EXHIBIT 1.b
ABN AMRO BANK N.V.
Global Medium-Term Notes, Series A
U.S. DISTRIBUTION AGREEMENT
o, 2002
To the Agents listed on the
signature page hereof
Dear Sirs and Mesdames:
ABN AMRO Bank N.V., a public limited liability company incorporated under
the laws of The Netherlands (the "Bank"), confirms its agreement with the
Agents with respect to the issue and sale from time to time by the Bank
primarily inside the United States (each, an "offering") of up to
$2,073,000,000 (or the equivalent thereof in one or more foreign currencies)
aggregate initial public offering price of its Global Medium-Term Notes, Series
A, due more than 9 months from the date of issue (the "Notes"), subject to
reduction as a result of the sale by the Bank of (i) Global Medium-Term Notes,
Series B, to be sold primarily outside the United States, and (ii) any other
debt securities sold pursuant to the Bank's Registration Statement No. 333-o
The Notes will be issued as senior indebtedness of the Bank pursuant to
the provisions of an indenture dated as of November 27, 2000, between the Bank
and JPMorgan Chase Bank, formerly The Chase Manhattan Bank, as trustee (the
"Trustee") (as may be supplemented or amended from time to time, the
"Indenture").
The Notes will have the maturities, interest rates, redemption provisions,
if any, and other terms as set forth in supplements to the Base Prospectus
referred to below.
For each offering of the Notes, the Bank will appoint, pursuant to a
Selling Agency Invitation (substantially in the form of Exhibit A), some or all
of the Agents as the Bank's exclusive selling agents for the purposes of
soliciting and receiving offers to purchase Notes from the Bank 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 2(b) hereof.
The Bank has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto, as amended
at the Commencement Date (as hereinafter defined), is hereinafter referred to
as the "Registration Statement." The Bank proposes to file with the Commission
from time to time, pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"), supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Base Prospectus." The term "Prospectus" means
the Base Prospectus together with the prospectus supplement or supplements
(each a "Prospectus Supplement") specifically relating to the Notes, as filed
with, or transmitted for filing to, the Commission pursuant to Rule 424. As
used herein, the terms "Base Prospectus" and "Prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Base Prospectus by the Bank with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). If the Bank has filed an abbreviated registration statement to
register additional Notes pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement.
1. Representations and Warranties. The Bank represents and warrants to and
agrees 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), as of each date the Bank issues and delivers Notes and as of each
date the Registration Statement or the Base Prospectus is amended or
supplemented, as follows (it being understood that such representations,
warranties and agreements shall be deemed to relate to the Registration
Statement, the Base Prospectus and the Prospectus, each as amended or
supplemented to each such date):
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(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in
this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to you
furnished to 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 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.
(c) The Bank has been duly created and is validly existing as a limited
liability company incorporated under the laws of The Netherlands and has the
power and authority (corporate and other) to own its properties and conduct its
businesses as described in the Prospectus.
(d) Each subsidiary of the Bank has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation (where such legal concept has relevance), has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires qualification, except to the
extent that the failure to be so
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qualified or be in good standing would not have a material adverse effect on
the Bank and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Terms Agreement (as
hereinafter defined) has been duly authorized, executed and delivered by the
Bank.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Bank and is a valid
and binding agreement of the Bank, 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.
(g) The forms of Notes 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, the Notes will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Bank, enforceable in accordance with their respective terms
except as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general principles
of equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(h) The execution and delivery by the Bank of this Agreement, the Notes,
the Indenture and any applicable Written Terms Agreement and the performance by
the Bank of its 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 the Bank or any agreement or other
instrument binding upon the Bank or any of its subsidiaries that is material to
the Bank and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Bank or any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Bank of its 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.
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(i) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Bank and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(j) There are no legal or governmental proceedings pending or threatened
to which the Bank or any of its subsidiaries is a party or to which any of the
properties of the Bank or any of its subsidiaries is subject that are required
to be described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed or incorporated by reference as exhibits to the Registration Statement
that are not described, filed or incorporated as required.
