notes and the Guarantee as filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the
Securities Act. The term “Prospectus” means the Base
Prospectus together with the ABN Notes Prospectus Supplement and the final
pricing supplement or supplements specifically relating to a particular offering
of Notes and the Guarantee, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms “Base Prospectus,” “ABN Notes Prospectus
Supplement,” “Preliminary Prospectus,”
“Time of Sale
Information” (as defined below) and “Prospectus” shall include in
each case the documents, if any, incorporated by reference therein.
The term
“free writing
prospectus” has the meaning set forth in Rule 405 under the Securities
Act and the term “Permitted
Free Writing Prospectus” means (i) a free writing prospectus that has
been prepared by ABN AMRO Incorporated and approved by the Bank and filed with
the Commission in accordance with Rule 433(d) of the Securities Act (including a
free writing
2
prospectus
containing solely a description of the final terms of the Notes and Guarantee)
or (ii) a free writing prospectus containing solely a description of terms of
the Securities that (a) does not reflect the final terms, (b) is exempt from the
filing requirement pursuant to Rule 433(d)(5)(i) and (c) is prepared by ABN AMRO
Incorporated. “Time of Sale
Information” in connection with an offering means the Preliminary
Prospectus together with each Permitted Free Writing Prospectus, if any. “Time of Sale” as used herein
shall occur when the Time of Sale Information shall be made available to the
Agents for electronic delivery to purchasers. The terms “supplement,” “amendment” and “amend” as used herein shall
include all documents deemed to be incorporated by reference that are filed
subsequent to the date of the Base Prospectus by the Bank and Holding with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”).
1. Representations and Warranties of
the Bank and Holding. Each of the Bank and Holding represent and warrant
to and agree with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Notes following receipt of a Selling Agency
Invitation, as of each date on which the Bank accepts an offer to purchase Notes
(including any purchase by you as principal pursuant to a Terms Agreement) and
as of each date the Bank issues and delivers Notes, as follows:
(a) (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 (1) the representations and warranties set forth in this Section
1(a) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to you furnished to
Holding or the Bank in writing by 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
3
Trustee
and (2) the representations and warranties set forth in clauses (ii), (iii) and
(iv) above, when made as of the Commencement Date or as of any date on which you
solicit offers to purchase Notes or on which the Bank accepts an offer to
purchase Notes, shall be deemed not to cover information concerning an offering
of particular Notes to the extent such information will be set forth in a
supplement to the Base Prospectus (other than the ABN Notes Prospectus
Supplement).
(b) The
Time of Sale Information immediately prior to the time of each sale of the Notes
in connection with an offering, as then amended or supplemented, 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 forth in this paragraph do not apply to statements or omissions
in the Time of Sale Information based upon information relating to any Agent
furnished to the Bank or Holding in writing by such Agent through you expressly
for use therein.
(c) Neither
the Bank nor Holding are an “ineligible issuer” in connection with the offering
of Notes pursuant to Rules 164, 405 and 433 under the Securities Act. Any free
writing prospectus that the Bank and Holding are required to file pursuant to
Rule 433(d) under the Securities Act will be filed with the Commission in
accordance with the requirements of the Securities Act and the applicable rules
and regulations of the Commission thereunder. Each free writing prospectus that
the Bank and Holding are required to file pursuant to Rule 433(d) under the
Securities Act will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder. Except for Permitted Free Writing Prospectuses, the Bank and Holding
have not prepared, used or referred to, and will not, without the prior consent
of ABN AMRO Incorporated, prepare, use or refer to, any free writing
prospectus.
(d) The
Bank and Holding have been duly created and are validly existing as public
limited liability companies incorporated under the laws of The Netherlands and
have the power and authority (corporate and other) to own their properties and
conduct their businesses as described in the Time of Sale
Information.
(e) 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 Time of Sale Information
4
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 qualification, except to the extent that the failure to be so qualified
or be in good standing or the failure to have such power and authority would not
have a material adverse effect on the Bank, Holding and their subsidiaries,
taken as a whole.
(f) Each
of this Agreement and any applicable Written Terms Agreement (as hereinafter
defined) has been duly authorized, executed and delivered by the Bank and
Holding.
(g) The
Indenture has been duly qualified under the Trust Indenture Act and has been
duly authorized, executed and delivered by each of the Bank and Holding and is a
valid and binding agreement of each 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.
(h) The
forms of Notes and Guarantee have been duly authorized and established in
conformity with the provisions of the Indenture and, when the Notes have been
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof, (i) the Notes will
be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Bank and (ii) the Guarantee will be entitled to the benefits
of the Indenture and will be a valid and binding obligation of Holding, each
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.
(i) The
execution and delivery by the Bank and Holding of this Agreement, the Notes, the
Indenture and any applicable Written Terms Agreement, and the performance by the
Bank and Holding of their respective obligations under this Agreement, the
Notes, the Indenture and any applicable Terms Agreement, will not contravene any
provision of applicable law or the articles of association of either the Bank or
Holding or any agreement or other instrument binding upon the Bank or Holding or
any of their subsidiaries that is material to the Bank, Holding and their
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Bank or
5
Holding
or any of their subsidiaries, 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 of their obligations under this Agreement,
the Notes, the Indenture and any applicable Terms Agreement, 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
representation is made or warranty given as to 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.
(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, Holding and any of their
subsidiaries, taken as a whole, from that set forth in the Time of Sale
Information.
(k) There
are no legal or governmental proceedings pending or, to the Bank’s or Holding’s
knowledge, threatened to which the Bank, Holding or any of their subsidiaries is
a party or to which any of the properties of the Bank or Holding or any of their
subsidiaries are subject that are required to be described in the Registration
Statement or the Prospectus and are not so described and there are no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required. The Time of Sale Information contains in all
material respects the same description of the foregoing matters contained in the
Prospectus.
(l)
Each of the Bank, Holding and their respective subsidiaries have all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and have made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use their properties and
assets and to conduct their business in the manner described in the Time of Sale
Information, except to the extent that the failure to obtain or file would not
have a material adverse effect on the Bank, Holding or their subsidiaries, taken
as a whole.
(m) Each
of ABN AMRO Incorporated and LaSalle Financial Services, Inc. is registered as a
broker-dealer with the Commission and the National Association of Securities
Dealers, Inc.
6
(n) Neither
the Bank nor Holding is, and after giving effect to the offering and sale of the
Notes and the application of the proceeds thereof as described in the
Prospectus, will be required to register as, an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
(o) Immediately
after any sale of Notes by the Bank and Holding hereunder or under any Terms
Agreement, the aggregate amount of Notes outstanding at any one time will not
exceed any limitation thereon which may then be in effect by action of the Board
of Directors of the Bank or Holding.
(p) The
Registration Statement has become effective and constitutes an “automatic shelf
registration statement” (as defined in Rule 405 of the Securities Act) filed
within three years of the date hereof; the Registration Statement is not the
subject of a pending proceeding or examination under Section 8(d) or 8(e) of the
Securities Act; no notice of objection of the Commission with respect to the use
of the Registration Statement pursuant to Rule 401(g)(2) under the Securities
Act has been received by the Bank or Holding; and Holding is a “well-known
seasoned issuer” as defined in Rule 405, and neither the Bank nor Holding is an
“ineligible issuer,” as defined in Rule 405 at the “determination dates”
relevant to the offering and sale of Notes under the Registration Statement (as
described in such definition); no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding, to the knowledge of
the Bank or Holding, for that purpose or pursuant to Section 8A of the
Securities Act has been initiated or threatened by the Commission;
(q) Each
of the Bank and Holding hereby acknowledges that the Agents will be acting
pursuant to a contractual relationship on an arm’s length basis and in no event
do the parties intend that the Agents act or be responsible as a fiduciary to
the Bank or Holding, their management, stockholders, creditors or any other
person. Each of the Bank, Holding and the Agents hereby expressly disclaim any
fiduciary relationship and agree they are each responsible for making their own
independent judgments with respect to any transactions entered into between
them.
Notwithstanding
the foregoing, it is understood and agreed that the representations and
warranties set forth in Section 1(a)(ii), (iii) and (iv), 1(b), 1(h)
(except as to due authorization of the Notes and the Guarantee) and 1(i), when
made as of the Commencement Date, or as of any date on which you solicit offers
to purchase Notes, with respect to any Notes the payments of principal or
interest on which, or any other payments with respect to which, will be
determined by reference to one or more currency exchange rates,
commodity
7
prices,
securities of entities unaffiliated with either the Bank or Holding, baskets of
such securities, equity indices or other factors, shall be deemed not to address
the application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading
Commission.
2. Representations and Warranties of
Agents. Each of the Agents represents and warrants to and agrees with the
Bank and Holding, as of each date on which you solicit offers to purchase Notes
following receipt of a Selling Agency Invitation, as of each date on which the
Bank accepts an offer to purchase Notes (including any purchase by you as
principal pursuant to a Terms Agreement) and as of each date the Bank issues and
delivers Notes:
(a) You
represent and warrant that you are actually engaged in the investment banking or
securities business and that you are either (A) a member in good standing of the
NASD or (B) a foreign bank, dealer or institution not eligible for membership in
the NASD and not registered under the Exchange Act (a “non-member foreign dealer”).
If you are a non-member foreign dealer, you agree to comply with Rule 2790 of
the NASD Conduct Rules. In addition, if you are a non-member foreign dealer, you
agree to comply, as though you were a member of the NASD, with the provisions of
NASD Conduct Rules 2730, 2740, 2750 and 2420. You represent and warrant that you
are fully familiar with the above provisions of the Rules. You further
represent, by your participation in any offering of Notes, that you have
provided to the Bank all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to Section (b)(6) of NASD Rule 2710 (the “Financing Rule”) as such
requirements relate to such offering, including, but not limited to information
with respect to (x) any arrangement during the period beginning 180 days
immediately preceding the required filing date of an offering and through the
pricing date (the “Survey
Period”), which arrangement provides for the receipt of any item of value
or the transfer of any warrants, options, or other securities from the Bank or
Holding to you or your related person(s), (y) any acquisitions of unregistered
equity securities of the Bank or Holding by you or your related person(s) during
the Survey Period, or (z) any new arrangement that provides for the receipt of
any additional item of value by you or your related person(s) between the
pricing date of an offering and the date ending 90 days immediately thereafter.
