EXHIBIT 4.22
================================================================================
CLASS B PREFERRED SECURITIES GUARANTEE AGREEMENT
ABN AMRO CAPITAL FUNDING LLC [__]
Dated as of ______, ____
================================================================================
TABLE OF CONTENTS
---------------
PAGE
----
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions and Interpretation.................................1
ARTICLE 2
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application...............................5
Section 2.02. Lists of Holders of Securities.................................6
Section 2.03. Reports by the Guarantee Trustee...............................6
Section 2.04. Periodic Reports to Guarantee Trustee..........................6
Section 2.05. Evidence of Compliance with Conditions Precedent...............6
Section 2.06. Events of Default; Waiver......................................7
Section 2.07. Event of Default; Notice.......................................7
Section 2.08. Rights of Holders..............................................7
Section 2.09. Conflicting Interests..........................................8
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
Section 3.01. Powers, Duties and Rights of Guarantee Trustee.................8
Section 3.02. Certain Rights of Guarantee Trustee...........................10
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee.........12
ARTICLE 4
GUARANTEE TRUSTEE
Section 4.01. Guarantee Trustee; Eligibility................................12
Section 4.02. Appointment, Removal and Resignation of Guarantee Trustee....12
ARTICLE 5
GUARANTEE
Section 5.01. Guarantee.....................................................13
Section 5.02. Delivery of Guarantor Certificate; Dividends Deemed Declared..14
Section 5.03. Waiver of Notice and Demand...................................16
Section 5.04. Obligations Not Affected......................................16
Section 5.05. Action Against Guarantor......................................17
Section 5.06. Independent Obligations.......................................17
Section 5.07. Taxes.........................................................18
Section 5.08. Article 6:251 of DCC..........................................18
Section 5.09. Article 6:253 of DCC..........................................19
ARTICLE 6
LIMITATION OF TRANSACTIONS; RANKING
Section 6.01. Limitation of Transactions....................................19
Section 6.02. Ranking.......................................................20
ARTICLE 7
TERMINATION
Section 7.01. Termination...................................................21
ARTICLE 8
INDEMNIFICATION
Section 8.01. Exculpation...................................................21
Section 8.02. Indemnification...............................................21
ARTICLE 9
MISCELLANEOUS
Section 9.01. Successors and Assigns........................................22
Section 9.02. Amendments....................................................22
Section 9.03. Judgment Currency Indemnity...................................22
Section 9.04. Assignment of the Guarantor...................................23
Section 9.05. Notices.......................................................23
Section 9.06. Governing Law.................................................24
Section 9.07. Jurisdiction..................................................24
EXHIBIT A Guarantor's Officers' Certificate............................A-1
ii
CROSS-REFERENCE TABLE(1)
Section of Trust Indenture Act Section of
of 1939, as amended Guarantee
310(a)...................................................... 4.01
310(b)...................................................... 2.09, 4.01(c)
310(c)...................................................... Inapplicable
311(a)...................................................... 2.02(b)
311(b)...................................................... 2.02(b)
311(c)...................................................... Inapplicable
312(a)...................................................... 2.02(a)
312(b)...................................................... 2.02(b)
313......................................................... 2.03
314(a)...................................................... 2.04
314(b)...................................................... Inapplicable
314(c)...................................................... 2.05
314(d)...................................................... Inapplicable
314(f)...................................................... Inapplicable
315(a)...................................................... 3.01(c),
3.01(d)
315(b)...................................................... 2.07
315(c)...................................................... 3.01(c)
315(d)...................................................... 3.01(d)
316(a)...................................................... 2.08
----------
(1) This Cross-Reference Table does not constitute part of the Guarantee
and shall not affect the interpretation of any of its terms or provisions.
iii
This CLASS B PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Guarantee")
dated as of [DATE], is executed and delivered by ABN AMRO [BANK][HOLDING] N.V.,
a public limited liability company incorporated under the laws of The
Netherlands (the "Guarantor"), [__________], a [_______] corporation (the
"Initial Holder"), and [______], a [__________] corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the Initial Holder and any subsequent
holders from time to time of the Class B Preferred Securities (as defined
herein) of ABN AMRO Capital Funding LLC [______], a Delaware limited liability
company (the "Issuer" or the "Company").
WHEREAS, pursuant to an amended and restated limited liability company
agreement (the "LLC Agreement"), dated as of [DATE], among the Initial Common
Securityholder (as defined therein), [the Class A Preferred Securityholder], the
Initial Purchaser (as defined therein) and [_______], as manager trustee, the
Issuer is issuing on the date hereof [______] Noncumulative Guaranteed Class B
Preferred Securities, having an aggregate liquidation amount of $[____],
designated the [___]% Noncumulative Guaranteed Class B Preferred Securities (the
"Class B Preferred Securities"); and
WHEREAS, as incentive for the Initial Holder to purchase the Class B
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Initial Holder and any
subsequent Holders from time to time of the Class B Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the Initial Holder and
any subsequent Holder from time to time of Class B Preferred Securities, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee for the benefit of the Initial Holder and
any subsequent Holders from time to time of the Class B Preferred Securities.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions and Interpretation. In this Guarantee, unless
the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.01;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
(d) all references in this Guarantee to Articles and Sections are to
Articles and Sections of this Guarantee, unless otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
"Additional Amounts" means an amount paid as further Dividends in order
that the net amounts received by the Holders of the Class B Preferred Securities
after withholding or deduction of any Relevant Tax required by law equals the
amount which would have been received in respect of the Class B Preferred
Securities in the absence of such withholding or deduction, except that no
Additional Amounts are payable to a Holder of Class B Preferred Securities (or
to a third party on the Holder's behalf) with respect to any Class B Preferred
Securities (i) to the extent that such Relevant Tax is imposed or levied by
virtue of such Holder (or the beneficial owner of such Class B Preferred
Securities) having some connection with the Relevant Jurisdiction, other than
being a Holder (or beneficial owner) of such Class B Preferred Securities, (ii)
to the extent that such Tax is imposed or levied by virtue of such Holder (or
beneficial owner) not having made a declaration of non-residence in, or other
lack of connection with, the Relevant Jurisdiction or any similar claim for
exemption, if the Guarantor or its agent has provided the beneficial owner of
such Class B Preferred Security or its nominee with at least 60 days' prior
written notice of an opportunity to make such a declaration or claim, or (iii)
where such withholding or deduction is imposed on a payment to an individual and
is required to be made pursuant to any European Union Directive on the taxation
of savings implementing the conclusions of the ECOFIN Council meeting of 26-27
November 2000 or any law implementing or complying with, or introduced in order
to conform to, [or substantially similar to] such Directive.