(k) Each of the Bank and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and
has 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 its properties and assets and
to conduct its business in the manner described in the Prospectus, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Bank and its subsidiaries, taken as a whole.
(l) Each of ABN AMRO Incorporated, ABN AMRO Rothschild LLC, and ABN AMRO
Financial Services, Inc. is registered as a broker-dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the National Association of Securities Dealers, Inc.
(m) The Bank is not, 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 not be required to register as, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
Notwithstanding the foregoing, it is understood and agreed that the
representations and warranties set forth in Section 1(b)(ii), (iii) and (iv)
and 1(g) (except as to due authorization of the Notes) and 1(h), 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 prices, securities
of entities unaffiliated with the Bank, 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.
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2. 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 Prospectus 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, the
Bank shall not be required to deliver any certificates, opinions or letters in
accordance with Sections 5(a), 5(b) and 5(c); provided, however, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for (i) a change in the interest rates, redemption provisions or maturities
offered on 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 has 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 1% 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 Prospectus
Supplement 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).
(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
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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 herein contained and shall be subject to the terms
and conditions herein set forth. Each Note 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 4 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. Any such sales
may be at a discount, which shall not exceed the amount set forth in the
Prospectus Supplement 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
Global Medium-Term Notes, Series A, Administrative Procedures (attached hereto
as Exhibit B) (the "Administrative Procedures"), as amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Bank and you.
(d) Delivery. The documents required to be delivered by Section 4 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
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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."
3. Agreements. The Bank agrees with you that:
(a) Prior to the termination of any offering of the Notes pursuant to this
Agreement or any Terms Agreement, the Bank will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration Statement
unless the Bank has previously furnished to you a copy thereof for your review
and will not file any such proposed supplement or amendment to which you
reasonably object; provided, however, that the foregoing requirement shall not
apply to any of the Bank'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 will cause to be delivered to you promptly
after being transmitted for filing with the Commission. Subject to the
foregoing sentence, the Bank will promptly cause each Prospectus Supplement to
be filed with or transmitted for filing to the Commission in accordance with
Rule 424(b) under the Securities Act. The Bank will promptly advise you (i) of
the filing of any amendment or supplement to the Base Prospectus, (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 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 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 will use its
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 Prospectus 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, at any time when a prospectus relating to the Notes is required to
be delivered under the Securities Act, 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, it is necessary at any time to amend or supplement the
Prospectus, as then amended or
8
supplemented, to comply with applicable law, the Bank 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, you shall forthwith
suspend such solicitation and cease using the Prospectus, as then amended or
supplemented. If the Bank 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 (f) below and Sections 5(a), 5(b) and 5(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 3(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 will, at its 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 (f) below and Sections 5(a), 5(b) and 5(c)
such documents, certificates, opinions and letters as you may request in
connection with the preparation and filing of such amendment or supplement.
(c) The Bank 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.
(d) The Bank 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, 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, as then amended or supplemented (including the
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Prospectus Supplement relating to the Notes to be purchased pursuant to such
Terms Agreement or accepted offer), as you may reasonably request.
(e) The Bank 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.
(f) During the term of this Agreement, the Bank shall furnish to you such
relevant documents and certificates of officers of the Bank relating to the
business, operations and affairs of the Bank, the Registration Statement, the
Base Prospectus, any amendments or supplements thereto, the Indenture, the
Notes, this Agreement, the Administrative Procedures, any Terms Agreement and
the performance by the Bank of its obligations hereunder or thereunder as you
may from time to time reasonably request.
(g) The Bank shall notify you promptly in writing of any downgrading, or
of its receipt of any notice 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 or any of the Bank'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.
(h) 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 3(e),
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., (ix) the fees and disbursements of your counsel incurred in
connection with the offering and sale of the Notes, including any opinions to
be rendered by such counsel hereunder, and (x) any reasonable out-of-pocket
expenses incurred by you; provided that any advertising expenses incurred by
you shall have been approved by the Bank.
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(i) 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 such Terms Agreement, (B) Notes
previously agreed to be sold by the Bank and (C) commercial paper issued in the
ordinary course of business).
4. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Notes as agent of the Bank 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 herein, to the accuracy of the statements of the Bank's
officers made in each certificate furnished pursuant to the provisions hereof
and to the performance and observance by the Bank of all covenants and
agreements herein contained on its 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) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Bank and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made, 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 Prospectus, as so
amended or supplemented;
(ii) 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 proceed with the
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purchase of the Notes by you on the terms and in the manner contemplated
in the Prospectus; and
(iii) 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 any of the Bank'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 and, if called for by any Terms Agreement, on
the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of ▇▇▇▇▇▇▇▇ Chance Limited
Liability Partnership, special Dutch counsel to the Bank, or of other
counsel satisfactory to you and who may be an officer of the Bank, to the
effect that:
(A) the Bank is: (i) registered as a public limited liability
company with limited liability (naamloze vennootschap), (ii) founded
by Royal Decree No. 163 dated March 29, 1824 and duly incorporated by
deed dated February 7, 1825, (iii) validly existing under the laws of
The Netherlands, and (iv) 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 has:
(1) corporate power and corporate capacity to execute and
deliver the Indenture, the Notes, this Agreement and any
applicable Written Terms Agreement, authorize the distribution
of the Prospectus on its behalf, undertake and perform the
obligations expressed to be assumed by it in the Indenture, the
Notes, this Agreement and any applicable Written Terms Agreement
(including the issue of the Notes); and
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(2) taken all internal corporate action required by the
Articles of Association and by Dutch corporate law to authorize
the form of the Notes and to authorize, execute and deliver the
Indenture, this Agreement and any applicable Written Terms
Agreement.
(B) each of the Indenture, this Agreement, and any applicable
Written Terms Agreement has been validly executed on behalf of the
Bank and constitutes the valid and legally binding obligations of the
Bank, enforceable in accordance with its terms.
(C) no authorisations, licences, approvals, orders or consents,
registrations, recordations or filings with any court, governmental
authority, bureau, official agency or body in The Netherlands are
required under the laws and regulations of The Netherlands for (or in
connection with):
(1) the distribution by or on behalf of the Bank of the
Prospectus; or
(2) the execution and delivery by the Bank of the
Indenture, the Notes, this Agreement and any applicable Written
Terms Agreement and the performance of its obligations
thereunder; or
(3) the payment by the Bank, when due, of all sums which it
may be liable to pay in respect of the Notes or under the
Indenture, this Agreement or any applicable Written Terms
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 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; or
(2) any law or generally applicable regulation of The
Netherlands to which the Bank is subject
13
which would make the Indenture, this Agreement or any applicable
Written Terms Agreement, or parts thereof, or the Notes 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 15, first paragraph, 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 that the Indenture, the Notes,
this Agreement and any applicable Written Terms Agreement shall be
governed by and construed in accordance with the laws of the State of
New York is legal, valid and binding, and the courts of The
Netherlands will observe and give effect to the choice of the laws of
the State of New York as the law governing such documents in any
proceedings in relation to such documents, but when applying the laws
of the State of New York as the law governing such documents, the
courts of competent jurisdiction of The Netherlands, if any, by
virtue of the 1980 Rome Convention on the Law Applicable to
Contractual Obligations ( the "Rome Convention"):
(1) may give effect to the mandatory rules of law of
another country with which the situation has a close connection,
if and insofar as, under the law of the latter country, those
rules must be applied whatever the law applicable to such
documents (a limitation on the chosen law arising under article
7 (1) of the Rome Convention);
(2) will apply the law of The Netherlands in a situation
where it is mandatory irrespective of the law otherwise
applicable to such documents (a limitation on the chosen laws
arising under article 7 (2) of the Rome Convention);
(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
14
defective performance (article 10(2) of the Rome Convention).
(F) the submission by the Bank to the exclusive jurisdiction of
the courts in New York in respect of any proceedings arising out of
or in relation to the Indenture, the Notes, this Agreement and any
applicable Written Terms Agreement is valid and legally binding upon
the Bank. Nevertheless, the president of a competent District Court
(Arrondissementsrechtbank) in The Netherlands, in any matter where
the plaintiff seeks provisional measures in summary proceedings (kort
geding) or levy a prejudgment attachment, may assume jurisdiction
notwithstanding a contractual submission to jurisdiction; the waiver
by the Bank of any objection to the venue of a proceeding of a New
York Court is legal, valid and binding.
