EXHIBIT 1.b
ABN AMRO BANK N.V.
Global Medium-Term Notes, Series A
U.S. DISTRIBUTION AGREEMENT
July 8, 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
$2,044,250,000 (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.
333-89136
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 public
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 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.
2. Solicitations as Agents; Purchases as Principal.
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(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) the specific terms of the Notes, or (ii) for a change you deem to be
immaterial), you shall not be required to resume soliciting offers to purchase
Notes until the Bank 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 or Selling Agency Invitation relating to such Note.
You shall communicate to the Bank, orally or in writing, each offer to
purchase Notes received by you as agent that in your judgment should be
considered by the Bank. The Bank shall have the sole right to accept offers to
purchase Notes and may reject any offer in whole or in part. You shall have the
right to reject any offer to purchase Notes that you consider to be
unacceptable, and any such rejection shall not be deemed a breach of your
agreements contained herein. The procedural details relating to the issue and
delivery of Notes sold by you as agent and the payment therefor shall be as set
forth in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principal. Each sale of Notes to you as principal shall
be made in accordance with the terms of this Agreement. In connection with each
such sale, the Bank will enter into a Terms Agreement that will provide for the
sale of such Notes to and the purchase thereof by you. Each Terms Agreement
will take the form of either (i) a written agreement between you and the Bank,
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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 C) (the "Administrative Procedures"), as amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Bank and you.
(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 Xxxxx Xxxx & Xxxxxxxx, not later
than 4:00 p.m., New York time, on the date hereof, or at such other time and/or
place as you and the Bank may agree upon in writing, but in no event later than
the day prior to the earlier of (i) the date on which you begin soliciting
offers to purchase Notes pursuant to such Offering and (ii) the first date on
which the Bank accepts
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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 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 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
8
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
Prospectus Supplement relating to the Notes to be purchased pursuant to such
Terms Agreement or accepted offer), as you may reasonably request.
9
(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 that
occurs on or following the Commencement Date, or of its receipt of any notice
on or following the Commencement Date 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
(other than any such notice or downgrading relating to or arising from the
announcement by Xxxxx'x Investors Service on May 22, 2002, to review the
long-term credit rating and financial strength rating of the Bank and the
Bank's United States entities).
(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., and (ix) the fees and disbursements of Xxxxx Xxxx & Xxxxxxxx.
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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 (other than any such notice or downgrading relating to or
arising from the announcement by Xxxxx'x Investors Service on May 22,
2002, to review the long-term credit rating and financial strength rating
of the Bank and the Bank's United States entities);
(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 Xxxxxxxx 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 (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
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and any applicable Written Terms Agreement (including the issue
of the Notes); and
(2) taken all internal corporate action required by the
Articles of Association and by Dutch corporate law to authorize
the form of the Notes and to authorize, execute and deliver the
Indenture, 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
Xxxxxx Xxxxxxxxxxx Xxx 0000.
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
13
(2) any law or generally applicable regulation of The
Netherlands to which the Bank is subject
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
14
(4) shall have regard to the law of the country in which
performance takes place in relation to the manner of performance
and the steps to be taken in the event of defective performance
(article 10(2) of the Rome Convention).