Terms used in clauses (x), (y) and (z) of the previous sentence and not
otherwise defined shall have the respective meanings given to them in the
Financing Rule.
(b) You
agree that, in connection with any purchase or sale of the Notes wherein a
selling concession, discount or other allowance is received or granted, (1) you
will comply with the provisions of Rule 2740
8
of the
Conduct Rules of the NASD and (2) if you are a non-NASD member broker or dealer
in a foreign country, you will also comply (a), as though you were an NASD
member, with the provision of Rules 2730, 2740 and 2750 of the Conduct Rules and
(b) with Rule 2420 of the Conduct Rules as that Rule applies to a non-NASD
member broker or dealer in a foreign country.
(c) You
represent and warrant that you are familiar with the Commission’s guidance on
the use of electronic media to deliver documents under the federal securities
laws (including, but not limited to, Release 33-7856 (May 4, 2000) and Release
33-7233 (October 6, 1995)) and the NASD Notice – to – Members 98-3 (January
1998) concerning delivery of documents by broker dealers through electronic
media. You agree that you will comply therewith in connection with the delivery
of the Time of Sale Information to purchasers of the Notes.
(d) You
represent and warrant, on behalf of yourself and any subsidiary, affiliate, or
agent to be used by you in the context of this Agreement, that you and they have
not relied upon advice from the Bank, Holding or any other Agent or any of their
respective affiliates regarding the suitability of the Notes for any
investor.
(e) You
acknowledge that you are familiar with the requirements of NASD
Notice-to-Members 05-59 concerning NASD members’ obligations when selling
structured products and NASD Notice – to – Members 05-26
recommending best practices for reviewing new products. You agree to comply
therewith in connection with any offering of Securities.
(f) You
agree that in selling Notes you will comply with all applicable laws, rules and
regulations, including the applicable provisions of the Securities Act and the
Exchange Act, the applicable rules and regulations of the Commission thereunder,
the applicable rules and regulations of the NASD and the applicable rules and
regulations of any securities exchange having jurisdiction over the offering of
the Notes, including NASD Rule 2310, New York Stock Exchange Rule 405, NASD
Notice – to – Members 03-71 and any other laws, rules or regulations regarding
suitability or diligence of accounts.
(g) You
represent and warrant, on behalf of yourself and any subsidiary, affiliate, or
agent to be used by you in the context of this Agreement, that you and they
comply and will comply with all applicable rules and regulations of the Office
of Foreign Assets Control of the U.S. Department of the Treasury and all
applicable requirements of the U.S.
9
Bank
Secrecy Act and the USA PATRIOT Act and the rules and regulations promulgated
thereunder.
(h) You
represent and warrant that you are not the subject of a pending proceeding under
Section 8A of the Securities Act in connection with the offering of the
Notes.
(i)
You represent and warrant that you are familiar with Rule 173 under the
Securities Act and agree that you will comply therewith. You agree that you will
not use, authorize use of, refer to, or participate in the planning for use of
any written communication (as defined in Rule 405 under the Securities Act)
concerning the Notes, the Bank or Holding, (including without limitation any
free writing prospectus and any information furnished by the Bank or Holding but
not incorporated by reference into the Preliminary Prospectus or Prospectus)
other than (a) any Preliminary Prospectus or Prospectus or (b) any Permitted
Free Writing Prospectus. You represent that the Time of Sale Information has
been conveyed to each person to whom you sell or deliver Notes prior to entering
into a contract of sale with such person. You agree to make a record of your
distribution of the Time of Sale Information related to each offering of the
Notes. When furnished with copies of any revised Preliminary Prospectus or
Permitted Free Writing Prospectus or a new Permitted Free Writing Prospectus
revising or supplementing the terms of the Preliminary Prospectus or a previous
Permitted Free Writing Prospectus, you will, upon request, promptly forward
copies thereof to each person to whom you have theretofore distributed a
Preliminary Prospectus or Permitted Free Writing Prospectus prior to entering
into any contract of sale with such person.
(j) You
agree that you will not offer or sell the Notes within the European Economic
Area unless (i) you have obtained the Bank’s prior written consent and (ii) you
comply with the selling restrictions set forth in Exhibit D hereto and those
other restrictions as the Bank may inform you of from time to time.
(k) You
represent and warrant that you will not sell Notes to or through any dealer
unless you have received comparable representations and warranties to those set
forth in this Section 2 upon which the Bank and Holding are also entitled to
rely.
10
3. Solicitations as Agents; Purchases
as Principal.
(a) Solicitations as Agents. In
connection with your actions as selling agents upon appointment pursuant to a
Selling Agency Invitation, you agree to use reasonable efforts to solicit offers
to purchase Notes upon the terms and conditions set forth in the Time of Sale
Information as then amended or supplemented.
The Bank
reserves the right, in its sole discretion, to instruct you to suspend at any
time, for any period of time or permanently, the solicitation of offers to
purchase Notes. Upon receipt of at least one business day’s prior notice from
the Bank, you will forthwith suspend solicitations of offers to purchase Notes
from the Bank until such time as the Bank has advised you that such solicitation
may be resumed. While such solicitation is suspended, neither the Bank nor
Holding shall be required to deliver any certificates, opinions or letters in
accordance with Sections 6(a), 6(b) and 6(c); provided, however, that if
the Registration Statement, Prospectus, or ABN Notes Prospectus Supplement is
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for (i) the specific terms of the
Notes, or (ii) for a change you deem to be immaterial), you shall not be
required to resume soliciting offers to purchase Notes until the Bank and
Holding have delivered such certificates, opinions and letters as you may
request.
The Bank
agrees to pay to you, as consideration for the sale of each security resulting
from a solicitation made or an offer to purchase received by you in connection
with an offering in which you were appointed as a selling agent under a Selling
Agency Invitation, a commission in the form of a discount from the purchase
price of such security equal to between 0.5% and 4% (depending upon such Note’s
maturity) of the principal amount of such Note (provided that the commission for
Notes having a maturity of 30 years or greater will be negotiated) or such other
discount as may be specified in the Time of Sale Information or Selling Agency
Invitation relating to such Note.
You shall
communicate to the Bank, orally or in writing, each offer to purchase Notes
received by you as agent that in your judgment should be considered by the Bank.
The Bank shall have the sole right to accept offers to purchase Notes and may
reject any offer in whole or in part. You shall have the right to reject any
offer to purchase Notes that you consider to be unacceptable, and any such
rejection shall not be deemed a breach of your agreements contained herein. The
procedural details relating to the issue and delivery of Notes sold by you as
agent and the payment therefor shall be as set forth in the Administrative
Procedures (as hereinafter defined).
11
(b) Purchases as Principal. Each
sale of Notes to you as principal shall be made in accordance with the terms of
this Agreement. In connection with each such sale, the Bank will enter into a
Terms Agreement that will provide for the sale of such Notes to and the purchase
thereof by you. Each Terms Agreement will take the form of either (i) a written
agreement between you and the Bank, which may be substantially in the form of
Exhibit A hereto (a “Written
Terms Agreement”), or (ii) an oral agreement between you and the Bank
confirmed in writing by you to the Bank.
Your
commitment to purchase Notes as principal pursuant to a Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties of
the Bank and Holding herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall specify the principal
amount of Notes to be purchased by you pursuant thereto, the maturity date of
such Notes, the price to be paid to the Bank for such Notes, the interest rate
and interest rate formula, if any, applicable to such Notes and any other terms
of such Notes. Each such Terms Agreement may also specify any requirements for
officers’ certificates, opinions of counsel and letters from the independent
auditors of the Bank pursuant to Section 6 hereof. A Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes, as the case
may be, by you.
Each
Terms Agreement shall specify the time and place of delivery of and payment for
such Notes, as the case may be. Unless otherwise specified in a Terms Agreement,
the procedural details relating to the issue and delivery of Notes purchased by
you as principal and the payment therefor shall be as set forth in the
Administrative Procedures. Each date of delivery of and payment for Notes to be
purchased by you as principal pursuant to a Terms Agreement, as the case may be,
is referred to herein as a “Settlement Date.”
Unless
otherwise specified in a Terms Agreement, if you are purchasing Notes, as
principal you may resell such Notes to other dealers, at a discount or discounts
such as you may determine provided that each such discount, shall not exceed the
amount set forth in the Time of Sale Information relating to such
Notes.
(c) Administrative Procedures.
You and the Bank agree to perform the respective duties and obligations
specifically provided to be performed in the ABN Notes Administrative Procedures
(attached hereto as Exhibit C) (the “Administrative Procedures”),
as amended from time to time. The Administrative Procedures may be amended only
by written agreement of the Bank and you.
12
(d) Delivery. The documents
required to be delivered by Section 5 of this Agreement as a condition precedent
to your obligation to begin soliciting offers to purchase Notes as agent of the
Bank upon receipt of a Selling Agency Invitation shall be delivered at the
office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, not later than 4:00 p.m., New York time, on
the date hereof, or at such other time and/or place as you and the Bank may
agree upon in writing, but in no event later than the day prior to the earlier
of (i) the date on which you begin soliciting offers to purchase Notes pursuant
to such Offering and (ii) the first date on which the Bank accepts any offer by
you to purchase Notes as principal. The date of delivery of such documents is
referred to herein as the “Commencement
Date.”