(G) when the Notes have been validly executed on behalf of the
Bank and, authenticated, delivered and paid for in accordance with
the terms of this Agreement and any applicable Written Terms
Agreement, they will constitute valid and legally binding obligations
of the Bank enforceable in accordance with their respective terms.
Each of the Indenture, this Agreement and any applicable Written
Terms Agreement constitutes the valid and legally binding obligation
of the Bank, enforceable in accordance with their respective terms.
(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 and assuming that it has been duly authorized, executed
and delivered by the Bank, it is a valid and binding agreement of the
Bank, enforceable in accordance with its terms except that (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally, (ii) the
enforceability thereof is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law and (iii) a waiver of rights under any
usury or stay law may be unenforceable;
(B) assuming the forms of Notes have been duly authorized by the
Bank as a matter of Dutch law, the forms of Notes have been duly
authorized and established in conformity with the provisions of the
Indenture and, if the Notes had been executed by the Bank and
authenticated by the Trustee or its duly
15
appointed agent in accordance with the provisions of the Indenture
and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, the Notes would be entitled to the benefits of
the Indenture and would be valid and binding obligations of the Bank,
enforceable in accordance with their respective terms except (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally, (ii) the enforceability
thereof is subject to general principles of equity regardless of
whether such enforceability is considered at a proceeding in equity
or at law, and (iii) a waiver of rights under any usury or stay law
may be unenforceable;
(C) the execution and delivery by the Bank of the Notes, the
Indenture, this Agreement and any applicable Written Terms Agreement
and the performance by the Bank of its obligations under such
agreements will not contravene any provision of applicable U.S.
Federal or New York State law and no consent, approval, authorization
or order of or qualification with any U.S. Federal or New York State
governmental body or agency is required for the performance by the
Bank of its obligations under this Agreement, the Notes, the
Indenture and any applicable Written Terms Agreement, except that no
opinion is expressed 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 the Notes, (ii) the applicability of any
commodities law, rule or regulation in connection with the offer,
sale, issuance or performance of any Notes, the payment of principal
or interest on which, or any other payments with respect to which
will be determined by reference to one or more currencies, exchange
rates, commodity prices, securities of entities unaffiliated with the
Bank, baskets of such securities, equity indices or other factors or
(iii) 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;
(D) the statements relating to legal matters, documents or
proceedings included in the Prospectus, as then amended or
supplemented, under the captions "Description of Debt Securities",
"Description of Notes", "Plan of Distribution" and "Forms of
Securities -- Limitations on Issuance of Bearer Securities", in each
case fairly summarizes in all material respects such matters,
documents and proceedings;
16
(E) such counsel confirms (i) its opinion set forth in the
Supplemental Prospectus, under the caption, "United States Federal
Taxation" and (ii) that, subject to the qualifications set forth
therein, the discussion set forth in the Supplemental Prospectus
under such caption is an accurate summary of the U.S. federal income
tax matters described therein;
(F) the Bank is not, 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 not be required to register as, an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(G) nothing has come to the attention of such counsel that
causes such counsel to believe that (1) the Registration Statement or
the Prospectus (except for the financial statements and financial
schedules and other financial and statistical data included therein,
as to which such counsel need not express any belief) do not comply
as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder; (2) the Registration Statement or the Base
Prospectus included therein (except for the financial statements,
financial schedules and other financial and statistical data included
therein, and except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to, as to which such
counsel need not express any belief) at the time the Registration
Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; or (3) the Prospectus (except for the financial
statements and financial schedules and other financial and
statistical data included therein, as to which such counsel need not
express any belief) as of its date or as of the date such opinion is
delivered, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that in the case
of an opinion delivered on the Commencement Date or pursuant to
Section 5(b), the opinion and belief set forth in clauses (1), (2)
and (3) above 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.