(F) the submission by the Bank 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 Court
(Rechtbank) 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 Xxxxx Xxxx & Xxxxxxxx,
counsel for the Agents, to the effect that:
(A) the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and assuming that it has been duly
authorized, executed, and delivered by the Bank, the Indenture is a
valid and binding agreement of the Bank, enforceable against the Bank
in accordance with its terms, except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors'
rights generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or law;
(B) assuming the forms of the Notes have been duly authorized by
the Bank as a matter of Dutch law, the forms of the
15
Notes have been duly authorized and established in conformity with
the provisions of the Indenture and when the Notes have been executed
by the Bank and authenticated by the Trustee or its duly appointed
agent in accordance with the provisions of the Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes
will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Bank, enforceable in accordance with
their respective terms, except as the enforceability thereof (i) may
be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or law.;
(C) the execution and delivery by the Bank of the Notes, the
Indenture, the Distribution Agreement or 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 that in such counsel's experience is
normally applicable to transactions of the type contemplated by such
agreements, and no consent, approval, authorization or order of or
qualification with any U.S. federal or New York State governmental
body or agency that in such counsel's experience is normally
applicable to transactions of the type contemplated by such
agreements is required for the performance by the Bank of its
obligations under the Notes, the Indenture, the Distribution
Agreement or any applicable Written Terms Agreement, except that no
opinion is expressed herein with respect to (i) the applicability of
the securities or Blue Sky laws of the various states in connection
with the offer and sale of any Notes or (ii) whether the purchase of
any Notes constitutes a "prohibited transaction" under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended;
(D) the statements relating to legal matters or documents
included in the Prospectus, as amended or supplemented through the
date hereof, under the captions "Description of Debt Securities,"
"Description of Notes," "Plan of Distribution" and "Form of
Securities," in each case fairly summarizes in all material respects
such matters or documents;
(E) such counsel confirms its opinion set forth in the
Prospectus Supplement dated July 8, 2002 under the caption "United
States Federal Taxation" and that, subject to the
16
qualifications set forth therein, the discussion set forth in the
Prospectus Supplement under such caption is an accurate summary of
the U.S. federal income tax matters described therein;
(F) the Bank is not required to register as an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(G) each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus, as amended or
supplemented through the date hereof, complies as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder.
(H) nothing has come to such counsel's attention that causes
such counsel to believe that (i) 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 expresses no belief and except for that part
of the Registration Statement that constitutes the Statement of
Eligibility and Qualification of the Trustee ("Form T-1")) 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, (ii) the Registration Statement or prospectus
included therein (except for the financial statements and financial
schedules and other financial and statistical data included therein
and the Form T-1, as to which we express no belief) as of the date
hereof contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (iii) the Prospectus
(except as stated) as of the date hereof contains an untrue statement
of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the belief set forth in clauses (i) and (ii) above do not cover
information concerning an offering of particular Notes to the extent
such information will be set forth in a pricing supplement to the
Prospectus.
Notwithstanding the foregoing, the opinions described in subparagraphs
(B), (C), (D) and (H) (ii) and (iii) of paragraph (b)(ii) above, when contained
in 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
17
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, Xxxxx Xxxx &
Xxxxxxxx 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 Xxxxx Xxxxxxxxx, Esq.,
Senior Vice President and Assistant General Counsel, to the effect that:
(A) each of ABN AMRO North America, Inc. and ABN AMRO North
America Holdings Company is validly existing as a corporation under
the laws of the jurisdiction of their incorporation, and each of
LaSalle Bank National Association and Standard Federal Bank is
validly existing as a national bank association under the laws of the
jurisdiction of their creation;
(B) each of ABN AMRO North America, Inc., ABN AMRO North America
Holdings Company, LaSalle Bank National Association and Standard
Federal Bank (collectively, the "U.S. Material Subsidiaries") 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;
(C) each of ABN AMRO North America, Inc. and ABN AMRO North
America Holdings Company is in good standing under the laws of the
jurisdiction of its incorporation; and
(D) each of the U.S. Material Subsidiaries has all the necessary
consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all
U.S., federal, state, local, and other governmental authorities, all
U.S. self-regulatory organizations and all U.S. courts and other
tribunals, to own, lease, license and use its properties and assets
and to conduct its business in the manner described in the
Prospectus, as amended or supplemented through the date hereof,
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.
18
The opinions of Xxxxxxxx Chance Limited Liability Partnership and Xxxxx
Xxxxxxxxx, 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. In addition, such
opinions and the opinion described in paragraph (b)(ii) above shall expressly
provide that any agent that becomes an Agent hereunder following the
Commencement Date may rely on such opinion as though it were addressed to such
agent (it being understood that such opinion speaks only as of the date of such
opinion).
(c) On the Commencement Date 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 Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
19
(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 untrue statement or omission based upon information
relating to you furnished to the Bank in writing by you expressly for use
therein.
20
(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 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
21
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 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
22
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 Xxxxxx Xxxxxxxxxxx
Xxx 0000 (Wet toezicht effectenverkeer).
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 000 Xxxxxxxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx, Attention: GEDD-New Issues, with a copy to Xxxxxx
Xxxxxxxxxxx, Esq., Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telefax number: 212-450-3135) and Xxxxx Xxxxxxxxx, Esq., ABN AMRO
Incorporated, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax number:
212-450-7303).