"Administrative Action" means any judicial decision, official
administrative pronouncement, published or private ruling, regulatory procedure,
notice or announcement (including any notice or announcement of intent to adopt
such procedures or regulations).
"Affiliate" means, with respect to any specified person, any other person
that directly or indirectly controls or is controlled by, or is under common
control with, such specified person.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Bank" means ABN AMRO Bank N.V.
"Class A Preferred Securities" means the Class A Preferred Securities of
the Company.
2
"Company Common Securities" means the voting common securities
representing ownership interests in the Company.
"Corporate Trust Office" means the principal trust office of the Guarantee
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at [ADDRESS].
"Covered Person" means any Holder or beneficial owner of Class B Preferred
Securities.
"Dividends" means cash income distributions with respect to the Class B
Preferred Securities.
"Dividend Date" means the [_____] day of each [Month], [Month], [Month]
and [Month] of each year.
"Dividend Rate" means [______]% per annum.
"Dividend Period" means each period beginning on the date of original
issuance of the Class B Preferred Securities or on a Dividend Date and ending on
the day that precedes the next succeeding Dividend Date.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee.
"Guarantee Trustee" means [___________], a [_________] corporation, until
a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee by executing a counterpart
hereof and becoming a party hereto and thereafter means each such Successor
Guarantee Trustee.
"Holder" shall mean the Initial Holder or any subsequent holder, as
registered on the books and records of the Issuer, of any Class B Preferred
Securities; provided, however, that, in determining whether the holders of the
requisite percentage of Class B Preferred Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or
any Affiliate of the Guarantor.
"Holding" means ABN AMRO Holding N.V.
"Indemnified Person" means the Guarantee Trustee, the Initial Holder, any
Affiliate of the Guarantee Trustee, or any officer, director, shareholder,
member, partner, employee, representative, nominee, custodian or agent of the
Guarantee Trustee.
"Initial Intercompany Security" means the [SECURITY] issued by the [ISSUER
OF INITIAL INTERCOMPANY SECURITIES].
3
"Intercompany Securities" means the Initial Intercompany Security and,
upon maturity or redemption thereof, any successor intercompany securities that
will constitute the assets of the Company.
"Majority in liquidation amount of the Class B Preferred Securities"
means, except as provided by the Trust Indenture Act, a vote by Holder(s) of
Class B Preferred Securities, voting separately as a class, of more than 50% of
the liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Dividends to the
date upon which the voting percentages are determined) of all Class B Preferred
Securities.
"1940 Act" means the U.S. Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person.
"Ordinary Shares" means the ordinary shares of the Guarantor, any other
shares of the Guarantor's capital stock ranking junior to the Parity Preferred
Shares, if any, and any guarantees of the Guarantor ranking junior to the Parity
Guarantees and this Guarantee.
"Parity Guarantee" means [SPECIFIC GUARANTEES] and any other guarantee
issued by the Guarantor of any preferred securities or preferred or preference
shares issued by any subsidiary of the Guarantor, if such guarantee ranks pari
passu with the Guarantor's obligations under this Guarantee.
"Parity Preferred Shares" means the most senior ranking preferred or
preference shares issued by the Guarantor.
"Parity Securities" means, collectively, the Parity Guarantees, the Parity
Preferred Shares and the Parity Subsidiary Securities.
"Parity Subsidiary Securities" means any securities issued by a subsidiary
of the Guarantor guaranteed by the Guarantor under a Parity Guarantee.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Qualified Subsidiaries" means one or more subsidiaries of Holding or the
Bank which are deemed to be a "company controlled by the parent company" under
Rule 3a-5, as amended, of the 1940 Act.
4
"Relevant Jurisdiction" means The Netherlands and, during any period any
Intercompany Security other than the Initial Intercompany Security is
outstanding, the jurisdiction of residence of any obligor on any such
Intercompany Security.
"Relevant Tax" means any present or future taxes, duties, assessments or
governmental charges of whatever nature, imposed or levied by or on behalf of
any Relevant Jurisdiction or any authority therein or thereof having power to
tax.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee, including
any vice president, any assistant vice president, any secretary, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust" means any ABN AMRO Capital Funding Trust.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended.
"Trust Common Securities" means [COMMON SECURITIES] issued by a Trust.
"Trust Preferred Securities" means [PREFERRED SECURITIES] issued by a
Trust.
"Trust Securities" means Trust Preferred Securities and Trust Common
Securities.
ARTICLE 2
TRUST INDENTURE ACT
Section 2.01. Trust Indenture Act; Application. (a) This Guarantee is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Guarantee and shall, to the extent applicable, be governed by such
provisions. A term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee, unless otherwise defined in this Guarantee or unless the
context otherwise requires.