4. Agreements. The Bank and
Holding on the one hand, and you on the other hand, agree that:
(a) Prior
to the termination of any offering of the Notes pursuant to any Terms Agreement,
neither the Bank nor Holding will file any pricing supplement or free writing
prospectus relating to the Notes or any amendment to the Registration Statement
unless either the Bank or Holding have previously furnished to you a copy
thereof for your review and will not file any such proposed supplement,
amendment or free writing prospectus to which you reasonably object; provided, however, that the
foregoing requirement shall not apply to any of Holding’s periodic filings with
the Commission required to be filed pursuant to Section 13(a), 13(c), 13(f), 14
or 15(d) of the Exchange Act, copies of which filings the Bank or Holding will
cause to be delivered to you promptly after being transmitted for filing with
the Commission. Subject to the foregoing sentence, the Bank or Holding will
promptly cause each pricing supplement to be filed with or transmitted for
filing to the Commission in accordance with Rule 424(b) under the Securities
Act. The Bank or Holding will promptly advise you (i) of the filing of any
amendment or supplement to the Base Prospectus or ABN Notes Prospectus
Supplement, (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Base
Prospectus or ABN Notes Prospectus Supplement or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (v) of the receipt by the Bank or Holding of
any notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Bank and Holding will use their reasonable best
efforts to prevent the issuance of any such stop order or notice of suspension
of qualification and, if issued, to obtain as soon as practicable the withdrawal
thereof. If the Base
13
Prospectus
or ABN Notes Prospectus Supplement is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, you shall not be obligated to solicit offers to purchase Notes so
long as you are not reasonably satisfied with such document.
(b) If
any event occurs or condition exists as a result of which the Prospectus, as
then amended or supplemented, would include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus, as then amended
or supplemented, is delivered to a purchaser, not misleading, or if, in your
opinion or in the opinion of the Bank or Holding, it is necessary at any time to
amend or supplement the Prospectus, as then amended or supplemented, to comply
with applicable law, the Bank or Holding will immediately notify you by
telephone (with confirmation in writing) to suspend solicitation of offers to
purchase Notes and, if so notified by the Bank or Holding, you shall forthwith
suspend such solicitation and cease using the Prospectus, as then amended or
supplemented. If the Bank or Holding shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, it shall
so advise you promptly by telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, that will correct
such statement or omission or effect such compliance and will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request. If any documents, certificates, opinions and letters
furnished to you pursuant to paragraph (g) below and Sections 6(a), 6(b) and
6(c) in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will resume the
solicitation of offers to purchase Notes hereunder. Notwithstanding any other
provision of this Section 4(b), until the distribution of any Notes you may own
as principal has been completed, if any event described above in this paragraph
(b) occurs, the Bank or Holding will, at their own expense, forthwith prepare
and cause to be filed as soon as practicable with the Commission an amendment or
supplement to the Registration Statement or Prospectus, as then amended or
supplemented, satisfactory in all respects to you, will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably request
and shall furnish to you pursuant to paragraph (g) below and Sections 6(a), 6(b)
and 6(c) such documents, certificates,
14
opinions
and letters as you may request in connection with the preparation and filing of
such amendment or supplement.
(c) If
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Information in order to make the statements
therein, in the light of the circumstances, not misleading, or if, in the
opinion of the Bank or Holding, it is necessary to amend or supplement the Time
of Sale Information to comply with applicable law, forthwith to prepare, file
with the Commission, if necessary, and furnish, at its own expense, to the
Agents and to any dealer upon request, either amendments or supplements to the
Time of Sale Information so that the statements in the Time of Sale Information
as so amended or supplemented will not, in the light of the circumstances when
the Time of Sale Information is delivered to a prospective purchaser, be
misleading or so that the Time of Sale Information, as amended or supplemented,
will comply with law.
(d) Holding
will make generally available to its security holders and to you as soon as
practicable earning statements that satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder
covering twelve month periods beginning, in each case, on the earlier of January
1, or July 1 with respect to each sale of Notes.
(e) The
Bank or Holding will furnish to each Agent, without charge, (i) a signed copy of
the Registration Statement, including exhibits and all amendments thereto, and
as many copies of the Prospectus, the Time of Sale Information and any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and (ii) in connection with any purchase of Notes
pursuant to a Terms Agreement or solicitation of an offer to purchase Notes that
is accepted by the Bank, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of such Terms Agreement or the acceptance of such
offer, as many copies of the Prospectus and the Time of Sale Information as then
amended or supplemented (including the pricing supplement relating to the Notes
to be purchased pursuant to such Terms Agreement or accepted offer), as you may
reasonably request.
(f) The
Bank and Holding will endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to maintain such qualifications for as long as you shall reasonably
request.
15
(g) During
the term of this Agreement, each of the Bank and Holding shall furnish to you
such relevant documents and certificates of officers of the Bank and Holding,
respectively, relating to their business, operations and affairs, the
Registration Statement, the Base Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, the Guarantee, the Administrative Procedures,
any Terms Agreement, and the performance by the Bank and Holding of their
respective obligations hereunder or thereunder as you may from time to time
reasonably request.
(h) The
Bank or Holding shall notify you promptly in writing of any downgrading that
occurs on or following the date hereof, or of its receipt of any notice on or
following the date hereof of any intended or potential downgrading or of any
review for possible change that does not indicate the direction of the possible
change, in the rating accorded the Bank, Holding or any of their securities by
any “nationally recognized
statistical rating organization,” as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(i) The
Bank will, whether or not any sale of Notes is consummated, pay all expenses
incident to the performance of its obligations under this Agreement and any
Terms Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Notes, (iii) the fees and
disbursements of the Bank’s counsel and accountants, of the Trustees
and their counsel, (iv) the qualification of the Notes under securities or Blue
Sky laws in accordance with the provisions of Section 4(f), including filing
fees and the fees and disbursements of your counsel in connection therewith and
in connection with the preparation of any Blue Sky or Legal Investment
Memoranda, (v) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto and of
the Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to you of copies of the Indenture, and any Blue Sky or Legal Investment
Memoranda, (vii) any fees charged by rating agencies for the rating of the
Notes, (viii) the fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc., and (ix) the fees and
disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇.
(j) During
the period beginning on the date of any Terms Agreement and continuing to and
including the Settlement Date with respect to such Terms Agreement, the Bank
will not, without your prior consent, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Bank substantially similar to the Notes
set forth in such Terms Agreement (other than (A) the Notes that are to be sold
pursuant to
16
such
Terms Agreement, (B) Notes previously agreed to be sold by the Bank and (C)
commercial paper issued in the ordinary course of business).
5. Conditions of the Obligations of the
Agents. Your obligation to solicit offers to purchase Notes as agent of
the Bank and Holding in connection with any offering of Notes with respect to
which you have received a Selling Agency Invitation and your obligation to
purchase Notes as principal pursuant to any Terms Agreement will be subject to
the accuracy of the representations and warranties on the part of the Bank and
Holding herein, to the accuracy of the statements of the Bank’s and Holding’s
officers made in each certificate furnished pursuant to the provisions hereof
and to the performance and observance by the Bank and Holding of all covenants
and agreements herein contained on their part to be performed and observed (in
the case of your obligation to solicit offers to purchase Notes, at the time of
such solicitation, and, in the case of your obligation to purchase Notes, at the
time the Bank accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified below:
(a) Prior
to such solicitation or purchase, as the case may be:
(i) 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;
(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, Holding and their subsidiaries, taken as a whole,
from that set forth in the Time of Sale Information that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
market the Notes on the terms and in the manner contemplated by the Time of Sale
Information;
(iii) there
shall not have occurred any of the following: (a) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange or
the Euronext Amsterdam N.V.; (b) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State authorities
or on commercial banking activities in The Netherlands declared by Dutch
authorities; and (c) any outbreak or material escalation of hostilities or other
national or international calamity or crisis the effect of which shall be such
as to make it, in your judgment, impracticable or inadvisable to
17
proceed
with the purchase of the Notes by you on the terms and in the manner
contemplated in the Time of Sale Information; and
(iv) 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 the Bank or Holding or 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;
(A) except,
in each case described in paragraph (i), (ii) or (iii) above, as disclosed to
you in writing by the Bank prior to such solicitation or, in the case of a
purchase of Notes, before the offer to purchase such Notes was made or (B) the
relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Notes, before the offer to
purchase such Notes was made.
(b) On
the Commencement Date, you shall have received:
(i) 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) Each
of the Bank and Holding are: (i) registered as a public limited liability
company (naamloze
vennootschap), (ii) validly existing under the laws of
The Netherlands, and (iii) licensed as a credit institution (kredietinstelling) under the
Act on the Supervision of Credit Institutions (Wet Toezicht Kredietwezen)
(“ASCI”) and registered
as such in the register as referred to in Article 52 of the ASCI. The Bank is
duly incorporated on March 29, 1824 and Holding is duly incorporated on May 30,
1990.
(1) each
of the Bank and Holding have corporate power and corporate capacity to execute
and deliver the Indenture, the Notes and this Agreement, authorize the
distribution of the Prospectus on their behalf, undertake and perform the
obligations expressed to be assumed by each of
18
them in
the Indenture, the Notes and this Agreement; and
(2) neither
the Bank nor Holding omitted to take any internal corporate action in connection
with its entering into the Indenture and this Agreement, the distribution of the
Prospectus and the issuance of the Notes the absence of which may give it a
right to assert against contracting parties acting in good faith that it has not
validly entered into the Indenture or this Agreement; and
(B) each
of the Indenture, the Notes, the Guarantee, and this Agreement has been duly
executed on behalf of the Bank and Holding and constitutes the valid and legally
binding obligations of the Bank and Holding respectively, enforceable in
accordance with their terms.
(C) no
authorizations, licenses, 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
distribution by or on behalf of the Bank and Holding of the Prospectus outside
the Netherlands; or
(2) the
execution and delivery by the Bank and Holding of the Indenture, the Notes and
this Agreement, and the performance of their respective obligations thereunder
and the issue of the Notes by the Bank; or
(3) the
payment by the Bank and/or Holding, when due, of all sums which they may be
liable to pay in respect of the Notes or under the Indenture and this Agreement
in the currency in which they are stated to be payable;
provided, however, that with
respect to (1) and (2) above, any agent offering securities or distributing the
Prospectus in or from The Netherlands (whether electronically or otherwise) will
be licensed or exempt pursuant to Articles
19
7 and 10
inclusively of the Securities ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
In
themselves, none of the matters referred to in (C)(1) through (C)(3) 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 of either the Bank or Holding; or
(2) any
law or generally applicable regulation of The Netherlands to which the Bank or
Holding are subject
which
would make the Indenture or this Agreement, or parts thereof, or the Notes or
the Guarantee null and void or subject to avoidance or nullification in The
Netherlands.