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 Xxxx Xxxxx, 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:
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.
XXXXXX XXXXX XXXXX, 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.
WACHOVIA 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 XXXXXXXX & 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.
XXXX, XXXX & COMPANY
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 July 8 , 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 July 8, 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
------------------------------- ------------------------------- ---------------------------------
Principal Amount: Interest Rate: Base Rate:
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),
B-2
6, 10, 11, and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
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:
WACHOVIA SECURITIES, INC. H&R BLOCK FINANCIAL ADVISORS
By:________________________________ By:_____________________________________
Name: Name:
Title: Title:
LADENBURG XXXXXXXX & CO., INC. MCDONALD INVESTMENTS, INC.
By:________________________________ By:_____________________________________
Name: Name:
Title: Title:
XXXX, XXXX & COMPANY XXXXXX XXXXX XXXXX, 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 July 8, 2002 (as may be amended
from time to time, the "Distribution Agreement") between the Bank and the
Agents listed on the signature pages therein (collectively or individually, the
"Agent"). The Notes will be issued as senior indebtedness of the Bank pursuant
to the provisions of an indenture dated as of November 27, 2000 (as may be
supplemented or amended from time to time, the "Indenture"), between the Bank
and XX Xxxxxx Xxxxx 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 (with respect to
Floating Rate Notes), Authenticating Agent and Paying Agent for the Notes and
in each case, will perform the duties specified herein. Each Note will be
represented by either (i) a Global Note and (as defined below) delivered to
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
C-5
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-6
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 July 8,
2002, for medium-term notes; (ii) any other Letters of Representations
delivered by the Bank and JPMorgan Chase to DTC, from time to time, in
connection with any other exchangeable securities issued by the Bank (the
Letters of Representations referred to in clauses (i) and (ii) are referred to
collectively as the "Letter of Representations"); and (iii) 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-7
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.
C-8
The Bank (i) will arrange to file an electronic
format document, in the manner prescribed by the
XXXXX Xxxxx Manual, of such Pricing Supplement
with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act,
(ii) will, promptly and in any event not later
than the date on which such Pricing Supplement is
filed with the Commission, deliver the number of
copies of such Pricing Supplement to the Agent as
the Agent shall reasonably request and (iii) will,
on the Agent's behalf, promptly file five copies
of such Pricing Supplement with the National
Association of Securities Dealers, Inc. (the
"NASD"). The Agent will cause such Pricing
Supplement to be delivered to the purchaser of the
Note.
In each instance that a Pricing Supplement is
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:
C-9
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the Interest Rate, whether such Note will pay
interest annually, semiannually or quarterly
or, in the case of a Floating Rate Book-Entry
Note, the Initial Interest Rate (if known at
such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent,
Base Rate, Index Maturity, Index Currency,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any) and
the Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions, if any.
5. Ranking.
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
C-10
Exchangeable Note, or any form of exchangeable
Note.
13. Any other applicable provisions.
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).
C-11
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.
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.
C-12
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 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
C-13
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 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
xxxx such Global Note "canceled," make appropriate
entries in Chase's records and send such canceled
Global Note to the Bank. The CUSIP
C-14
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 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.
C-15
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 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
XXXXX Xxxxx 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.
C-16
Outdated Pricing Supplements, and the Prospectuses
to which they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Bank of immediately available
funds in exchange for an authenticated
Certificated Note delivered to the Agent and the
Agent's delivery of such Note against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note. All offers
accepted by the Bank will be settled on or before
the fifth Business Day next succeeding the date of
acceptance pursuant to the timetable for
settlement set forth below, unless the Bank and
the purchaser agree to settlement on another date.
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
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Note, the Initial Interest Rate (if known at
such time), Interest Payment Date(s),
Interest Payment Period, Calculation Agent,
Base Rate, Index Maturity, Index Currency,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any) and
the Alternate Rate Event Spread (if any).
7. Redemption or repayment provisions, if any.
8. Ranking.
9. Settlement date and time (Original Issue
Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if any, determined as
provided in the Distribution Agreement.
13. Denominations.
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.
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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.
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
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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:
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
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upon receipt of the Certificated Note in respect
of which such failure occurred, JPMorgan Chase
will xxxx such note "canceled," make appropriate
entries in Chase's records and send such Note to
the Bank.
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