EXHIBIT 1-c
ABN AMRO BANK N.V.
ABN AMRO HOLDING N.V.
Global Medium-Term Notes, Series A
SUPPLEMENTAL U.S. DISTRIBUTION AGREEMENT
September __, 2003
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 and ABN
AMRO Holding N.V., a public limited liability company incorporated under the
laws of The Netherlands ("Holding"), 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. This Supplemental U.S. Distribution
Agreement (this "Supplement") supplements and forms a part of the U.S.
Distribution Agreement dated as of July 8, 2002 among the Bank and the Agents
named therein (the "Base Distribution Agreement"). Capitalized terms not
otherwise defined in this Supplement shall have the meaning ascribed to them in
the Base Distribution Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each
other similar reference and each reference to "this Agreement" and each other
similar reference contained in the Base Distribution Agreement and in this
Supplement shall, after this Supplement becomes effective, refer to the Base
Distribution Agreement as supplemented by this Supplement.
The Notes are issued as senior indebtedness of the Bank pursuant to the
provisions of an indenture dated as of November 27, 2000 (as supplemented by
the First Supplemental Indenture dated as of September __, 2003, and as may be
supplemented or amended from time to time, the "Indenture") among the Bank,
Holding and JPMorgan Chase Bank, formerly The Chase Manhattan Bank, as trustee
(the "Trustee").
The Notes will be entitled to the benefit of a full and unconditional
guarantee by Holding (the "Guarantee") as set forth in the Indenture, pursuant
to which Holding will guarantee any payments to be made by the Bank on the
Notes.
The Bank and Holding have filed with the Securities and Exchange
Commission (the "Commission") a post effective amendment to the registration
statement, including a prospectus, relating to the Notes and the Guarantee.
Such registration statement, including the exhibits thereto, as amended as of
the Recommencement Date (as hereinafter defined), is hereinafter referred to as
the "Registration Statement." The Bank and Holding propose to file with the
Commission from time to time, pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"), 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 and the
Guarantee, 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 Holding or the Bank with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). If the Bank and Holding have filed an abbreviated registration
statement to register additional Securities 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. Holding represents and warrants to and
agrees with you as of the Recommencement 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
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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):
(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 Holding or the Bank in writing by you expressly for use therein or
(B) to that part of the Registration Statement that constitutes the Statement
of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustee and (2) the representations and
warranties set forth in clauses (ii), (iii) and (iv) above, when made as of the
Recommencement 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) Holding 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.
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(d) Each subsidiary of Holding has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation (where such legal concept has relevance), has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on Holding and its subsidiaries, taken as a
whole.
(e) This Agreement has been duly authorized, executed and delivered by
Holding.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by Holding and is a valid
and binding agreement of Holding, enforceable in accordance with its terms
except as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general principles
of equity, regardless of whether such enforceability is considered at a
proceeding in equity or at law.
(g) The Guarantees 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 Guarantees will be entitled
to the benefits of the Indenture and will be valid and binding obligations of
Holding, enforceable in accordance with their respective terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of
equity, regardless of whether such enforceability is considered at a proceeding
in equity or at law.
(h) The execution and delivery by Holding of this Agreement and the
Indenture and the performance by Holding of its obligations under this
Agreement and the Indenture will not contravene any provision of applicable law
or the articles of association of Holding or any agreement or other instrument
binding upon Holding or any of its subsidiaries that is material to Holding and
its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Holding 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 Holding of its obligations under this Agreement and the
Indenture, except such as may be required by the securities or Blue Sky laws of
the various states in
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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.
(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 Holding 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 Holding or any of its subsidiaries is a party or to which any of the
properties of Holding 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 Holding 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 Holding and its subsidiaries, taken as a whole.
(l) Holding 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 Guarantees) and 1(h), when made
as of the Recommencement 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 Holding, baskets of such securities, equity
indices or other factors, shall be deemed not to
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address the application of the Commodity Exchange Act, as amended, or the
rules, regulations or interpretations of the Commodity Futures Trading
Commission.
(m) Delivery. The documents required to be delivered by Section 3 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 any offer by you to purchase Notes as principal. The
date of delivery of such documents is referred to herein as the "Recommencement
Date."
2. Agreements. Holding agrees with you that:
(a) Prior to the termination of any offering of the Notes pursuant to any
Terms Agreement, Holding will not file any Prospectus Supplement relating to
the Notes or any amendment to the Registration Statement unless Holding 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
Holding's periodic filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies of which
filings Holding will cause to be delivered to you promptly after being
transmitted for filing with the Commission. Subject to the foregoing sentence,
Holding 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. Holding 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
Holding of any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. Holding 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
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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 Holding, it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law,
Holding will immediately notify you by telephone (with confirmation in writing)
to suspend solicitation of offers to purchase Notes and, if so notified by
Holding, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If Holding shall decide to amend
or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with confirmation
in writing) and, at its expense, shall prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to you in such quantities
as you may reasonably request. If any documents, certificates, opinions and
letters furnished to you pursuant to paragraph (f) below and Sections 4(a),
4(b) and 4(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 2(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, Holding 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 4(a),
4(b) and 4(c) such documents, certificates, opinions and letters as you may
request in connection with the preparation and filing of such amendment or
supplement.