(D) the
statements in the Registration Statement, as then amended or supplemented, under
Item 8, insofar as such statements constitute summaries of the legal matters,
referred to therein, fairly summarize the matters referred to
therein.
(E) the
agreement of the Bank and Holding that the Indenture, the Notes 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
20
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);
(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).
(F) the
submission by the Bank and Holding to the non-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 Guarantee (in respect of Holding only) and this
Agreement is valid and legally binding upon the Bank and Holding and not subject
to unilateral revocation. However, because of the non-exclusive
nature of the jurisdiction clause a Netherlands court may assume jurisdiction on
the basis of the general provisions of the Judgments Regulation (as defined
below) or, if the Judgments Regulation does not apply, of Netherlands domestic
rules on international jurisdiction. Furthermore, a competent court in The
Netherlands may assume jurisdiction (i) if the defendant enters an appearance
and does not contest the jurisdiction prior to defences relating to the merits
and, in the event that Council Regulation (EC) No. 44/2001 on Jurisdiction and
the Enforcement and Judgments in Civil and Commercial matters of 22 December
2000 (as amended) (the “Judgments Regulation”) does
not apply, there is a reasonable ground for jurisdiction of such Netherlands
court; (ii) pursuant to Article 254 Dutch Code of Civil Procedure (Wetboek van Burgerlijke
Rechtsvordering) in urgent matters, when, in view of the interests of the
21
parties,
provisional measures are required, or (iii) in the context of an attachment
against the Bank or Holding or any of their respective assets.
(ii) The
opinion, dated as of such date, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Agents, to the effect that:
(A) the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, and assuming that it has been duly authorized, executed, and delivered
by the Bank and Holding, the Indenture is a valid and binding agreement of the
Bank and Holding, enforceable against the Bank and Holding 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 law;
(B) assuming
the forms of the Notes have been duly authorized as a matter of Dutch law, when
the forms of the Notes have been duly authorized and established in conformity
with the provisions of the Indenture and when the Notes have been executed by
the Bank and Holding and authenticated by the 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, the Notes will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the Bank,
and the Guarantee will be a valid and binding obligation of Holding, each
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 law;
(C) the
execution and delivery by the Bank and Holding of the Notes, the Indenture and
this Agreement, and the performance by each of the Bank and Holding of their
respective obligations under such
22
agreements
(and the Guarantee in respect of Holding only) will not contravene
any provision of applicable U.S. federal or New York State law that in such
counsel’s experience is normally applicable to transactions of the type
contemplated by such agreements, and no consent, approval, authorization or
order of or qualification with any U.S. federal or New York State governmental
body or agency that in such counsel’s experience is normally applicable to
transactions of the type contemplated by such agreements is required for the
performance by the Bank and Holding of their obligations under the Notes,
Guarantee (with respect to Holding only), the Indenture or this Agreement,
except such as have been obtained and except that no opinion is expressed herein
with respect to (i) the applicability of the securities or Blue Sky laws of the
various states in connection with the offer and sale of any Notes or (ii)
whether the purchase of any 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;
(D) the
statements in the Prospectus under the captions “Description of Debt
Securities”, “Description of Notes”, “Plan of Distribution” and
“Forms of Securities”
insofar as such statements purport to constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly summarize the matters
therein described in all material respects;
(E) such
counsel confirms its opinion set forth in the ABN Notes Prospectus Supplement
under the caption “United
States Federal Taxation” and that, subject to the qualifications set
forth therein, the discussion set forth in the ABN Notes Prospectus Supplement
under such caption is an accurate summary of the U.S. federal income tax matters
described therein;
(F) the
Bank is not required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended;
(G) each
document filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus, as amended or supplemented through the date
23
hereof
(except for the financial statements or schedules or other financial or
statistical data), appears on its face to be appropriately responsive in all
material respects to the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder.
(H) (1)
in the opinion of such counsel, the Registration Statement and the Prospectus
(except for the financial statements and schedules and other financial and
statistical data and any Form T-1 included or incorporated by reference therein,
as to which such counsel need not express any opinion) appear on their face to
be appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder, and (2) nothing has come to the attention of such counsel that
causes such counsel to believe that (i) the Registration Statement or the
Base Prospectus included therein (except for the financial statements and
schedules and other financial and statistical data and any Form T-1 included or
incorporated by reference therein, as to which such counsel need not express any
belief) as of the Commencement Date contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) the ABN Notes
Prospectus Supplement (except as aforesaid) as of the Commencement Date
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statement therein,
in the light of the circumstances under which they were made, not
misleading.
▇▇▇▇▇
▇▇▇▇ will advise you that, based solely on conversations with the Commission, no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for the purpose have been instituted, are pending or,
to such counsel’s knowledge, are contemplated under the Securities
Act.
Notwithstanding
the foregoing, the opinions described in subparagraphs (B), (C), (D), (E) and
(H)(2)(i) and (ii) of paragraph (b)(ii) above shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission to Notes the
payments of principal or interest on which, or any other
24
payments
with respect to which, will be determined by reference to one or more currency
exchange rates, commodity prices, securities issued by the Company or by
entities affiliated or unaffiliated with the Bank or Holding, baskets of such
securities or indices and on such other terms as may be set forth in the
relevant pricing supplement specifically relating to the Notes.
With
respect to subparagraph (H) of paragraph (b)(ii) above, ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇ may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and the ABN Notes
Prospectus Supplement, 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
opinion of ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership described in paragraph
(b)(i) above shall be rendered to you at the request of the Bank and Holding and
shall so state therein. In addition, such opinion and the opinion described in
paragraph (b)(ii) above shall expressly provide that any agent that becomes an
Agent hereunder following the Commencement Date may rely on such opinion as
though it were addressed to such agent (it being understood that such opinion
speaks only as of the date of such opinion).
(c) On
the Commencement Date, you shall have received a certificate of the Bank and
Holding, dated the Commencement Date and signed by two authorized signatories of
the Bank and Holding, respectively, to the effect set forth in subparagraph
(a)(iii) above, and to the effect that the representations and warranties of the
Bank and Holding contained in this Agreement are true and correct as of such
date, that the Bank and Holding have complied with all of the agreements and
satisfied all of the conditions on their parts to be performed or satisfied on
or before such date and as to such other matters as you shall reasonably
request.
(d) On
the Commencement Date, Holding’s independent auditors shall have furnished to
you a letter or letters, dated as of the Commencement Date, in form and
substance satisfactory to you 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 or incorporated by reference into the Prospectus, as
then amended or supplemented, and the Time of Sale Information, provided that
each letter so furnished shall use a “cut-off date” no more than
three business days prior to the date of such letter.
(e) On
the Commencement Date the Bank and Holding shall have furnished to you such
appropriate further information, certificates
25
and
documents as you may reasonably request. On each Settlement Date with respect to
any applicable Terms Agreement, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Bank and Holding in connection with the issuance and sale of Notes
as herein contemplated shall be satisfactory in form and substance to the Agents
and to counsel to the Agents.
6. Additional Agreements of the Bank
and Holding.
(a) Unless
the Bank has suspended the solicitation of offers to purchase Notes pursuant to
Section 3(a), at your request each of the Bank and Holding will deliver or cause
to be delivered forthwith to you a certificate signed by two authorized
signatories of the Bank and Holding, respectively, in form reasonably
satisfactory to you, of the same tenor as the certificate referred to in Section
5(c) in the following circumstances:
(i) at
the time of filing of the annual report on Form 20-F by Holding, or
(ii) at
any time the Registration Statement or Prospectus is amended or supplemented to
provide for a material change directly relating to the offering of the Notes
(other than by means of a pricing supplement), which shall not include a change
providing for specific terms of the Notes or any change resulting from the
merger of any of the Agents,
in each
case, provided that your request shall be made at a reasonable time
in advance of such filing, amendment or supplement.
(b) Each
time the Bank and Holding furnish a certificate pursuant to Section 6(a), at
your request the Bank and Holding will furnish or cause to be furnished
forthwith to you written opinions of counsel for the Bank and Holding. Any such
opinions shall be dated the date of such filing, amendment or supplement, as the
case may be, and shall be in a form satisfactory to you and shall be of the same
tenor as the opinions referred to in Section 5(b), but modified to relate to the
Registration Statement which incorporates the annual report on Form 20-F, or the
Registration Statement and Prospectus as amended or supplemented to the time of
delivery of such letter, as the case may be. In lieu of such opinion,
26
counsel
last furnishing such an opinion to you may furnish to you a letter to the effect
that you may rely on such last opinion to the same extent as though it were
dated the date of such letter (except that statements in such last opinion will
be deemed to relate to the Registration Statement which incorporates the annual
report on Form 20-F, or the Registration Statement and Prospectus as amended or
supplemented to the time of delivery of such letter).
(c) Each
time the Bank and Holding furnish a certificate pursuant to Section 6(a), at
your request Holding shall cause its independent auditors forthwith to furnish
you with a letter, dated the date of such filing, amendment or supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 5(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of such
letter; provided that each letter so furnished shall use a “cut-off date” no more than
three business days prior to the date of such letter.
(d) The
Company will pay the required Commission filing fees related to the Notes within
the time required by Rule 456(b)(1) under the Securities Act and otherwise in
accordance with Rules 456(b) and 457(r) under the Securities Act.
7. Indemnification and
Contribution.