5
(b) If and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.02. Lists of Holders of Securities. (a) The Guarantee Trustee
shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of Class B Preferred
Securities. If the Guarantee Trustee is not the Registrar, the Guarantor shall
furnish to the Guarantee Trustee quarterly on or before the last day of March,
June, September, and December in each year, and at such other times as the
Guarantee Trustee may request in writing, a list, in such form and as of such
date as the Guarantee Trustee may reasonably require, containing all the
information in the possession or control of the Registrar, the Guarantor or any
of its paying agents other than the Guarantee Trustee as to the names and
addresses of Holders of Class B Preferred Securities.
(b) The Guarantee Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.03. Reports by the Guarantee Trustee. Within [60] days after
[DATE] of each year, the Guarantee Trustee shall provide to the Holders of the
Class B Preferred Securities (and, if and for so long as a Trust is the Holder
of the Class B Preferred Securities, also to the Holders of the Trust Preferred
Securities) such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
Section 2.04. Periodic Reports to Guarantee Trustee. The Guarantor shall
provide to the Guarantee Trustee such documents, reports and information as
required by Section 314 (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act. Delivery of such
reports, information and documents to the Guarantee Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Guarantor's compliance with any of
its covenants hereunder.
Section 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314 (c) (1) may be given in the form of an Officers' Certificate.
6
Section 2.06. Events of Default; Waiver. The Holders of a Majority in
liquidation amount of the Class B Preferred Securities may, by vote, on behalf
of the Holders of all of the Class B Preferred Securities, waive any past Event
of Default and its consequences except an Event of Default in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of each Holder of Class B Preferred Securities (and, if and for so long
as a Trust is the Holder of the Class B Preferred Securities, also of each
Holder of the Trust Securities). Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Guarantee, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
Section 2.07. Event of Default; Notice. (a) The Guarantee Trustee shall,
within 90 days after the occurrence of an Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Class B Preferred Securities
(and, if and for so long as a Trust is the Holder of the Class B Preferred
Securities, also to the Holders of the Trust Securities) notices of all Events
of Default actually known to a Responsible Officer of the Guarantee Trustee,
unless such defaults have been cured before the giving of such notice, provided,
that, the Guarantee Trustee shall be protected in withholding such notice if and
so long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Class B Preferred Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless a Responsible Officer of the Guarantee Trustee shall
have received written notice, or a Responsible Officer of the Guarantee Trustee
charged with the administration of the Guarantee shall have obtained actual
knowledge, of such Event of Default.
Section 2.08. Rights of Holders. (a) The Holders of a Majority in
liquidation amount of the Class B Preferred Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee.
(b) If the Guarantee Trustee fails to enforce its rights under the
Guarantee after a Holder of Class B Preferred Securities has made a written
request, such Holder of Class B Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce the Guarantee Trustee's
rights under Article 5 of this Guarantee, without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other person or
entity. Notwithstanding the foregoing, if the Guarantor has failed to make a
Guarantee Payment, a Holder of Class B Preferred Securities may directly
institute a proceeding in such Holder's own name against the Guarantor for
enforcement of Article 5 of this Guarantee for such payment.
7
(c) If, and for so long as, a Trust is the Holder of Class B Preferred
Securities, and any Trust Preferred Securities remain outstanding, a Holder of
Trust Securities may exercise directly any right or power of Holder of Class B
Preferred Securities under this Section 2.08.
Section 2.09. Conflicting Interests. The LLC Agreement shall be deemed to
be specifically described in this Guarantee for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
Section 3.01. Powers, Duties and Rights of Guarantee Trustee. (a) This
Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders
of the Class B Preferred Securities, and the Guarantee Trustee shall not
transfer this Guarantee to any Person except a Holder of Class B Preferred
Securities exercising his or her rights pursuant to Section 2.08(b) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of
its appointment to act as Successor Guarantee Trustee. The right, title and
interest of the Guarantee Trustee shall automatically vest in any Successor
Guarantee Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of the
Guarantee Trustee has occurred and is continuing, the Guarantee Trustee shall
enforce this Guarantee for the benefit of the Holders of the Class B Preferred
Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee, and no implied covenants shall be read into this Guarantee
against the Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06 and is actually known to a
Responsible Officer of the Guarantee Trustee), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Guarantee, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except that:
8
(i) Prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee,
and the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Guarantee, and no implied covenants or obligations
shall be read into this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirements of this Guarantee (but need not confirm or investigate
the accuracy of any mathematical calculations or other facts stated
therein);
(ii) The Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was grossly
negligent in ascertaining the pertinent facts upon which such judgment was
made;
(iii) The Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a Majority in liquidation amount of the
Class B Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Guarantee
Trustee, or the exercise of any trust or power conferred upon the
Guarantee Trustee under this Guarantee; and
(iv) No provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability, or indemnity, satisfactory to the Guarantee Trustee, against
such expense, risk or liability, is not assured to it under the terms of
this Guarantee.
9
Section 3.02. Certain Rights of Guarantee Trustee. (a) Subject to the
provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively rely, and shall be fully
protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee shall be sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof).
(v) The Guarantee Trustee may, at the expense of the Guarantor,
consult with counsel of its selection, and the advice or opinion of such
counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such advice
or opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Guarantee from any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee at the request
or direction of any Holder, unless such Holder shall have provided to the
Guarantee Trustee such security and indemnity, satisfactory to the
Guarantee Trustee, against the costs, expenses (including attorneys' fees
and expenses and the expenses of the Guarantee Trustee's agents, nominees
or custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as may
be requested by the Guarantee Trustee; provided, that nothing contained in
this Section 3.02(a)(vi) shall be taken to relieve the
10
Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Guarantee.
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit but shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(viii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the Guarantee Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Class B Preferred Securities, and
the signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party shall
be required to inquire as to the authority of the Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of this
Guarantee, both of which shall be conclusively evidenced by the Guarantee
Trustee or its agent taking such action.
(x) Whenever in the administration of this Guarantee the Guarantee
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (i) may request written instructions from the Holders of
a Majority in liquidation amount of the Class B Preferred Securities, (ii)
may refrain from enforcing such remedy or right or taking such other
action until such written instructions are received and (iii) shall be
protected in conclusively relying on or acting in accordance with such
written instructions.