(c) Holding will make generally available to its security holders and to
you as soon as practicable earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission
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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) Holding will furnish to each Agent, without charge, (i) a signed copy
of the Registration Statement, including exhibits and all amendments thereto,
and as many copies of the Prospectus, 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
Holding, 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.
(e) During the term of this Agreement, Holding shall furnish to you such
relevant documents and certificates of officers of Holding relating to the
business, operations and affairs of Holding, the Registration Statement, the
Base Prospectus, any amendments or supplements thereto, the Indenture, the
Guarantees, this Agreement, the Administrative Procedures, any Terms Agreement
and the performance by Holding of its obligations hereunder or thereunder as
you may from time to time reasonably request.
3. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Notes as agent of Holding in connection with any offering of
Notes with respect to which you have received a Selling Agency Invitation and
your obligation to purchase Notes as principal pursuant to any Terms Agreement
will be subject to the accuracy of the representations and warranties on the
part of Holding herein, to the accuracy of the statements of Holding's officers
made in each certificate furnished pursuant to the provisions hereof and to the
performance and observance by Holding 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 Holding 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 Holding and its
subsidiaries,
8
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 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 Holding or any of Holding's
securities by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (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 Holding and Holding's United States entities);
(A) except, in each case described in paragraph (i), (ii) or above, as
disclosed to you in writing by Holding 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 Recommencement 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 Holding, or of other
counsel satisfactory to you and who may be an officer of Holding, to the
effect that:
(A) Holding 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. Holding has:
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(1) corporate power and corporate capacity to execute and
deliver the Indenture and this Agreement, authorize the
distribution of the Prospectus on its behalf, undertake and
perform the obligations expressed to be assumed by it in the
Indenture and this Agreement; and
(2) taken all internal corporate action required by the
Articles of Association and by Dutch corporate law to authorize,
execute and deliver the Indenture and this Agreement.
(B) each of the Indenture and this Agreement has been validly
executed on behalf of Holding and constitutes the valid and legally
binding obligations of Holding, enforceable in accordance with its
terms.
(C) no authorizations, 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 Holding of the
Prospectus; or
(2) the execution and delivery by Holding of the Indenture
and this Agreement and the performance of its obligations
thereunder; or
(3) the payment by Holding, when due, of all sums which it
may be liable to pay in respect of the Guarantees or under the
Indenture, or this Agreement in the currency in which they are
stated to be payable;
provided however, that with respect to (1) and (2) above, any agent
offering securities or distributing the Prospectus in or from The
Netherlands (whether electronically or otherwise) will be licensed or
exempt pursuant to Articles 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):
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(1) the Articles of Association; or
(2) any law or generally applicable regulation of The
Netherlands to which Holding is subject
which would make the Indenture, the Guarantees or this Agreement, or
parts thereof, null and void or subject to avoidance or nullification
in The Netherlands.
(D) the statements in the Registration Statement, as then
amended or supplemented, under Item 8, 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 Holding that the Indenture, the Guarantees
and this Agreement shall be governed by and construed in accordance
with the laws of the State of New York is legal, valid and binding,
and the courts of The Netherlands will observe and give effect to the
choice of the laws of the State of New York as the law governing such
documents in any proceedings in relation to such documents, but when
applying the laws of the State of New York as the law governing such
documents, the courts of competent jurisdiction of The Netherlands,
if any, by virtue of the 1980 Rome Convention on the Law Applicable
to Contractual Obligations (the "Rome Convention"):
(1) may give effect to the mandatory rules of law of
another country with which the situation has a close connection,
if and insofar as, under the law of the latter country, those
rules must be applied whatever the law applicable to such
documents (a limitation on the chosen law arising under article
7 (1) of the Rome Convention);
(2) will apply the law of The Netherlands in a situation
where it is mandatory irrespective of the law otherwise
applicable to such documents (a limitation on the chosen laws
arising under article 7 (2) of the Rome Convention);
(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
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the chosen laws arising under article 16 of the Rome
Convention); and
(4) shall have regard to the law of the country in which
performance takes place in relation to the manner of performance
and the steps to be taken in the event of defective performance
(article 10(2) of the Rome Convention).