(a) The
Bank and Holding agree to indemnify and hold harmless you and each person, if
any, who controls you within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) (collectively, “Losses”) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, the Time of Sale Information 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 are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to you furnished to
the Bank or Holding in writing by you expressly for use therein. The
foregoing indemnity agreement with respect to any Time of Sale Information shall
not inure to the benefit of any Agent from whom the person asserting any such
Losses
27
purchased
any Notes where it shall have been determined by a court of competent
jurisdiction by final and non-appealable judgment that (i) prior to the Time of
Sale of such Notes the Company shall have notified such Agent that the Time of
Sale Information contains an untrue statement of material fact or omits to state
therein a material fact required to be stated therein in order to make the
statements therein not misleading, (ii) such untrue statement or omission of a
material fact was corrected in a Permitted Free Writing Prospectus constituting
Time of Sale Information, such correcting Permitted Free Writing Prospectus was
filed with the Commission prior to the Time of Sale of such Notes and such
correcting Permitted Free Writing Prospectus was provided to such Agent far
enough in advance of the Time of Sale of such Notes so that such correcting
Permitted Free Writing Prospectus could have been provided to such person prior
to the Time of Sale of such Notes, (iii) such correcting Permitted Free Writing
Prospectus (excluding any document then incorporated or deemed incorporated
therein by reference) was not conveyed to such person at or prior to the Time of
Sale of such Notes, and (iv) such correcting Permitted Free Writing Prospectus
would have cured the defect giving rise to such Losses.
(b) You
agree to indemnify and hold harmless the Bank and Holding, their directors,
their officers 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 you, but only (i) with
reference to information relating to you furnished to the Bank or Holding in
writing by you expressly for use in the Registration Statement or the Prospectus
(or any amendments or supplements thereto) or the Time of Sale
Information.
(c) You
agree to indemnify and hold harmless the Bank and Holding, their directors,
officers and employees 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 from and against any and all Losses to which any of them may
become subject, insofar as such Losses arise out of or are in connection with
the breach of any representation or warranty made by you in Section 2
hereof.
(d) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to any of the paragraphs (a) through (c) above, 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
28
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 designated in writing by you, in the case
of parties indemnified pursuant to paragraph (a) above, and by the Bank or
Holding, in the case of parties indemnified pursuant to paragraph (b) or (c)
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 were to 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.
(e) To
the extent the indemnification provided for in paragraphs (a) through (c) of
this Section 7 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages
29
or
liabilities referred to therein in connection with any offering of Notes, 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 you on the other
hand from the offering of such Notes or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Bank and Holding on the one hand and
you 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 on the one hand and you on the other hand in connection with the
offering of such Notes shall be deemed to be in the same respective proportions
as the total net proceeds from the offering of such Notes (before deducting
expenses) received by the Bank bear to the total discounts and commissions
received by you in respect thereof. The relative fault of the Bank and Holding
on the one hand and of you 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 on the one hand and you
on the other hand and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(f) The
Bank and Holding on the one hand and you on the other hand agree that it would
not be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (e)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph (e) above 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 7, you shall not be required to contribute any amount
in excess of the amount by which the total price at which the Notes referred to
in paragraph (e) above that were offered and sold to the public through you
exceeds the amount of any damages that you have 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
30
Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 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.
(g) The
indemnity and contribution provisions contained in this Section 7 and the
representations, warranties and other statements of the Bank and Holding, their
officers and you set forth in or made pursuant to this Agreement or any Terms
Agreement will remain operative and in full force and effect regardless
of any termination of this Agreement or any such Terms Agreement, any
investigation made by or on behalf of you or any person controlling you or by or
on behalf of the Bank or Holding, their officers or directors or any person
controlling the Bank or Holding and acceptance of and payment for any of the
Notes.
8. Position of the Agents. In
acting under this Agreement and in connection with the sale of any Notes by the
Bank and Holding (other than Notes sold to you pursuant to a Terms Agreement),
you are acting solely as agents of the Bank and Holding and do not assume any
obligation towards or relationship of agency or trust with any purchaser of
Notes. You shall make reasonable efforts to assist the Bank and Holding in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by you and accepted by the Bank and Holding, but you shall not have
any liability to the Bank or Holding in the event any such purchase is not
consummated for any reason. If the Bank or Holding shall default in their
respective obligations to deliver Notes to a purchaser whose offer the Bank has
accepted, the Bank and Holding shall hold you harmless against any loss, claim,
damage or liability arising from or as a result of such default and shall, in
particular, pay to you the commission you would have received had such sale been
consummated.
9. Offering
Restrictions.
(a) If
any Notes are to be offered outside the United States, you will not offer or
sell any such Notes in any jurisdiction if such offer or sale would not be in
compliance with any applicable law or regulation or if any consent, approval or
permission is needed for such offer or sale by you or for or on behalf of the
Bank or Holding unless such consent, approval or permission has been previously
obtained. Subject to the obligations of the Bank and Holding set forth in
Section 4 of this Agreement, neither the Bank nor Holding shall have any
responsibility for, and it shall by your responsibility to obtain, any consent,
approval or permission required by you for the subscription, offer, sale or
delivery by you of Notes, or the distribution of any offering materials, under
the laws and regulations in
31
force in
any jurisdiction to which you are subject or in or from which you make any
subscription, offer, sale or delivery.
(b) You
will not offer or sell any securities anywhere in the world except in compliance
with the requirements of the Dutch Securities ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (Wet toezicht
effectenverkeer).
10. Termination. This Agreement
constitutes the entire agreement of the parties with regard to the subject
matter hereof and supersedes all prior oral or written agreements between the
parties hereto or their predecessors with regard to the subject matter hereof.
This Agreement may be terminated at any time either by the Bank and Holding on
the one hand or by you on the other hand upon the giving of written notice of
such termination to the other parties hereto, but without prejudice to any
rights, obligations or liabilities of either parties hereto accrued or incurred
prior to such termination. The termination of this Agreement shall not require
termination of any Terms Agreement, and the termination of any such Terms
Agreement shall not require termination of this Agreement. If this Agreement is
terminated, the third paragraph of Section 3(a), the last sentence of Section
4(b) and 3(c) and Sections 7, 8, 11, 12 and 14 shall survive; provided that if
at the time of termination an offer to purchase Notes has been accepted by the
Bank but the time of delivery to the purchaser or its agent of such Notes has
not occurred, the provisions of Sections 1, 3(b), 3(c), 4(a), 4(e), 4(f), 4(g),
4(h), 4(j), 5 and 6 shall also survive until such delivery has been
made.
11. Advertisements. You agree not
to publish or cause to be published or use any written notice, circular,
advertisement, letter or communication relating to any offering or proposed
offering of the Notes, including, without limitation, any communications within
the meaning of Rule 134 under the Securities Act, other than the Prospectus or
Time of Sale Information relating to the particular Notes.
12. Notices. All communications
hereunder will be in writing and effective only on receipt, and, if sent to the
Agents, at the address beneath such Agent’s signature on the signature page
hereof; or, if sent to the Bank and Holding, will be mailed, delivered or
telefaxed and confirmed to the Bank at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, Attention: GEDD–New Issues, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Esq.,
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(telefax number: 212-450-3135) and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., ABN AMRO Incorporated,
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telefax number:
212-450-7303).
13. Successors. This Agreement
and any Terms Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 7 and the purchasers of Notes (to the
extent expressly provided in Section 5), and no other person will have any right
or obligation hereunder.
32
14. Counterparts. This Agreement
may be signed in any number of 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 will 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 Agent or by any person controlling any Agent, 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, waive any objection which they may now or hereafter have to the laying of
venue of any such proceeding, and irrevocably submit to the non-exclusive
jurisdiction of such court in any suit, action or proceeding. The Bank and
Holding have appointed ▇▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel, ABN AMRO Bank N.V.,
Business Unit North America, as their 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 Agent and each of the Bank and
Holding expressly accept 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 Holding and
such appointment shall have been accepted by such successor authorized agent.
The Bank and Holding each 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 Agents 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 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 and Holding, on the
33
one hand,
and the Agents, on the other hand, 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.
34
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Bank, Holding and
you.
|
Very
truly yours,
ABN
AMRO BANK N.V.
|
||||
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|||
| Name: |
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|||
| Title: |
Attorney-in-fact
|
|||
| By: |
/s/
Alexia Breuvart
|
|||
| Name: |
Alexia
Breuvart
|
|||
| Title: |
Attorney-in-fact
|
|||
|
ABN
AMRO HOLDING N.V.
|
||||
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|||
| Name: |
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|||
| Title: |
Attorney-in-fact
|
|||
| By: |
/s/
Alexia Breuvart
|
|||
| Name: |
Alexia
Breuvart
|
|||
| Title: |
Attorney-in-fact
|
|||
The
foregoing U.S. Distribution Agreement
is hereby
confirmed and accepted as of the
date
first above written.
|
LASALLE
FINANCIAL SERVICES, INC.
|
||||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇
|
|||
| Name: |
▇▇▇▇▇▇▇
▇▇▇▇
|
|||
| Title: |
First
Vice President
|
|||
|
Notices
hereunder shall be sent to:
|
|||
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|||
|
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|||
| Attention: |
Division
Manager
|
||
| Telefax: |
▇▇▇-▇▇▇-▇▇▇▇
|
||
The
foregoing U.S. Distribution Agreement
is hereby
confirmed and accepted as of the
date
first above written.
|
ABN
AMRO INCORPORATED
|
||||
|
By:
|
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|||
| Name: |
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|||
| Title: |
Managing
Director
|
|||
|
Notices
hereunder shall be sent to:
|
|||
|
▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ Avenue Plaza
|
|||
|
New
York, New York 10055
|
|||
| Attention: |
Private
Investor Products
|
||
| Telefax: |
▇▇▇-▇▇▇-▇▇▇▇
|
||
EXHIBIT
A
ABN
AMRO BANK N.V.
ABN
AMRO HOLDING N.V.
SELLING
AGENCY INVITATION
Date:
[ ]
To:
[Agents]
Reference
is made to the U.S. Distribution Agreement dated September 29, 2006 among ABN
AMRO Bank N.V. (the “Issuer”), ABN AMRO Holding
N.V. (the “Guarantor”)
and the Agents named therein (the “Distribution Agreement”).