(xi) The Guarantee Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Guarantee.
(b) No provision of this Guarantee shall be deemed to impose any duty or
obligation on the Guarantee Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or
11
to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed to be a duty.
Section 3.03. Not Responsible for Recitals or Issuance of Guarantee. The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as to the
validity or sufficiency of this Guarantee.
ARTICLE 4
GUARANTEE TRUSTEE
Section 4.01. Guarantee Trustee; Eligibility. (a) There shall at all times
be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State thereof or of the District of
Columbia, or a corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination by
Federal, State or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to
above, then, for the purposes of this Section 4.01(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.01(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.02. Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.02(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor except during an Event of
Default.
12
(b) The Guarantee Trustee shall not be removed in accordance with Section
4.02(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery of an instrument of removal or resignation, the Guarantee Trustee
resigning or being removed may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act
of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.02, and before the appointment of
any Successor Guarantee Trustee, the Guarantor shall pay to the Guarantee
Trustee all amounts to which it is entitled to the date of such termination,
removal or resignation.
ARTICLE 5
GUARANTEE
Section 5.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees, subject to the limitations set forth in this Guarantee, to pay in full
to the Initial Holder and each subsequent Holder from time to time, whether such
rights under this Guarantee are asserted by the Guarantee Trustee or directly by
any such Holder (without duplication of amounts theretofore paid by the Issuer),
if, as and when due, regardless of any defense, right of setoff or counterclaim
that the Issuer may have or assert:
(i) any accumulated but unpaid Dividends on the Class B Preferred
Securities, whether declared by the Issuer or deemed declared pursuant to
Section 5.02 hereof, plus Additional Amounts thereon, if any;
13
(ii) the $[___] redemption price per each Class B Preferred Security
called for redemption by the Issuer, plus an amount equal to any
accumulated and unpaid Dividends thereon for the then current Dividend
Period through the date of redemption, on the Class B Preferred
Securities, plus Additional Amounts thereon, if any (the "Redemption
Price"); and
(iii) the $[___] liquidation amount per each Class B Preferred
Security upon any voluntary or involuntary dissolution, liquidation or
winding up of the Issuer, plus Additional Amounts thereon, if any;
(collectively, the "Guarantee Payments"); provided that, in the event of an
insolvency of the Guarantor, the Guarantee Payments payable under this Section
5.01 shall be reduced by an amount equal to (A) the amount of Guarantee Payments
payable under this Section 5.01 without giving effect to this proviso multiplied
by (B) a fraction, (x) the numerator of which is the aggregate portion of all
claims under the Parity Preferred Shares and the Parity Guarantees determined to
be payable out of the remaining assets of the Guarantor in such insolvency after
giving effect to this proviso and the similar terms of any Parity Guarantee and
(y) the denominator of which is the aggregate principal or face amount of such
claims. All Guarantee Payments shall include interest accrued on such Guarantee
Payments, at a rate per annum equal to the stated Dividend rate of the Class B
Preferred Securities, since the date of the claim asserted under this Guarantee
relating to such Guarantee Payments.
The Guarantor's obligation to make any of the payments listed in (i)
through (iii) above may be satisfied by direct payment of the required amounts
by the Guarantor to the Holders or by causing the Issuer to pay such amounts to
the Holders.
Section 5.02. Delivery of Guarantor Certificate; Dividends Deemed
Declared. (a) As of each Dividend Date with respect to which the Issuer has not
paid Dividends in full at the Dividend Rate, the Guarantor shall deliver an
Officers' Certificate to the Guarantee Trustee substantially in the form
attached as Exhibit A hereto (the "Guarantor Certificate"); provided that
failure to deliver the Guarantor Certificate on or prior to any Dividend Date
with respect to which the Issuer has not paid Dividends in full at the Dividend
Rate, shall not constitute an Event of Default but shall result in Dividends on
all the Class B Preferred Securities then outstanding being deemed declared in
full at the Dividend Rate on such Dividend Date for the purposes of Section
5.01(i) hereof.
(b) If on any Dividend Date (i) the Issuer has not paid Dividends in full
at the Dividend Rate and (ii) the Guarantor or any of its subsidiaries has
redeemed, repurchased or otherwise acquired (other than (I) in connection with
transactions effected by or for the account of customers of the Guarantor or any
of its subsidiaries or in connection with the distribution, trading or
market-making in respect of such securities, (II) in connection with the
satisfaction by the Guarantor or any of its subsidiaries of its obligations
under any employee benefit plans or
14
similar arrangements with or for the benefit of employees, officers, directors
or consultants, (III) as a result of a reclassification of the capital stock of
the Guarantor or any of its subsidiaries or the exchange or conversion of one
class or series of such capital stock for another class or series of such
capital stock or (IV) the purchase of fractional interests in shares of the
capital stock of the Guarantor or any of its subsidiaries pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) for any consideration (or moneys have been paid to or
made available for a sinking fund or for redemption of any such shares) any
Ordinary Shares or any Parity Securities during the twelve month period
immediately preceding and including such Dividend Date, then Dividends will be
deemed declared in full at the Dividend Rate on such Dividend Date for the
purposes of Section 5.01(i) hereof.
(c) If on any Dividend Date (i) the Issuer has not paid Dividends in full
at the Dividend Rate and (ii) the Guarantor or any of its subsidiaries has
declared or made a dividend or other payment in respect of the Ordinary Shares
that pay dividends annually during the twelve month period immediately preceding
and including such Dividend Date, then Dividends will be deemed declared in full
at the Dividend Rate on such Dividend Date for the purposes of Section 5.01(i)
hereof.