Notwithstanding the foregoing, the opinions described in subparagraphs
(B), (C), (D) and (G) (2), (3) and (4) of paragraph (b)(ii) above, when
contained in
17
an opinion delivered on the Commencement Date or pursuant to Section 5(b),
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 payments with respect to which, will be determined by
reference to one or more currency exchange rates, commodity prices, securities
of entities unaffiliated with the Bank, baskets of such securities, equity
indices or other factors.
With respect to subparagraph (G) 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 Prospectus
and any amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but are
without independent check or verification, except as specified.
(iii) The opinion, dated as of such date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.,
Senior Vice President and Assistant General Counsel, to the effect that:
(A) ABN AMRO Financial Services, Inc. is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation and has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, as amended or supplemented;
(B) each of LaSalle Bank National Association, Standard Federal
Bank, ABN AMRO North America, Inc. and ABN AMRO North American
Holdings, Inc. (each a "U.S. Material Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
power and authority (corporate and other) to own its property and to
conduct its business as described in the Prospectus, as amended or
supplemented, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Bank and its consolidated subsidiaries, taken as a
whole; and
(C) each of the U.S. Material Subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings
18
with, all U.S., federal, state, local and other governmental
authorities, all U.S. self-regulatory organizations and all U.S.
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, as amended or supplemented, except to
the extent that the failure to obtain or file would not have a
material adverse effect on the Bank and its consolidated
subsidiaries, taken as a whole.
The opinions of ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Esq. described in paragraph (b)(i) and (iii) above shall be rendered
to you at the request of the Bank and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms Agreement, on
the corresponding Settlement Date, you shall have received a certificate of the
Bank, dated the Commencement Date or such Settlement Date, as the case may be,
and signed by two authorized signatories of the Bank, to the effect set forth
in subparagraph (a)(iii) above, and to the effect that the representations and
warranties of the Bank contained in this Agreement are true and correct as of
such date, that the Bank has complied with all of the agreements and satisfied
all of the conditions on its part 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 and, if called for by any Terms Agreement, on
the corresponding Settlement Date, the Bank's independent auditors shall have
furnished to you a letter or letters, dated as of the Commencement Date or such
Settlement Date, as the case may be, 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; 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 and on each Settlement Date, the Bank shall
have furnished to you such appropriate further information, certificates and
documents as you may reasonably request.
5. Additional Agreements of the Bank. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for (i) the specific terms of the Notes or (ii)
a change you deem to be immaterial), the Bank will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Bank, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to you, of the same tenor as the certificate
referred to in
19
Section 4(c) relating to the Registration Statement or the Prospectus as
amended or supplemented to the time of delivery of such certificate.
(b) Each time the Bank furnishes a certificate pursuant to Section 5(a)
(other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Report on Form 6-K unless you shall
reasonably request based on disclosure included or omitted from such Report),
the Bank will furnish or cause to be furnished forthwith to you a written
opinion of counsel for the Bank. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred to
in Section 4(b), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, 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 and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Bank shall cause its independent auditors forthwith to furnish
you with a letter, dated the date of such amendment or supplement, as the case
may be, in form satisfactory to you, of the same tenor as the letter referred
to in Section 4(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.
6. Indemnification and Contribution. (a) The Bank agrees 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) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof or the
Prospectus (as amended or supplemented if the Bank shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged
20
untrue statement or omission based upon information relating to you furnished
to the Bank in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Bank, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Bank 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 to you, but only with reference to information relating to you
furnished to the Bank in writing by you expressly for use in the Registration
Statement or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) 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 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, in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there 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
21
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages 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 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 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
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 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 or by you and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The Bank and you agree that it would not be just or equitable if
contribution pursuant to this Section 6 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 (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) 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 6, you shall not be
22
required to contribute any amount in excess of the amount by which the total
price at which the Notes referred to in paragraph (d) 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6
and the representations, warranties and other statements of the Bank, its
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, its officers or directors or any person controlling the Bank and
acceptance of and payment for any of the Notes.