(F) the submission by Holding to the exclusive jurisdiction of
the courts in New York in respect of any proceedings arising out of
or in relation to the Indenture, the Guarantees and this Agreement is
valid and legally binding upon Holding. 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 Holding 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, the Guarantees will constitute valid and legally binding
obligations of Holding 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 Holding, 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) assuming the forms of the Notes have been duly authorized by
the Bank as a matter of Dutch law, the forms of the Notes have been
duly authorized and established in conformity with the provisions of
the Indenture and when the Notes have been executed by the Bank and
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 Guarantees will be valid
and binding obligations of Holding, enforceable in accordance with
their respective terms, except as the
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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) the execution and delivery by Holding of the Indenture, this
Supplement and the performance by Holding of its obligations under
such agreements will not contravene any provision of applicable U.S.
federal or New York State law 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 Holding of its
obligations under the Guarantees, the Indenture and this Supplement
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;
(C) 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" and
"Description of Notes," in each case fairly summarizes in all
material respects such matters or documents;
(D) such counsel confirms its opinion set forth in the
Prospectus Supplement dated September __, 2003 under the caption
"United States Federal Taxation" and that, subject to the
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.
Notwithstanding the foregoing, the opinions described in subparagraphs
(A), (B) and (C) of paragraph (b)(ii) above, when contained in an opinion
delivered on the Recommencement Date or pursuant to Section 4(b), shall be
deemed not to address the application of the Commodity Exchange Act, as
13
amended, or the rules, regulations or interpretations of the Commodity Futures
Trading Commission to Notes the payments of principal or interest on which, or
any other payments with respect to which, will be determined by reference to
one or more currency exchange rates, commodity prices, securities of entities
unaffiliated with Holding, baskets of such securities, equity indices or other
factors.
The opinion of Xxxxxxxx Chance Limited Liability Partnership described in
paragraph (b)(i) above shall be rendered to you at the request of Holding and
shall so state therein. In addition, such opinion and the opinion described in
paragraph (b)(ii) above shall expressly provide that any agent that becomes an
Agent hereunder following the Recommencement 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 Recommencement Date and, if called for by any Terms Agreement,
on the corresponding Settlement Date, you shall have received a certificate of
Holding, dated the Recommencement Date or such Settlement Date, as the case may
be, and signed by two authorized signatories of Holding, to the effect set
forth in subparagraph (a)(iii) above, and to the effect that the
representations and warranties of Holding contained in this Agreement are true
and correct as of such date, that Holding 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 Recommencement Date and on each Settlement Date, Holding shall
have furnished to you such appropriate further information, certificates and
documents as you may reasonably request.
4. Additional Agreements of Holding. (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), Holding will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of
Holding, 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 3(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time Holding furnishes a certificate pursuant to Section 4(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),
14
Holding will furnish or cause to be furnished forthwith to you a written
opinion of counsel for Holding. 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 3(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, Holding 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 3(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.
5. Indemnification and Contribution. Section 6 of the Base Distribution
Agreement is hereby replaced in its entirety with the following:
"6. Indemnification and Contribution. (a) The Bank and Holding agree to
indemnify and hold harmless you and each person, if any, who controls you
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) 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 or Holding
shall have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to you furnished to the Bank and Holding in writing
by you expressly for use therein.
15
(b) You agree to indemnify and hold harmless The Bank and Holding, their
directors, their officers who sign the Registration Statement and each person,
if any, who controls the Bank or Holding within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Bank or Holding 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 and
Holding, in the case of parties indemnified pursuant to paragraph (b) above.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there 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
16
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Bank and Holding
on the one hand and you on the other hand from the offering of such Notes or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Bank and Holding on the one hand and you on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Bank and Holding on the one hand and you on
the other hand in connection with the offering of such Notes shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Bank and
Holding bear to the total discounts and commissions received by you in respect
thereof. The relative fault of the Bank and Holding on the one hand and of you
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by The Bank, Holding 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, Holding 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
17
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 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 and
Holding, their officers and you set forth in or made pursuant to this Agreement
or any Terms Agreement will remain operative and in full force and effect
regardless of any termination of this Agreement or any such Terms Agreement,
any investigation made by or on behalf of you or any person controlling you or
by or on behalf of the Bank and Holding, their officers or directors or any
person controlling the Bank and Holding and acceptance of and payment for any
of the Notes."
6. 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 or
if any consent, approval or permission is needed for such offer or sale for or
on behalf of Holding unless such consent, approval or permission has been
previously obtained. Subject to the obligations of Holding set forth in Section
2 of this Agreement, Holding 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.
7. Termination. Section 9 of the Base Distribution Agreement is hereby
replaced in its entirety with the following:
"9. Termination. This Agreement may be terminated at any time either by
the Bank and Holding 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
18
not require termination of this Agreement. If this Agreement is terminated, the
third paragraph of Section 2(a),the last sentence of Section 3(b) and Sections
7, 10, 11 and 13 of the Base Distribution Agreement and the last sentence of
Section 2(b) and Sections 2(c), 5, 9 and 11 of the Supplement shall survive;
provided that if at the time of termination an offer to purchase Notes has been
accepted by the Bank and Holding 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 of the Base Distribution
Agreement and Sections 1, 2(a), 2(d), 2(e), 3 and 4 of the Supplement shall
also survive until such delivery has been made.