(d) If on any Dividend Date (i) the Issuer has not paid Dividends in full
at the Dividend Rate and (ii) the Guarantor or any of its subsidiaries has
declared or made a dividend or other payment in respect of any Ordinary Shares
that pay dividends semi-annually during the six month period immediately
preceding and including such Dividend Date, then Dividends will be deemed
declared in full at the Dividend Rate on such Dividend Date for the purposes of
Section 5.01(i) hereof.
(e) If on any Dividend Date (i) the Issuer has not paid Dividends in full
at the Dividend Rate and (ii) the Guarantor or any of its subsidiaries has
declared or made a dividend or other payment in respect of any Ordinary Shares
that pay dividends quarterly during the three month period immediately preceding
and including such Dividend Date, then Dividends will be deemed declared in full
at the Dividend Rate on such Dividend Date for the purposes of Section 5.01(i)
hereof.
(f) If on any Dividend Date (i) the Issuer has not paid Dividends in full
at the Dividend Rate and (ii) the Guarantor or any of its subsidiaries has
declared or made a dividend or other payment in respect of Parity Securities
that pay dividends annually during the twelve month period immediately preceding
and including such Dividend Date, either in full or at a percentage of a
dividend rate stated thereon, as set forth in paragraph 8 of the Guarantor
Certificate delivered as of such Dividend Date, then Dividends will be deemed
declared in full at the Dividend Rate or pro rata in accordance with Section
5.02(j) hereof, as the case may be, on such Dividend Date for the purposes of
Section 5.01(i) hereof.
15
(g) If on any Dividend Date (i) the Issuer has not paid Dividends in full
at the Dividend Rate and (ii) the Guarantor or any of its subsidiaries has
declared or made a dividend or other payment in respect of the Parity Securities
that pay dividends semi-annually during the six month period immediately
preceding and including such Dividend Date, either in full or at a percentage of
a dividend rate stated thereon, as set forth in paragraph 9 of the Guarantor
Certificate delivered as of such Dividend Date, then Dividends will be deemed
declared in full at the Dividend Rate or pro rata in accordance with Section
5.02(j) hereof, as the case may be, on such Dividend Date for the purposes of
Section 5.01(i) hereof.
(h) If on any Dividend Date (i) the Issuer has not paid Dividends in full
at the Dividend Rate and (ii) the Guarantor or any of its subsidiaries has
declared or made a dividend or other payment in respect of the Parity Securities
that pay dividends quarterly during the three month period immediately preceding
and including such Dividend Date, either in full or at a percentage of a
dividend rate stated thereon, as set forth in paragraph 10 of the Guarantor
Certificate delivered as of such Dividend Date, then Dividends will be deemed
declared in full at the Dividend Rate or pro rata in accordance with Section
5.02(j) hereof, as the case may be, on such Dividend Date for the purposes of
Section 5.01(i) hereof.
(i) The amount of Dividends declared or deemed declared for purposes of
Section 5.01(i) hereof on all the Class B Preferred Securities then outstanding
with respect to any Dividend Date shall be equal to the greater of (i) the
amount of Dividends declared on such Dividend Date by the Company or (ii) the
amount of Dividends deemed declared on such Dividend Date pursuant to subsection
(a), (b), (c), (d), (e), (f), (g), or (h) hereof.
(j) In the event that Dividends are deemed declared on any Dividend Date
pursuant to this Section 5.02 pro rata with dividends and other payments on the
Parity Securities, such Dividends shall be deemed declared in proportion that
the aggregate amount available for payment of dividends on the Class B Preferred
Securities and the Parity Securities in the fiscal year in which such Dividend
Date falls bears to the aggregate full amount of stated dividends on the Class B
Preferred Securities and the Parity Securities payable in such fiscal year. If
Dividends are deemed declared on a pro rata basis, the Guarantor will select, in
its sole discretion, the date of the applicable market exchange rate to make the
calculations described above.
Section 5.03. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Guarantee and of any liability to which it applies
or may apply, presentment, demand for payment, any right to require a proceeding
first against the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 5.04. Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee shall in no way be
16
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Class B Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Dividends, Redemption Price, liquidation preference or any other
sums payable under the terms of the Class B Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Class B Preferred Securities; provided that
nothing in this Guarantee shall affect or impair any valid extension;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Class B Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Class B Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.04 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.05. Action Against Guarantor. The Guarantor waives any right or
remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
Section 5.06. Independent Obligations. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer with
respect to the Class B Preferred Securities, and that the Guarantor shall be
liable
17
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee notwithstanding the occurrence of any event referred to
in subsections (a) through (g), inclusive, of Section 5.04 hereof.
Section 5.07. Taxes. All payments in respect of the Guarantee Payments
(including interest accrued thereon, if any) by the Guarantor shall be made
without withholding or deduction for or on account of any Relevant Tax, unless
the withholding or deduction of such Relevant Tax is required by law. In that
event, the Guarantor shall pay, as further Guarantee Payments, such additional
amounts as may be necessary in order that the net amounts received by a Holder
(or a third party on its behalf) after such withholding or deduction will equal
the amount which would have been received in respect of the Guarantee Payments
(including interest accrued thereon, if any) in the absence of such withholding
or deduction ("Guarantee Additional Amounts"), except that no such Guarantee
Additional Amounts shall be payable to a Holder (or a third party on its behalf)
with respect to any Guarantee Payments (including interest accrued thereon, if
any) (i) to the extent that such Relevant Tax is imposed or levied by virtue of
such Holder (or the beneficial owner of Class B Preferred Securities to which
such Guarantee Payments relate) having some connection with the Relevant
Jurisdiction, other than being a Class B Securityholder (or beneficial owner of
such Class B Preferred Securities), (ii) to the extent that such the Relevant
Tax is imposed or levied by virtue of such Class B Preferred Securityholder (or
beneficial owner) not having made a declaration of non-residence in, or other
lack of connection with, the Relevant Jurisdiction or any similar claim for
exemption, if the Guarantor or its agent has provided the beneficial owner of
such Class B Preferred Securities or its nominee with at least 60 days' prior
written notice of any opportunity to make such a declaration or claim, or (iii)
where such withholding or deduction is imposed on a payment to an individual and
is required to be made pursuant to any European Union Directive on the taxation
of savings implementing the conclusions of the ECOFIN Council meeting of 26-27
November 2000 or any law implementing or complying with, or introduced in order
to conform to, [or substantially similar to] such Directive.