7. Position of the Agents. In acting under this Agreement and in
connection with the sale of any Notes by the Bank (other than Notes sold to you
pursuant to a Terms Agreement), you are acting solely as agents of the Bank 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 in
obtaining performance by each purchaser whose offer to purchase Notes has been
solicited by you and accepted by the Bank, but you shall not have any liability
to the Bank in the event any such purchase is not consummated for any reason.
If the Bank shall default in its obligations to deliver Notes to a purchaser
whose offer it has accepted, the Bank 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.
8. 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 unless such consent, approval or
permission has been previously obtained. Subject to the obligations of the Bank
set forth in Section 3 of this Agreement, the Bank shall have no responsibility
for, and you will 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 force
in any jurisdiction to which you are subject or in or from which you make any
subscription, offer, sale or delivery.
23
(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 effectenverkee).
9. Termination. This Agreement may be terminated at any time either by the
Bank or by you 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
provisions of the third paragraph of Section 2(a), the last sentence of Section
3(b) and Sections 3(c), 3(h), 6, 7, 10, 11 and 13 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, 2(b), 2(c), 3(a), 3(d), 3(e),
3(f), 3(g), 3(i), 4 and 5 shall also survive until such delivery has been made.
10. 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 relating to the particular Notes,
without the prior written consent of the Bank.
11. 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, will
be mailed, delivered or telefaxed and confirmed to the Bank at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, Attention: SEDD-New Issues, with a copy to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (telefax number: 212-450-3135) and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., ABN AMRO
Incorporated, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telefax number:
212-932-0663).
12. 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 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
13. 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.
24
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
15. Submission to Jurisdiction. The Bank agrees 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, waives any objection which it may
now or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the jurisdiction of such court in any suit, action or
proceeding. The Bank has appointed ▇▇▇▇ ▇▇▇▇▇, Esq., Chief Legal Officer, ABN
AMRO WCS Holding Company, as its authorized agent (the "Authorized Agent") upon
which process may be instituted in any State or Federal court in the Borough of
Manhattan, City and State of New York by any Agent and the Bank expressly
accepts the jurisdiction of any such court in respect of such action. Such
appointment shall be irrevocable unless and until a successor authorized agent,
located or with an office in the Borough of Manhattan, City and State of New
York, shall have been appointed by the Bank and such appointment shall have
been accepted by such successor authorized agent. The Bank represents and
warrants that the Authorized Agent has agreed to act as said agent for service
of process, and the Bank agrees 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 shall be deemed, in every respect, effective service of process upon the
Bank.
16. Judgment Currency. The Bank, 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 the Agents 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.
25
17. 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.
26
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
between the Bank and you.
Very truly yours,
ABN AMRO BANK N.V.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
27
The foregoing U.S. Distribution Agreement
is hereby confirmed and accepted as
of the date first above written.
ABN AMRO FINANCIAL SERVICES, INC.
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
ABN AMRO INCORPORATED
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
ADVEST, INC.
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
FIRST INSTITUTIONAL SECURITIES, LLC
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
FIRST UNION SECURITIES, INC.
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
H & R BLOCK FINANCIAL ADVISORS
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
LADENBURG ▇▇▇▇▇▇▇▇ & CO., INC.
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
MCDONALD INVESTMENTS, INC.
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇, ▇▇▇▇ & COMPANY
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
The foregoing U.S. Distribution Agreement is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, INC.
By:
---------------------------------
Name:
Title:
Notices hereunder shall be sent to:
------------------------------------
------------------------------------
Attention:
--------------------------
Telefax:
--------------------------
EXHIBIT A
ABN AMRO BANK N.V.
SELLING AGENCY INVITATION
Date: [ ]
To: [Agents]
Reference is made to the U.S. Distribution Agreement dated [ , 2002] among ABN
AMRO Bank N.V. (the "Issuer") 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 by others.
The Securities
Issuer: ABN AMRO Bank 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: [ ]
The terms and conditions of the Securities are set out in the prospectus (the
"Prospectus") to be used in connection with the offering of the Securities. The
Issuer will supply you with a reasonable number of copies of the Prospectus
upon request.