Terms not otherwise defined herein shall have the respective meanings assigned
to them in the Distribution Agreement.
You are
hereby invited to participate in the offering of the Securities described below
for the purposes of soliciting and receiving offers to purchase the Securities
from the Issuer and the Guarantor by others.
By your
acceptance of this Selling Agency Invitation, you hereby reaffirm the
representations and warranties contained in Section 2 of the Distribution
Agreement.
The
Securities
|
Issuer:
|
ABN
AMRO Bank N.V.
|
|
Guarantor
|
ABN
AMRO Holding N.V.
|
|
Title:
|
[ ]
|
|
Issue
Size:
|
[ ]
|
|
Coupon:
|
[ ]
|
|
Denominations:
|
[ ]
|
|
Issue
Price:
|
[ ]
|
|
Sales
Commission:
|
[ ]
|
|
Proposed
Issue Date:
|
[ ]
|
|
Maturity
Date:
|
[ ]
|
|
Start
of Selling Period/Launch Date:
|
[ ]
|
|
Closing
Date:
|
[ ]
|
|
Start
of Selling Period:
|
[ ]
|
A-1
The terms
and conditions of the Securities are set out in the pricing supplement to be
used in connection with the offering of the Securities. The Issuer will supply
you with, or otherwise make available, a reasonable number of copies of the Time
of Sale Information upon request.
|
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: |
|
||
A-2
EXHIBIT
B
ABN AMRO
BANK N.V.
ABN AMRO
HOLDING N.V.
ABN
NOTES
NOTES
TERMS AGREEMENT
_______________,
200_
ABN AMRO
Bank N.V.
ABN AMRO
HOLDING N.V.
Attention:
|
|
Re:
|
U.S.
Distribution Agreement dated September 29, 2006 (the “U.S. Distribution
Agreement”)
|
The
undersigned agrees to purchase your ABN Notes having the following
terms:
|
All
Notes
|
Fixed
Rate Notes
|
Floating
Rate Notes
|
||
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
||
|
Purchase
Price:
|
Applicability
of Modified Payment upon Acceleration:
|
Index
Maturity:
|
||
|
Price
to Public:
|
If
yes, state issue price:
|
Index
Currency:
|
||
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
(Plus or Minus):
|
||
|
Place
of Delivery:
|
Applicability
of Annual Interest Payments:
|
Spread
Multiplier:
|
||
|
Specified
Currency:
|
Denominated
Currency (if any):
|
Alternate
Rate Event Spread:
|
||
|
Original
Issue Date:
|
Indexed
Currency or Currencies (if any):
|
Initial
Interest Rate:
|
||
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Initial
Interest Reset Date:
|
B-1
|
All
Notes
|
Fixed
Rate Notes
|
Floating
Rate Notes
|
||
|
Maturity
Date:
|
Exchange
Rate Agent (if any):
|
Interest
Reset Dates:
|
||
|
Optional
Repayment Date(s):
|
Reference
Dealers:
|
Interest
Reset Period:
|
||
|
Optional
Redemption Date(s):
|
Face
Amount (if any):
|
Maximum
Interest Rate:
|
||
|
Initial
Redemption Date:
|
Fixed
Amount of each Indexed Currency (if any):
|
Minimum
Interest Rate:
|
||
|
Initial
Redemption Percentage:
|
Aggregate
Fixed Amount of each Indexed Currency (if any):
|
Interest
Payment Period:
|
||
|
Annual
Redemption Percentage Reduction:
|
Applicability
of Issuer’s Option to Extend Original Maturity Date:
|
Calculation
Agent:
|
||
|
Ranking:
|
If
yes, state Final Maturity Date:
|
Reporting
Service:
|
||
|
Other
Provisions:
|
Variable
Rate Renewable Notes:
|
|||
|
Redemption
Dates:
|
||||
|
Redemption
Percentage:
|
||||
|
Initial
Maturity Date:
|
||||
|
Final
Maturity Date:
|
||||
|
Applicability
of Issuer’s Option to Reset Spread or Spread
Multiplier:
|
The
provisions of Sections 1, 3(b) and 3(c), 4 through 7, 9 and 11 through 15 of the
U.S. Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is terminated, the provisions of Sections 4(i), 7, 11,
12, and 14 of the U.S. Distribution Agreement shall survive for the purposes of
this Agreement.
B-2
The
following information, opinions, certificates, letters and documents referred to
in Section 5 of the U.S. Distribution Agreement will be required:
B-3
| LASALLE FINANCIAL SERVICES, INC. |
ABN
AMRO INCORPORATED
|
||||||
| By: | By: | ||||||
| Name: | Name: | ||||||
| Title: | Title: | ||||||
|
Accepted:
|
|||||||
|
ABN
AMRO BANK N.V.
|
|||||||
| By: | |||||||
| Name: | |||||||
| Title: | |||||||
| By: | |||||||
| Name: | |||||||
| Title: | |||||||
|
ABN
AMRO HOLDING N.V.
|
|||||||
| By: | |||||||
| Name: | |||||||
| Title: | |||||||
| By: | |||||||
| Name: | |||||||
| Title: | |||||||
B-4
EXHIBIT
C
ABN AMRO
BANK N.V.
ABN AMRO
HOLDING N.V.
ABN
NOTES
ADMINISTRATIVE
PROCEDURES
______________________
Explained
below are the administrative procedures and specific terms of the offering from
time to time of senior notes (the “Notes”), on a continuous basis
by ABN AMRO Bank N.V. (the “Bank”) pursuant to the U.S.
Distribution Agreement, dated as of September 29, 2006 (as may be amended from
time to time, the “Distribution
Agreement”) between the Bank, ABN AMRO Holding N.V. as guarantor (“Holding”) and the Agents
listed on the signature pages therein (collectively or individually, the “Agent”). The Notes will be
issued as senior indebtedness of the Bank pursuant to the provisions of an
indenture dated as of September 15, 2006 (as may be supplemented or amended from
time to time, the “Indenture”) among the Bank,
Holding, Citibank N.A., as securities administrator, and Wilmington Trust
Company, as trustee.
In the
Distribution Agreement, upon appointment pursuant to a Selling Agency
Invitation, the Agent has agreed to use reasonable efforts to solicit purchases
of the Notes, and the administrative procedures explained below will govern the
issuance and settlement of any Notes sold through the Agent, as agent of the
Bank. The Agent, as principal, may also purchase Notes for its own account, and
if requested by the Agent, the Bank and Holding, on the one side, and the Agent,
on the other side, will enter into a terms agreement (a “Terms Agreement”), as
contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes purchased
by the Agent, as principal, unless otherwise specified in the applicable Terms
Agreement.
Citibank
N.A. (“Citibank”) will
be the Registrar, Calculation Agent (with respect to Floating Rate Notes),
Authenticating Agent and Paying Agent for the Notes and in each case, will
perform the duties specified herein. Each Note will be represented by either (i)
a Global Note and (as defined below) delivered to Citibank, as agent for The
Depository Trust Bank (“DTC”), and recorded in the
book-entry system maintained by DTC (in the case of a Note, a “Book-Entry Note” or (ii) a
certificate delivered to the holder thereof or a person designated by such
holder, a “Certificated
Note”. Except as set forth in the Indenture, an owner
C-1
of a
Book-Entry Note, as the case may be, will not be entitled to receive a
Certificated Note.
Book-Entry
Notes, which may be payable in either U.S. dollars or other specified
currencies, will be issued in accordance with the administrative procedures set
forth in Part I hereof as they may subsequently be amended as the result of
changes in DTC’s operating procedures. Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II
hereof.
Unless
otherwise defined herein, terms defined in the Indenture or any Prospectus
Supplement relating to the Notes shall be used herein as therein
defined.
The Bank
will advise the Agent in writing of the employees of the Bank with whom the
Agent is to communicate regarding offers to purchase Notes and the related
settlement details.
C-2
PART
I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In
connection with the qualification of the Book-Entry Notes for eligibility in the
book-entry system maintained by DTC, Citibank will perform the custodial,
document control and administrative functions described below.
|
Issuance:
|
On
any date of settlement (as defined under “Settlement” below) for
one or more Book-Entry Notes, the Bank will issue, in the case of the
Notes, a single global Note in fully registered form without coupons (a
“Global Note”)
representing up to U.S. $500,000,000 principal amount of all such Notes
that have the same Original Issue Date, Maturity Date and other terms.
Each Global Note will be dated and issued as of the date of its
authentication by Citibank. Each Global Note, will bear an “Interest Accrual Date,”
which will be (i) with respect to an original Global Note (or any portion
thereof), its original issuance date and (ii) with respect to any Global
Note (or any portion thereof) issued subsequently upon exchange of a
Global Note, or in lieu of a destroyed, lost or stolen Global Note, the
most recent Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Note or Notes (or if no such
payment or provision has been made, the original issuance date of the
predecessor Global Note), regardless of the date of authentication of such
subsequently issued Global Note. Book-Entry Notes may be payable in either
U.S. dollars or other specified currencies. No Global Note will represent,
any Certificated Note, as the case may be.
|
|
|
If
the Pricing Supplement (as defined herein) provides for an extended
offering period beyond the Original Issue Date, then on any subsequent
date of settlement for Notes having the same Original Issue Date, Maturity
Date and other terms as the Notes represented by such Global Note,
Citibank will annotate the Global Note to indicate the change in aggregate
principal amount. Upon such annotation, Citibank, by means of an
instruction originated through DTC’s Deposit/Withdrawal at Custodian
(DWAC) system, will inform DTC to reflect an increase to the aggregate
principal amount of the
|
C-3
|
Notes.
|
||
|
Denominations:
|
Book-Entry
Notes will be issued in principal amounts of U.S. $1,000 or any amount in
excess thereof that is an integral multiple of U.S. $1,000 or, if such
Book-Entry Notes are issued in a currency other than U.S. dollars,
principal amounts of such currency in denominations of the equivalent of
U.S. $1,000 (rounded to an integral multiple of 1,000 units of such
currency), unless otherwise indicated in the applicable Pricing
Supplement, will be denominated in principal amounts not in excess of U.S.