Section 5.08. Article 6:251 of DCC. This Guarantee is a guarantee for the
benefit of each Holder from time to time of Class B Preferred Securities with
respect to each Class B Preferred Security held by such Holder. Upon transfer of
any Class B Preferred Securities to a third party, a Holder thereof shall no
longer have any rights hereunder with respect to such Class B Preferred
Securities. The rights under this Guarantee with respect to a Class B Preferred
Security are not separately transferable from such Class B Preferred Security.
The Initial Holder, by its execution of this Guarantee, hereby accepts the
rights under this Guarantee as initial purchaser of the Class B Preferred
Securities with the understanding that such rights shall be transferred by
operation of law to any subsequent Holder acquiring a Class B Preferred Security
from the Initial Holder or from a subsequent Holder. It is specifically intended
by the parties hereto that the rights under this Guarantee with respect to a
Class B Preferred Security shall be
18
transferred by operation of law under Article 6:251 of the Dutch Civil Code
("DCC") to a subsequent Holder of that Class B Preferred Security.
Section 5.09. Article 6:253 of DCC. It is hereby irrevocably agreed and
stipulated, for free ("om niet" in the sense of the article referred to), by way
of third party stipulation ("derdenbeding") in the meaning of Article 6:253 of
DCC, for the benefit of each Holder (whether present or future) of a Class B
Preferred Security that, to the extent that any such Holder should not become
entitled to the rights under this Guarantee with respect to that Class B
Preferred Security (whether by operation of Article 6:251 of DCC as referred to
in Section 5.08 hereof or otherwise), such Holder shall become a beneficiary of
the rights under (and accordingly a party to) this Guarantee as set forth in
Article 6:253 of DCC upon having become a Holder of such Class B Preferred
Security (unless such Holder has rejected such stipulation without delay upon
having become aware of it).
ARTICLE 6
LIMITATION OF TRANSACTIONS; RANKING
Section 6.01. Limitation of Transactions. (a) The Guarantor, for so long
as any Class B Preferred Securities remain outstanding, shall not issue any
preferred or preference shares ranking senior on liquidation to its obligations
under this Guarantee or give any guarantee in respect of any preferred
securities or preferred or preference shares issued by any of its subsidiaries
if such guarantee would rank senior to this Guarantee, unless this Guarantee is
amended to give the Holders of the Class B Preferred Securities such rights and
entitlements as are contained in or attached to such other guarantee so that
this Guarantee ranks pari passu with such guarantee and pari passu on
liquidation with any declared dividend or declared liquidation payments of such
preferred or preference shares.
(b) The Guarantor shall pay all amounts required to be paid pursuant to
this Guarantee in respect of any Dividends on the Class B Preferred Securities
payable in respect of the most recent Dividend Period prior to any dividend or
other payment (except dividends in the form of the Ordinary Shares) upon the
Ordinary Shares (whether issued directly or by a subsidiary of the Guarantor and
entitled to the benefits of a guarantee ranking junior to this Guarantee).
(c) The Guarantor, for so long as any Class B Preferred Securities remain
outstanding, shall maintain, or shall cause [the Bank or] any one or more
Qualified Subsidiaries (each, a "Potential Securityholder") to maintain, 100%
ownership of the Company Common Securities. The Guarantor may transfer and
permit the transfer of the Company Common Securities from one Potential
Securityholder to another Potential Securityholder, provided that prior to such
transfer it has received an opinion of a nationally recognized law firm
experienced in such matters to the effect that (A) the Company will continue to
be treated as a
19
partnership for United States federal income tax purposes and such transfer will
not cause the Company to be classified as an association or publicly traded
partnership taxable as a corporation for United States federal income tax
purposes, (B) such transfer will not cause the Company or, where a Trust is the
Holder of Class B Preferred Securities, the Trust to be required to register
under the 1940 Act and (C) such transfer will not adversely affect the limited
liability of the Holders of the Class B Preferred Securities.
(d) The Guarantor for so long as any Class B Preferred Securities remain
outstanding, (i) shall cause the [CLASS A PREFERRED SECURITYHOLDER] to maintain
100% ownership of the Class A Preferred Securities, (ii) shall cause the Company
to remain a limited liability company, (iii) shall use its commercially
reasonable efforts to ensure that the Company will not be an association or a
publicly traded partnership taxable as a corporation for United States federal
income tax purposes, (iv) shall cause the Company to remain a limited liability
company and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by the LLC Agreement, and (v) where a Trust is the Holder of
Class B Preferred Securities, shall use its commercially reasonable efforts to
ensure that the Trust will not be classified as other than a grantor trust for
United States federal income tax purposes.
(e) The Guarantor, for so long as any of the Class B Preferred Securities
are outstanding, shall not permit, or take any action to cause, the dissolution,
liquidation, termination or winding up of the Company, unless the Guarantor is
itself in liquidation and the approval of the Dutch Central Bank, if then
required, to such action has been received.
(f) If a Trust is the Holder of Class B Preferred Securities, and if the
Class B Preferred Securities are distributed to Holders of Trust Preferred
Securities in connection with the involuntary or voluntary dissolution,
winding-up or liquidation of the Trust, the Guarantor shall use its commercially
reasonable efforts to cause the Class B Preferred Securities to be listed on the
[New York Stock Exchange], the [Luxembourg Stock Exchange] or on such other
national securities exchange or similar organization as the Trust Preferred
Securities are then listed or quoted on.