Very truly yours,
ABN AMRO BANK N.V.
A-1
EXHIBIT B
ABN AMRO BANK N.V.
GLOBAL MEDIUM-TERM NOTES, SERIES A
NOTES TERMS AGREEMENT
, 200
----------------------------- --
ABN AMRO Bank N.V.
Attention:
Re: U.S. Distribution Agreement dated o, 2002 (the
"U.S. Distribution Agreement")
-----------------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series
A, having the following terms:
All Notes Fixed Rate Notes Floating Rate Notes
-------------------------- ---------------------------- ----------------------------
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
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 Spread Multiplier:
Interest Payments:
Specified Currency: Denominated Currency (if Alternate Rate Event Spread:
any):
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
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 Interest Reset Dates:
any):
Optional Repayment Date(s): Reference Dealers: Interest Reset Period:
Optional Redemption Face Amount (if any): Maximum Interest Rate:
Date(s):
Initial Redemption Date: Fixed Amount of each Minimum Interest Rate:
Indexed Currency (if any):
Initial Redemption Aggregate Fixed Amount of Interest Payment Period:
Percentage: each Indexed Currency (if
any):
Annual Redemption Applicability of Issuer's Calculation Agent:
Percentage Reduction: Option to Extend Original
Maturity Date:
Ranking: If yes, state Final Maturity Reporting Service:
Date:
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, 2(b) and 2(c), 3 through 6, 8 and 10 through
14 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
3(h), 6, 10, 11, and 13 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 4 of the U.S. Distribution Agreement will be required:
____________________.
B-3
ABN AMRO FINANCIAL SERVICES, INC. ABN AMRO INCORPORATED
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
ADVEST, INC. FIRST INSTITUTIONAL SECURITIES, LLC
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
FIRST UNION SECURITIES, INC. H&R BLOCK FINANCIAL ADVISORS
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
LADENBURG ▇▇▇▇▇▇▇▇ & CO., INC. MCDONALD INVESTMENTS, INC.
By: By:
---------------------------------- ----------------------------------
Name: Name:
Title: Title:
▇▇▇▇, ▇▇▇▇ & COMPANY ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, INC.
By: By:
----------------------------------- ----------------------------------
Name: Name:
Title: Title:
Accepted:
ABN AMRO BANK N.V.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
B-4
EXHIBIT C
ABN AMRO BANK N.V.
GLOBAL MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
----------------------
Explained below are the administrative procedures and specific terms of
the offering from time to time of Global Medium-Term Notes, Series A (the
"Notes"), on a continuous basis by ABN AMRO Bank N.V. (the "Bank") pursuant to
the U.S. Distribution Agreement, dated as of o, 2002 (as may be amended
from time to time, the "Distribution Agreement") among the Bank, ABN AMRO
Financial Services, Inc. and each Agent named therein (collectively or
individually, the "Agent"). The Notes will be issued as senior indebtedness
(the "Notes") of the Bank pursuant to the provisions of an indenture dated as
of November 27, 2000 (as may be supplemented or amended from time to time, the
"Indenture"), between the Bank and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, formerly The Chase
Manhattan Bank ("JPMorgan Chase"), 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 the Agent 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.
JPMorgan Chase will be the Registrar, Calculation Agent, 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 JPMorgan Chase, 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 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, JPMorgan Chase will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under (i) a Letter of
Representations from the Bank and JPMorgan Chase to DTC, dated as of o, 2002,
for medium-term notes, (ii) a global Letter of Representations delivered by the
Bank and JPMorgan Chase to DTC for mandatorily exchangeable securities dated as
of ▇, ▇▇▇▇, (▇▇▇) a global Letter of Representations delivered by the Bank and
JPMorgan Chase to DTC for optionally exchangeable securities dated as of o,
2002 (the Letter of Representations referred to in clauses (i), (ii) and (iii)
are referred to collectively as the "Letter of Representations"), and (iv) a
Medium-Term Note Certificate Agreement between JPMorgan Chase and DTC, dated as
of March 10, 1987, and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
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. $400,000,000 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 JPMorgan
Chase. 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.