$500,000,000. If one or more Book-Entry Notes having an aggregate
principal amount in excess of U.S. $500,000,000, would, but for the
preceding sentence, be represented by a single Global Note, then one
Global Note will be issued to represent each U.S. $500,000,000 principal
amount of such Book-Entry Note or Notes and an additional Global Note,
will be issued to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the Global Notes
representing such Book-Entry Note or Notes shall be assigned the same
CUSIP number.
|
|
|
Preparation
of Pricing Supplement:
|
If
any order to purchase a Book-Entry Note is accepted by or on behalf of the
Bank, the Bank will prepare a pricing supplement (a “Pricing Supplement”)
reflecting the terms of such Note. The Bank (i) will arrange to file an
electronic format document, in the manner prescribed by the ▇▇▇▇▇ ▇▇▇▇▇
Manual, of such Pricing Supplement with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the Act, (ii) will, promptly
and in any event not later than the date on which such Pricing Supplement
is filed with the Commission, deliver the number of copies of such Pricing
Supplement to the Agent as the Agent shall reasonably request and (iii)
will, on the Agent’s behalf, promptly file five copies of such Pricing
Supplement with the National Association of Securities Dealers, Inc. (the
“NASD”). The Agent
will cause such Pricing Supplement to be delivered to the purchaser of the
Note.
|
|
|
In
each instance that a Pricing Supplement
is
|
C-4
|
prepared,
the Agent will affix the Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
|
||
|
Settlement:
|
The
receipt by the Bank of immediately available funds in payment for a
Book-Entry Note and the authentication and issuance of the Global Note
representing such Note shall constitute “settlement” with respect
to such Note. All orders accepted by the Bank will be settled on the fifth
Business Day pursuant to the timetable for settlement set forth below
unless the Bank and the purchaser agree to settlement on another day,
which shall be no earlier than the next Business Day.
|
|
|
Settlement
Procedures:
|
Settlement
Procedures with regard to each Book-Entry Note sold by the Bank to or
through the Agent (unless otherwise specified pursuant to a Terms
Agreement), shall be as follows:
|
|
|
A.
|
In
the case of a Book-Entry Note, the Agent will advise the Bank by telephone
that such Note is a Book-Entry Note and of the following settlement
information:
|
|
|
1.
Principal amount.
|
||
|
2.
Maturity Date.
|
||
|
3.
In the case of a Fixed Rate Book-Entry Note, the Interest Rate, whether
such Note will pay interest annually, semiannually or quarterly or, in the
case of a Floating Rate Book-Entry Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity, Index Currency, Interest
Reset Period, Initial Interest Reset Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the Alternate Rate Event Spread (if
any).
|
||
|
4.
Redemption or repayment provisions, if any.
|
||
|
5.
Ranking.
|
C-5
|
6.
Settlement date and time (Original Issue Date).
|
||
|
7.
Interest Accrual Date.
|
||
|
8.
Price.
|
||
|
9.
Agent’s commission, if any, determined as provided in the Distribution
Agreement.
|
||
|
10.
Whether the Note is an Original Issue Discount Note (an “OID Note”), and if it is
an OID Note, the applicability of Modified Payment upon Acceleration (and,
if so, the Issue Price)
|
||
|
11.
Whether the Bank has the option to reset the Spread or Spread Multiplier
of the Note.
|
||
|
12. Whether
the Note is an Optionally Exchangeable Note, a Mandatorily Exchangeable
Note, or any form of exchangeable Note.
|
||
|
13. Any
other applicable provisions.
|
||
|
B.
|
The
Bank will advise Citibank by telephone or electronic transmission
(confirmed in writing at any time on the same date) of the information set
forth in “Settlement
Procedure” “A” above. The Bank will
then assign a CUSIP number to the Global Note representing a Note and will
notify Citibank and the Agent of such CUSIP number(s) by telephone as soon
as practicable.
|
|
C.
|
Citibank
will enter a pending deposit message through DTC’s Participant Terminal
System, providing the following settlement information to DTC, the Agent
and Standard & Poor’s Corporation:
|
|
|
1.
The information set forth in “Settlement Procedure”
“A” and “B”
above.
|
||
|
2.
The Initial Interest Payment Date for the Notes the number of days by
which such date succeeds the related DTC Record Date and, if known, amount
of interest payable on such Initial Interest Payment
Date.
|
||
|
3.
The CUSIP number of the Global Note.
|
||
|
4.
Whether the Global Note will represent
any
|
C-6
|
other
Book-Entry Note (to the extent known at such time).
|
||
|
5.
The number of Participant accounts to be maintained by DTC on behalf of
the Agent and Citibank.
|
||
|
D.
|
Citibank
will authenticate and deliver the Global Note representing the Note upon
its receipt of a written authentication order from the
Bank.
|
|
|
E.
|
DTC
will credit such Note to Citibank’s participant account at
DTC.
|
|
|
F.
|
Citibank
will enter an SDFS deliver order through DTC’s Participant Terminal System
instructing DTC to (i) debit the Note, as the case may be, to Citibank’s
participant account and credit such Note to the Agent’s participant
account and (ii) debit the Agent’s settlement account and credit
Citibank’s settlement account for an amount equal to the price of such
Note, less the Agent’s commission, if any. The entry of such a deliver
order shall constitute a representation and warranty by Citibank to DTC
that (a) the Global Note representing a Book-Entry Note has been issued
and authenticated and (b) Citibank is holding such Global Note pursuant to
the Medium-Term Note Certificate Agreement between Citibank and
DTC.
|
|
|
G.
|
Unless
the Agent is the end purchaser of the Note, the Agent will
enter an SDFS deliver order through DTC’s Participant Terminal System
instructing DTC (i) to debit such Note to the Agent’s participant account
and credit such Note to the participant accounts of the Participants with
respect to such Note and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of the Agent for an amount
equal to the price of such Note.
|
|
|
H.
|
Transfers
of funds in accordance with SDFS deliver orders described in Settlement
Procedures “F” and
“G” will be
settled in accordance with SDFS operating procedures in effect on the
settlement date.
|
|
|
I.
|
Citibank
will credit to the account of the
Bank
|
C-7
|
maintained
at ABN AMRO, New York, in funds available for immediate use in the amount
transferred to Citibank in accordance with “Settlement Procedure”
“F”.
|
||
|
J.
|
Unless
the Agent is the end purchaser of the Note, the Agent will confirm the
purchase of such Note to the purchaser either by transmitting to the
Participants with respect to such Note a confirmation order or orders
through DTC’s institutional delivery system or by mailing a written
confirmation to such purchaser.
|
|
|
K.
|
Monthly,
Citibank will make available to the Bank a statement setting forth the
principal amount of Notes outstanding as of that date under the
Indentures, and setting forth a brief description of any sales of which
the Bank has advised Citibank that have not yet been
settled.
|
|
|
Settlement
Procedures
Timetable:
|
For
sales by the Bank of Book-Entry Notes to or through the Agent (unless
otherwise specified pursuant to a Terms Agreement) for settlement on the
first Business Day after the sale date, Settlement Procedures “A” through “K” set forth above shall
be completed as soon as possible but not later than the respective times
in New York City set forth below:
|
|
Settlement Procedure |
Time
|
||
|
A
|
11:00
A.M. on the sale date
|
||
|
B
|
11:00
A.M. on the sale date
|
||
|
C
|
12:00
Noon on the sale date
|
||
|
D
|
2:00
P.M. on the sale date
|
||
|
E
|
9:00
A.M. on the settlement date
|
||
|
F
|
10:00
A.M. on the settlement date
|
||
|
G-H
|
2:00
P.M. on the settlement date
|
||
|
I
|
4:45
P.M. on the settlement date
|
||
|
J-K
|
5:00
P.M. on the settlement date
|
|
If
a sale is to be settled more than one Business Day after the sale date,
Settlement Procedures “A”, “B”, “C” and “D” shall be completed as
soon as practicable but no later than 11:00 A.M., 11:00 A.M., 12 Noon and
2:00 P.M., respectively, on the
|
C-8
|
first
Business Day after the sale date. If the Initial Interest Rate for a
Floating Rate Book-Entry Note has not been determined at the time that
“Settlement
Procedure” “A”
is completed, “Settlement
Procedure” “C”
and “D”
shall be completed as soon as such rate has been determined but no later
than 12 Noon and 2:00 P.M., respectively, on the first
Business Day before the settlement date. “Settlement
Procedure” “I”
is subject to extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in the SDFS operating
procedures in effect on the settlement date.
|
||
|
If
settlement of a Book-Entry Note is rescheduled or canceled, Citibank,
after receiving notice from the Bank or the Agent, will deliver to DTC,
through DTC’s Participant Terminal System, a cancellation message to such
effect by no later than 2:00 P.M. on the Business Day immediately
preceding the scheduled settlement date.
|
||
|
Failure
to Settle:
|
If
Citibank fails to enter an SDFS deliver order with respect to a Book-Entry
Note pursuant to “Settlement Procedure”
“G”, Citibank may
deliver to DTC, through DTC’s Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to debit such Note to
Citibank’s participant account, provided that Citibank’s participant
account contains a principal amount of the Global Note representing such
Note that is at least equal to the principal amount or face amount to be
debited. If a withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Note, Citibank will ▇▇▇▇ such
Global Note “canceled,” make appropriate entries in Citibank’s records and
send such canceled Global Note to the Bank. The CUSIP number assigned to
such Global Note shall, in accordance with the procedures of the CUSIP
Service Bureau of Standard & Poor’s Corporation, be canceled and not
immediately reassigned. If a withdrawal message is processed with respect
to one or more, but not all, of the Book-Entry Notes represented by a
Global Note, Citibank will exchange such Global Note for
two
|
C-9
|
Global
Notes one of which shall represent such Book-Entry Note or Notes and shall
be canceled immediately after issuance and the other of which shall
represent the remaining Book-Entry Notes previously represented by the
surrendered Global Note and shall bear the CUSIP number of the surrendered
Global Note.
|
||
|
If
the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof
(or a person, including an indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in turn, the Agent may enter
SDFS deliver orders through DTC’s Participant Terminal System reversing
the orders entered pursuant to Settlement Procedures “F” and “G”, respectively.