Section 6.02. Ranking. This Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to indebtedness of the Guarantor (other than any guarantee or
contractual right expressed to rank pari passu with or junior to this
Guarantee), (ii) pari passu with the Guarantor's obligations under the Parity
Guarantees, and (iii) senior to the Ordinary Shares. Any guarantee given
hereafter by the Guarantor with respect to preferred securities issued by a
subsidiary of the Guarantor and treated as Tier 1 regulatory capital by the
Guarantor that is silent as to seniority will rank pari passu with this
Guarantee.
20
ARTICLE 7
TERMINATION
Section 7.01. Termination. This Guarantee shall terminate upon, and be of
no further force and effect from the earlier of (i) full payment of the
Redemption Price of all Class B Preferred Securities or purchase and
cancellation of all Class B Preferred Securities or (ii) upon full payment of
the $[____] liquidation amount, plus any accumulated and unpaid Dividends
thereon, plus Additional Amounts thereon, if any, as payable upon liquidation of
the Issuer. Notwithstanding the foregoing, this Guarantee will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Class B Preferred Securities must restore payment of any sums paid under the
Class B Preferred Securities or under this Guarantee for any reason whatsoever.
ARTICLE 8
INDEMNIFICATION
Section 8.01. Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, liability, expense, damage or claim incurred by
reason of any act or omission performed or omitted by such Indemnified Person in
good faith in accordance with this Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, liability, expense, damage
or claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Dividends to Holders of Class B Preferred Securities might properly be
paid.
Section 8.02. Indemnification. The Guarantor agrees to indemnify each
Indemnified Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred without gross
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify
21
as set forth in this Section 8.02 shall survive the termination of this
Guarantee or the earlier resignation or removal of the Guarantee Trustee.
ARTICLE 9
MISCELLANEOUS
Section 9.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Class B Preferred Securities then outstanding.
Section 9.02. Amendments. Except for those changes (i) required under
Section 6.01 above or (ii) provided for in the two penultimate sentences of this
paragraph, this Guarantee may be modified by the Guarantor and the Guarantee
Trustee only with the prior approval of the Holders of not less than 662/3% in
liquidation amount of the Class B Preferred Securities (excluding any Class B
Preferred Securities held by the Guarantor or any of its Affiliates, other than
Class B Preferred Securities purchased or acquired by the Guarantor or its
Affiliates in connection with transactions effected by or for the account of
customers of the Guarantor or any of its Affiliates in connection with the
distribution or trading of or market-making in connection with such securities
and except that persons (other than Affiliates of the Guarantor) to whom the
Guarantor or any of its Affiliates have pledged Class B Preferred Securities may
vote or convert with respect to such pledged securities pursuant to the terms of
such pledge). This Guarantee may be amended without the consent of the Holders
of the Class B Preferred Securities to (i) cure any ambiguity, (ii) correct or
supplement any provision in this Guarantee that may be defective or inconsistent
with any other provision of this Guarantee, (iii) add to the covenants,
restrictions or obligations of the Guarantor, (iv) conform to any change in the
1940 Act, the Trust Indenture Act or the rules or regulations of either such Act
and (v) modify, eliminate and add to any provision of this Guarantee to such
extent as may be necessary or desirable; provided that no such amendment shall
have a material adverse effect on the rights, preferences or privileges of the
Holders of the Class B Preferred Securities. Sections 5.01, 5.02, 5.07 and the
form of Exhibit A hereto may not be amended without the prior approval of the
Holders of 100% in liquidation amount of the Class B Preferred Securities. Any
amendment hereof in accordance with this Section 9.02 shall be binding on all
Holders.
Section 9.03. Judgment Currency Indemnity. (a) If, for the purposes of
obtaining judgment in any court, it is necessary to convert an amount due from
the Guarantor under any provision of this Guarantee to a currency other than
U.S. Dollars, the parties agree, to the fullest extent that they may effectively
do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Guarantee Trustee could purchase such other
currency
22
with U.S. Dollars at its New York office on the second Business Day preceding
the day on which final judgment is given.
(b) The obligations of the Guarantor in respect of any amount due to the
Guarantee Trustee or any Holders under this Agreement shall, notwithstanding any
judgment in a currency other than U.S. Dollars, be discharged only to the extent
that on the Business Day following receipt by the Guarantee Trustee or such
Holders, as the case may be, of any amount adjudged to be so due in such other
currency the Guarantee Trustee or such Holders, as the case may be, may in
accordance with normal banking procedures purchase U.S. Dollars with such other
currency.
(c) If the amount of U.S. Dollars so purchased is less than the amount
originally due to the Guarantee Trustee or such Holders, as the case may be, in
U.S. Dollars, the Guarantor agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify the Guarantee Trustee or such Holders, as the case may
be, against such loss.
(d) If the amount of Dollars so purchased exceeds the amount originally
due to the Guarantee Trustee or such Holders, as the case may be, in U.S.
Dollars, agree to remit any remaining amount to the Guarantor.
Section 9.04. Assignment of the Guarantor. The Guarantor will not assign
its obligations under the Guarantee, except in the case of a merger,
consolidation or a sale of substantially all of its assets, where the Guarantor
is not the surviving entity.
Section 9.05. Notices. All notices provided for in this Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below:
[ADDRESS]
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Class B Preferred Securities):
ABN AMRO [Bank][Holding] N.V.