C-3
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, JPMorgan Chase
will annotate the Global Note to indicate the change in
aggregate principal amount. Upon such annotation, JPMorgan
Chase, 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 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.$400,000,000. If one
or more Book-Entry Notes having an aggregate principal amount
in excess of U.S. $400,000,000, 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.
$400,000,000 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
C-4
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 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.
C-5
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.
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.
C-6
B. The Bank will advise JPMorgan Chase by telephone or electronic
transmission (confirmed in writing at any time on the same
date) of the information set forth in "Settlement Procedure"
"A" and "B" above, as applicable. JPMorgan Chase will then
assign a CUSIP number to the Global Note representing a Note
and will notify the Bank and the Agent of such CUSIP
number(s) by telephone as soon as practicable, except that
for Optionally Exchangeable and Mandatorily Exchangeable
Notes the Agent will obtain a CUSIP number for the Global
Note representing such Note and will notify the Bank and
JPMorgan Chase of such CUSIP number(s) by telephone as soon
as practicable.
C. JPMorgan Chase 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, as applicable.
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 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 JPMorgan Chase.
D. JPMorgan Chase will, as applicable, authenticate, complete and
deliver the Global Note representing the Note.
C-7
E. DTC will credit such Note to Chase's participant account at
DTC.
F. JPMorgan Chase 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 Chase's participant account and
credit such Note to the Agent's participant account and (ii)
debit the Agent's settlement account and credit Chase'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 JPMorgan Chase to DTC that (a) the Global Note
representing a Book-Entry Note has been issued and
authenticated and (b) JPMorgan Chase is holding such Global
Note pursuant to the Medium- Term Note Certificate Agreement
between JPMorgan Chase and DTC.
G. Unless the Agent is the end purchaser of a 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 "G" and "H" will be
settled in accordance with SDFS operating procedures in
effect on the settlement date.
I. JPMorgan Chase will credit to the account of the Bank
maintained at ABN AMRO, New York, in funds available for
immediate use in the amount transferred to JPMorgan Chase in
accordance with "Settlement Procedure" "G".
J. Unless the Agent is the end purchaser of the Note, the Agent
will confirm the purchase of such Note to
C-8
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, JPMorgan Chase will send 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
JPMorgan Chase 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 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
C-9
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, JPMorgan Chase, 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 JPMorgan Chase fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to "Settlement
Procedure" "G", JPMorgan Chase may deliver to DTC, through
DTC's Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note to
Chase's participant account, provided that Chase'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, JPMorgan Chase
will ▇▇▇▇ such Global Note "canceled," make appropriate
entries in Chase'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, JPMorgan Chase will
exchange such Global Note for two Global Notes one of which
shall represent such Book-Entry Note
C-10
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 "G" and "H", respectively. Thereafter, JPMorgan
Chase 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 JPMorgan Chase will provide, in
accordance with Settlement Procedures "E" and "G", 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
JPMorgan Chase 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 JPMorgan Chase. 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
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original issuance date (which will be the settlement date)
and (ii) with respect to any Certificated Note (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
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pursuant to the timetable for settlement set forth below,
unless the Bank and the purchaser agree to settlement on
another date.
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.
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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.
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 JPMorgan Chase 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 JPMorgan Chase 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 JPMorgan Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Bank.
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D. JPMorgan Chase will with respect to a Note,
authenticate such Note and deliver it (with the
confirmation) 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
JPMorgan Chase. 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 JPMorgan Chase, or to
such other account as the Bank shall have specified to
the Agent and JPMorgan Chase 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 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. JPMorgan Chase will send Stub Three to the Bank by
first-class mail. Periodically, JPMorgan Chase 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 JPMorgan Chase 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 "G" set forth above shall be completed on or
before the respective times in New York City set forth
below:
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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
G 5:00 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 JPMorgan Chase by telephone and
return such Note to JPMorgan Chase. 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 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
JPMorgan Chase, 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, JPMorgan Chase
will ▇▇▇▇ such note "canceled," make appropriate
entries in Chase's records and send such Note to the
Bank.
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