Thereafter, Citibank will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
|
||
|
Notwithstanding
the foregoing, upon any failure to settle with respect to a Book-Entry
Note, DTC may take any actions in accordance with its SDFS operating
procedures then in effect.
|
||
|
In
the event of a failure to settle with respect to one or more, but not all,
of the Book-Entry Notes to have been represented by a Global Note Citibank
will provide, in accordance with Settlement Procedures “D” and “E”, for the
authentication and issuance of a Global Note representing the Book-Entry
Notes to be represented by such Global Note and will make appropriate
entries in its records.
|
||
|
PART
II:
|
ADMINISTRATIVE
PROCEDURES FOR CERTIFICATED NOTES
|
|
|
Citibank
will serve as registrar in connection with the Certificated
Notes.
|
||
|
Issuance:
|
Each
Certificated Note will be dated and issued as of the date of its
authentication by Citibank. Each Certificated Note will bear an Original
Issue Date, which will be (i) with respect to an original Certificated
Note (or any portion thereof), its original issuance date (which will be
the settlement date) and (ii) with respect to any Certificated
Note
|
C-10
|
(or
portion thereof) issued subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or stolen Certificated
Note, the original issuance date of the predecessor Certificated Note,
regardless of the date of authentication of such subsequently issued
Certificated Note.
|
||
|
Preparation
of Pricing Supplement:
|
If
any order to purchase a Certificated Note is accepted by or on behalf of
the Bank, the Bank will prepare a pricing supplement (a “Pricing Supplement”)
reflecting the terms of such Note. The Bank (i) will arrange to file an
electronic format document, in the manner prescribed by the ▇▇▇▇▇ ▇▇▇▇▇
Manual, of such Pricing Supplement with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the Act, (ii) will, promptly
and in any event not later than the date on which such Pricing Supplement
is filed with the Commission, deliver the number of copies of such Pricing
Supplement to the Agent as the Agent shall reasonably request and (iii)
will, on the Agent’s behalf, promptly file five copies of such Pricing
Supplement with the NASD. The Agent will cause such Pricing Supplement to
be delivered to the purchaser of the Note.
|
|
|
In
each instance that a Pricing Supplement is prepared, the Agent will affix
the Pricing Supplement to Prospectuses prior to their use. Outdated
Pricing Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be
destroyed.
|
||
|
Settlement:
|
The
receipt by the Bank of immediately available funds in exchange for an
authenticated Certificated Note delivered to the Agent and the Agent’s
delivery of such Note against receipt of immediately available funds shall
constitute “settlement” with respect
to such Note. All offers accepted by the Bank will be settled on or before
the fifth Business Day next succeeding the date of acceptance pursuant to
the timetable for settlement set forth below, unless the Bank and the
purchaser agree to settlement on another
date.
|
C-11
|
Settlement
Procedures:
|
Settlement
Procedures with regard to each Certificated Note sold by the Bank to or
through the Agent (unless otherwise specified pursuant to a Terms
Agreement) shall be as follows:
|
|
|
A.
|
In
the case of Certificated Notes, the Agent will advise the Bank by
telephone that such Note is a Certificated Note and of the following
settlement information:
|
|
|
1.
Name in which such Note is to be registered (“Registered Note
Owner”).
|
||
|
2.
Address of the Registered Note Owner and address for payment of principal
and interest.
|
||
|
3.
Taxpayer identification number of the Registered Note Owner (if
available).
|
||
|
4.
Principal amount.
|
||
|
5.
Maturity Date.
|
||
|
6.
In the case of a Fixed Rate Certificated Note, the Interest Rate, whether
such Note will pay interest annually or semiannually or, in the
case of a Floating Rate Certificated Note, the Initial Interest Rate (if
known at such time), Interest Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index Maturity, Index Currency, Interest
Reset Period, Initial Interest Reset Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the Alternate Rate Event Spread (if
any).
|
||
|
7.
Redemption or repayment provisions, if any.
|
||
|
8.
Ranking.
|
||
|
9.
Settlement date and time (Original Issue Date).
|
||
|
10.
Interest Accrual Date.
|
||
|
11.
Price.
|
||
|
12.
Agent’s commission, if any, determined as provided in the Distribution
Agreement.
|
||
|
13.
Denominations.
|
C-12
|
14.
Specified Currency.
|
||
|
15.
Whether the Note is an OID Note, and if it is an OID Note, the
applicability of Modified Payment upon Acceleration (and if so, the Issue
Price).
|
||
|
16.
Whether the Bank has the option to reset the Spread or Spread Multiplier
of the Note.
|
||
|
17.
Any other applicable provisions.
|
||
|
B.
|
The
Bank will advise Citibank by telephone or electronic transmission
(confirmed in writing at any time on the sale date) of the information set
forth in Settlement Procedure “A” and “B” above, as
applicable.
|
|
|
C.
|
The
Bank will have delivered to Citibank a pre-printed four-ply packet for
each Note, which packet will contain the following documents in forms that
have been approved by the Bank, the Agent and the Trustee, as
applicable:
|
|
|
1.
Note with customer confirmation.
|
||
|
2.
Stub One - For Citibank.
|
||
|
3.
Stub Two - For the Agent.
|
||
|
4.
Stub Three - For the Bank.
|
||
|
D.
|
Citibank
will with respect to a Note, authenticate such Note and deliver it (with
the confirmation) upon receipt of a written authentication order from the
Bank and Stubs One and Two to the Agent. The Agent will acknowledge
receipt of the Note by stamping or otherwise marking Stub One and
returning it to Citibank. Such delivery will be made only against such
acknowledgment of receipt and evidence that instructions have been given
by the Agent for payment to the account of the Bank at Citibank, or to
such other account as the Bank shall have specified to the Agent and
Citibank in funds available for immediate use, of an amount equal to the
price of such Note less the Agent’s commission, if any. In the event that
the instructions given by the Agent for payment to the account of the Bank
are revoked, the Bank will as promptly as possible wire transfer to the
account of the Agent an amount of
|
C-13
|
immediately
available funds equal to the amount of such payment
made.
|
||
|
E.
|
Unless
the Agent is the end purchaser of such Note, the Agent will deliver such
Note (with confirmation) to the customer against payment in immediately
payable funds. The Agent will obtain the acknowledgment of receipt of such
Note by retaining Stub Two.
|
|
|
F.
|
Citibank
will send Stub Three to the Bank by first-class mail. Periodically,
Citibank will also send to the Bank a statement setting forth, in the case
of the Notes, the principal amount of the Notes outstanding as of that
date under the Indenture setting forth a brief description of any sales of
which the Bank has advised Citibank that have not yet been
settled.
|
|
|
Settlement
Procedures
Timetable:
|
For
sales by the Bank of Certificated Notes to or through the Agent
(unless otherwise specified pursuant to a Terms Agreement),
Settlement Procedures “A” through “F” set forth above shall
be completed on or before the respective times in New York City set forth
below:
|
|
Settlement Procedure |
Time
|
||
|
A
|
2:00
P.M. on day before settlement date
|
||
|
B
|
2:00
P.M. on day before settlement date
|
||
|
C
|
3:00
P.M. on day before settlement date
|
||
|
D-E
|
2:15
P.M. on settlement date
|
||
|
F
|
3:00
P.M. on settlement date
|
|
Failure
to Settle:
|
If
a purchaser fails to accept delivery of and make payment for any
Certificated Note, the Agent will notify the Bank and Citibank by
telephone and return such Note to Citibank. Upon receipt of such notice,
the Bank will immediately wire transfer to the account of the Agent an
amount equal to the amount previously credited thereto in respect to such
Note. Such wire transfer will be made on the settlement date, if possible,
and in any event not later than the Business Day following the settlement
date. If the failure shall have occurred for
any
|
C-14
|
reason
other than a default by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then the Bank will
reimburse the Agent or Citibank, as appropriate, on an equitable basis for
its loss of the use of the funds during the period when they were credited
to the account of the Bank. Immediately upon receipt of the Certificated
Note in respect of which such failure occurred, Citibank will ▇▇▇▇ such
note “canceled,” make appropriate entries in Citibank’s records and send
such Note to the Bank.
|
C-15
EXHIBIT
D
Selling
Restrictions
European
Economic Area
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), with
effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the “Relevant Implementation Date”)
the Notes will be offered to the public in that Relevant Member State of the
European Economic Area, except that the Notes may, with effect from and
including the Relevant Implementation Date, be offered to the public in that
Relevant Member State:
|
(a)
|
in
(or in Germany, where the offer starts within) the period beginning on the
date of publication of a prospectus in relation to those Notes which has
been approved by the competent authority in that Relevant Member State or,
where appropriate, approved in another Relevant Member State and notified
to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive and ending on the date which is
12 months after the date of such
publication;
|
|
(b)
|
at
any time to legal entities which are authorised or regulated to operate in
the financial markets or, if not so authorised or regulated, whose
corporate purpose is solely to invest in
securities;
|
|
(c)
|
at
any time to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total
balance sheet of more than €43,000,000 and (3) an annual net turnover of
more than €50,000,000, as shown in its last annual or consolidated
accounts; or
|
|
(d)
|
at
any time in any other circumstances which do not require the publication
by ABN AMRO Bank N.V. of a prospectus pursuant to Article 3 of the
Prospectus Directive.
|
For the
purposes of this provision, the expression “an offer of Notes to the public” in
relation to any Notes in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms of the offer
and the Notes to be offered so as to enable an investor to decide to purchase or
subscribe the Notes, as the same may be varied in that Relevant Member State by
any measure implementing the Prospectus Directive in that Member State and the
expression “Prospectus
Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
D-1