8. Notices. All communications hereunder, if sent to Holding, will be
mailed, delivered or telefaxed and confirmed to Holding at [250 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).
9. Successors. Any reference in the Base Distribution Agreement to parties
thereto shall include Holding.
10. 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.
11. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
12. Submission to Jurisdiction. Section 15 of the Base Distribution
Agreement is hereby replaced in its entirety with the following:
"Section 15. Submission to Jurisdiction. The Bank and Holding agree that
any legal suit, action or proceeding brought by any Agent or by any person
controlling any Agent, arising out of or based upon this Agreement may be
instituted in any State or Federal court in the Borough of Manhattan, City and
State of New York, and, to the fullest extent permitted by law, 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. Holding has appointed Xxxxxxxx Xxxxxxxxx, 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
19
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 Holding and such appointment shall have been accepted by such successor
authorized agent. The Bank and Holding represent and warrant that the
Authorized Agent has agreed to act as said agent for service of process, and
Holding 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 and Holding shall be
deemed, in every respect, effective service of process upon the Bank and
Holding."
13. Judgment Currency. Section 16 of the Base Distribution Agreement is
hereby replaced in its entirety with the following:
"Section 16. Judgment Currency. The Bank and Holding, on the one hand, and
the Agents severally, on the other hand, agree, to indemnify the other against
loss incurred as a result of any judgment or order being given or made for any
amount due hereunder or under the Notes and such judgment or order being
expressed and paid in a currency (the "Judgment Currency") other than United
States dollars and as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such indemnified party would have been able to purchase
United States dollars with the amount of the Judgment Currency actually
received by it if such indemnified party had utilized such amount of Judgment
Currency to purchase United States dollars as promptly as practicable upon
receipt thereof. The foregoing indemnity shall constitute a separate and
independent obligation of the Bank and Holding 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."
14. 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.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Bank, Holding and you.
Very truly yours,
ABN AMRO BANK N.V.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
ABN AMRO HOLDING N.V.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
21
The foregoing supplement to the
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
ABN AMRO FINANCIAL SERVICES, INC.
By:
----------------------------------
Name: Xxxxxxx Xxxx
Title: First Vice President
Notices hereunder shall be sent to:
000 X. XxXxxxx Xxxxxx
-------------------------------------
Xxxxxxx, XX 00000
-------------------------------------
Attention: Xxxxxxx Xxxxxx
---------------------------
Telefax: 000-000-0000
-----------------------------
22
The foregoing supplement to the
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
ABN AMRO INCORPORATED
By:
----------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Notices hereunder shall be sent to:
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telefax:
-----------------------------
23
The foregoing supplement to the
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
ADVEST, INC.
By:
----------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
Notices hereunder shall be sent to:
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telefax:
-----------------------------
24
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXX XXXXX XXXXX, INC.
By:
----------------------------------
Name: Xxxxx X. Past
Title: Senior Vice President
Notices hereunder shall be sent to:
Xxxxxx, Xxxxx Xxxxx, Inc.
-------------------------------------
000 X. Xxxxx Xxxxxx, Xxxxx 000
-------------------------------------
Xxxxxxxxx, XX 00000
-------------------------------------
Attention: Xxxxx X. Past
---------------------------
Telefax: 000-000-0000
-----------------------------
25
The foregoing supplement to the
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
FIRST INSTITUTIONAL SECURITIES, LLC
By:
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
Fixed Income Trading
Notices hereunder shall be sent to:
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telefax:
-----------------------------
26
The foregoing supplement to the
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
WACHOVIA SECURITIES, INC.
By:
----------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
Notices hereunder shall be sent to:
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telefax:
-----------------------------
27
The foregoing supplement to the
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
H & R BLOCK FINANCIAL ADVISORS
By:
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director of Fixed Income
Notices hereunder shall be sent to:
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telefax:
-----------------------------
28
The foregoing supplement to the
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
MCDONALD INVESTMENTS, INC.
By:
----------------------------------
Name: Xxxxx X. Xxxxx
Title: First Vice President
Notices hereunder shall be sent to:
Xxxxx X. Xxxxx
-------------------------------------
McDonald Investments
-------------------------------------
Attention: Xxxxx X. Xxxxx
---------------------------
Telefax: 000-000-0000
-----------------------------
29
The foregoing supplement to the
U.S. Distribution Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXX, XXXX & COMPANY
By:
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
Notices hereunder shall be sent to:
-------------------------------------
-------------------------------------
Attention:
---------------------------
Telefax: 000-000-0000
-----------------------------