Xxxxxx Xxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Group Asset and Liability Management
Fax: x00 00 000 00 00
23
(c) If given to any Holder of Class B Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 9.06. Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE NETHERLANDS,
EXCEPT THAT ARTICLES 2, 3 AND 4, AND THE DEFINITIONS OF TERMS AS USED THEREIN,
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
Section 9.07. Jurisdiction. Any claim or proceeding brought by the
Guarantee Trustee on behalf of Holders or a Holder to enforce the obligations
of the Guarantor hereunder shall be brought in a court of competent
jurisdiction in Amsterdam, The Netherlands. Any claim or proceeding relating to
the application of Articles 2, 3, 4, and the definitions of terms as used
therein, including, without limitation, any claims, counter-claims and
cross-claims asserted against the Guarantee Trustee in connection therewith,
shall be brought in a court of competent jurisdiction in the State of New York.
24
THIS GUARANTEE is executed as of the day and year first above written.
ABN AMRO [BANK][HOLDING] N.V.,
as Guarantor
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
[_________________],
as Guarantee Trustee
By:
------------------------------
Name:
Title:
[_________________],
as Initial Holder
By:
------------------------------
Name:
Title:
EXHIBIT A
ABN AMRO [BANK][HOLDING] N.V.
OFFICERS' CERTIFICATE
[March 31], [June 30], [September 30], [December 31],(1) __________
The undersigned, [name of Authorized Officer], [title of Authorized
Officer], and [name of Authorized Officer], [title of Authorized Officer], of
ABN AMRO [Bank][Holding] N.V., a public limited liability company incorporated
under the laws of The Netherlands (the "Company"), pursuant to Section 5.02 of
the Guarantee Agreement dated as of _____, _____ (the "Guarantee"), executed
and delivered by the Company, as guarantor, __________, as initial holder, and
_________, as trustee, for the benefit of the Holders from time to time of the
_____% Noncumulative Guaranteed Class B Preferred Securities (the "Class B
Preferred Securities") of ABN AMRO Capital Funding LLC _____, do hereby certify
as of the date hereof on behalf of the Company as follows (capitalized terms
used herein without definitions have the meanings assigned to them in the
Guarantee):
1. We have read and are familiar with the provisions of the Guarantee
(including, without limitation, Section 5.02 thereof) and all definitions
therein.
2. We have reviewed all corporate documents necessary to state the facts
contained herein and are duly authorized to certify to those facts.
3. In our opinion, we have made such examination or investigation as is
necessary to enable us to express an informed opinion as to the facts certified
herein.
4. [Neither][Either](1) the Company [nor][or](1) any of its subsidiaries
has redeemed, repurchased or otherwise acquired (other than (I) in connection
with transactions effected by or for the account of customers of the Guarantor
or any of its subsidiaries or in connection with the distribution, trading or
market-making in respect of such securities, (II) in connection with the
satisfaction by the Guarantor or any of its subsidiaries of its obligations
under any employee benefit plans or similar arrangements with or for the
benefit of employees, officers, directors or consultants, (III) as a result of
a reclassification of the capital stock of the Guarantor or any of its
subsidiaries or the exchange or conversion of one class or series of such
capital stock for another class or series of such capital stock or (IV) the
purchase of fractional interests in shares of the capital stock of the
Guarantor or any of its subsidiaries pursuant to the conversion or exchange
----------
(1) Delete, if not applicable.
provisions of such capital stock or the security being converted or exchanged)
for any consideration (and moneys [have][have not](2) been paid to or made
available for a sinking fund or for redemption of any such shares) any Ordinary
Shares or any Parity Securities during the twelve month period immediately
preceding and including the date hereof.
5. [Neither][Either](2) the Company [nor][or](2) any of its subsidiaries
has declared or made a dividend or other payment in respect of the Ordinary
Shares that pay dividends annually, if any, during the twelve month period
immediately preceding and including the date hereof.
6. [Neither][Either](2) the Company [nor][or]2 any of its subsidiaries has
declared or made a dividend or other payment in respect of the Ordinary Shares
that pay dividends semi-annually, if any, during the six month period
immediately preceding and including the date hereof.
7. [Neither][Either](2) the Company [nor][or](2) any of its subsidiaries
has declared or made a dividend or other payment in respect of the Ordinary
Shares that pay dividends quarterly, if any, during the three month period
immediately preceding and including the date hereof.
8. (a) [Neither][Either](2) the Company [nor][or](2) any of its
subsidiaries has declared or made a dividend or other payment in respect of the
Parity Securities that pay dividends annually, if any, during the twelve month
period immediately preceding and including the date hereof.
(b) A dividend or other payment in respect of the Parity Securities that
pay dividends annually, if any, was declared or made [in full](2) [at __% of the
stated dividend rate for such Parity Securities].(3)
9. (a) [Neither][Either](2) the Company [nor][or](2) any of its
subsidiaries has declared or made a dividend or other payment in respect of its
Parity Securities that pay dividends semi-annually, if any, during the six
month period immediately preceding and including the date hereof.
(b) A dividend or other payment in respect of the Parity Securities that
pay dividends semi-annually, if any, was declared or made [in full](4) [at __%
of the stated dividend rate for such Parity Securities].(5)
----------
(2) Delete, if not applicable.
(3) To be filled in only if a dividend or other payment was declared or
made on the Parity Securities that pay dividends annually.
(4) Delete, if not applicable.
A-2
10. (a) [Neither][Either](4) the Company [nor][or](4) any of its
subsidiaries has declared or made a dividend or other payment in respect of the
Parity Securities that pay dividends quarterly, if any, during the three month
period immediately preceding and including the date hereof.
(b) A dividend or other payment in respect of the Parity Securities that
pay dividends quarterly, if any, was declared or made [in full](4) [at __% of
the stated dividend rate for such Parity Securities.](6)
IN WITNESS WHEREOF, the undersigned have duly executed as of the date
first set forth above.
ABN AMRO [BANK][HOLDING] N.V.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
----------
(5) To be filled in only if a dividend or other payment was declared or
made on the Parity Securities that pay dividends semi-annually.
(6) To be filled in only if a dividend or other payment was declared or
made on the Parity Securities that pay dividends quarterly.
A-3
