EXHIBIT 1
ABN AMRO HOLDING N.V.
(a Netherlands public limited liability company)
ABN AMRO BANK N.V.
(a Netherlands public limited liability company)
ABN AMRO NORTH AMERICA HOLDING COMPANY
LASALLE FUNDING LLC
(a Delaware limited liability company)
LASALLE BANK CORPORATION
(a Delaware corporation)
ABN AMRO CAPITAL FUNDING LLC VI
(a Delaware limited liability company)
ABN AMRO CAPITAL FUNDING TRUST VI
(a Delaware statutory trust)
6.25% NONCUMULATIVE GUARANTEED TRUST PREFERRED SECURITIES
UNDERWRITING AGREEMENT
DATED: September 25, 2003
TABLE OF CONTENTS
PAGE
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Section 1. Representations and Warranties by the ABN AMRO Parties............4
Section 2. Sale and Delivery to Underwriters, Closing.......................11
Section 3. Covenants of the ABN AMRO Parties................................13
Section 4. Offering by Underwriters.........................................16
Section 5. Payment of Expenses..............................................16
Section 6. Conditions of Underwriters' Obligations..........................17
Section 7. Indemnification..................................................24
Section 8. Contribution.....................................................28
Section 9. Representations, Warranties and Agreements to Survive Delivery...29
Section 10. Termination of Agreement.........................................29
Section 11. Default by One or More of the Underwriters.......................30
Section 12. Notices..........................................................31
Section 13. Parties..........................................................31
Section 14. Governing Law and Jurisdiction...................................32
Section 15. Effect of Headings...............................................33
Schedule A: Names of Underwriters and Number of Trust
Preferred Securities to be Purchased...........................SA-1
Schedule B: Initial Public Offering Price and Underwriters
Commission.....................................................SB-1
Exhibit A: Form of Netherlands Counsel Opinion.............................A-1
Exhibit B: Form of U.S. Counsel Opinion....................................B-1
Exhibit C: Form of TIA Trustees' Counsel Opinion...........................C-1
ABN AMRO Capital Funding Trust VI
(a Delaware statutory trust)
6.25% Noncumulative Guaranteed Trust Preferred Securities
(Liquidation Amount of $25 per Trust Preferred Security)
guaranteed by ABN AMRO Holding N.V.
UNDERWRITING AGREEMENT
September 25, 2003
ABN AMRO Incorporated
ABN AMRO Financial Services, Inc.
c/o ABN AMRO Incorporated
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the Several Underwriters named in Schedule A hereto
Ladies and Gentlemen:
ABN AMRO Capital Funding Trust VI (the "Trust"), a statutory trust
organized under the Delaware Statutory Trust Act (the "Delaware Trust Act")
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ss.3801 et seq.), ABN
AMRO Capital Funding LLC VI (the "LLC"), a limited liability company organized
under the Limited Liability Company Act (the "Delaware LLC Act") of the State
of Delaware (Chapter 18, Title 6, of the Delaware Code, 6 Del. C. xx.xx. 18-101
et seq.), ABN AMRO Holding N.V., a Netherlands public limited liability company
(the "Guarantor"), ABN AMRO Bank N.V., a Netherlands public limited liability
company (the "Bank"), LaSalle Funding LLC, a Delaware limited liability company
("LaSalle Funding"), LaSalle Bank Corporation, a Delaware corporation ("LaSalle
Bank"), and ABN AMRO North America Holding Company ("AANAH" and together with
the Guarantor, the Trust, the Bank and the LLC, the "ABN AMRO Parties"),
confirm their agreement (the "Agreement") with ABN AMRO Incorporated, ABN AMRO
Financial Services, Inc. and each of the other Underwriters named in Schedule A
hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as
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hereinafter provided in Section 11 hereof), for whom ABN AMRO Incorporated and
ABN AMRO Financial Services, Inc. are acting as representatives (in such
capacity, hereinafter referred to as the "Representatives"), with respect to
the sale by the Trust and the purchase by the Underwriters, acting severally
and not jointly, of the respective numbers of 6.25% Noncumulative Guaranteed
Trust Preferred Securities (liquidation preference $25 per trust preferred
security), representing preferred undivided beneficial ownership interests in
the assets of the Trust (the "Trust Preferred Securities"), set forth in
Schedule A. AANAH will initially own all the common securities (the "Trust
Common Securities" and, together with the Trust Preferred Securities, the
"Trust Securities"), representing undivided beneficial ownership interests in
the assets of the Trust. The Trust Preferred Securities and the Trust Common
Securities will be issued pursuant to an amended and restated trust agreement
(the "Trust Agreement") of the Trust, to be dated as of September 30, 2003,
among the Guarantor, LaSalle Funding, as sponsor, the regular trustees named
therein (the "Regular Trustees"), BNY Midwest Trust Company, as institutional
trustee (the "Property Trustee"), and The Bank of New York (Delaware), a
Delaware corporation, as Delaware trustee (the "Delaware Trustee" and, together
with the Regular Trustees and the Property Trustee, the "Issuer Trustees"), and
the holders from time to time of undivided beneficial interests in the assets
of the Trust. The Trust Preferred Securities will be guaranteed by the
Guarantor, to the extent set forth in the Trust Securities Guarantee Agreement
(the "Trust Guarantee"), to be dated as of September 30, 2003, among the
Guarantor, the Underwriters and AANAH, as initial holders, and BNY Midwest
Trust Company, as trustee (the "Guarantee Trustee", and together with the
Guarantee Trustee under the LLC Guarantee, as defined below, and the Guarantee
Trustee under the Contingent Guarantee, as defined below, the "Guarantee
Trustees") with respect to distributions and payments upon liquidation and
redemption and otherwise pursuant to the Trust Guarantee.
The proceeds from the sale of the Trust Securities will be used by the
Trust to purchase 6.25% Noncumulative Guaranteed LLC Preferred Securities ("LLC
Preferred Securities"), representing ownership interests in the LLC. All of the
common securities of the LLC (the "LLC Common Securities") will be initially
owned by AANAH. The LLC Preferred Securities will be issued pursuant to an
amended and restated Limited Liability Company Agreement to be dated as of
September 30, 2003 (the "LLC Agreement") among AANAH, as initial holder of the
LLC Common Securities, the Trust, as initial holder of the LLC Preferred
Securities, and BNY Midwest Trust Company, as trustee (the "LLC Trustee", and,
together with the Property Trustee, the Delaware Trustee and the Guarantee
Trustees, the "TIA Trustees") for purposes of compliance under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and will be guaranteed by
the Guarantor, to the extent set forth in the LLC Preferred Securities
Guarantee Agreement (the "LLC Guarantee", and, together with the
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Trust Guarantee, the "Guarantees") to be dated as of September 30, 2003 among
the Guarantor, the Property Trustee and the Guarantee Trustee, as trustee, with
respect to distributions and payments upon liquidation and redemption and
otherwise pursuant to the LLC Guarantee. In addition, the Guarantor will agree
in a contingent guarantee agreement to be dated as of September 30, 2003 among
the Guarantor, the LLC, and the Guarantee Trustee (the "Contingent Guarantee")
to pay to the LLC the amounts payable under the LLC Guarantee, to the extent
such amounts have been claimed but remain unpaid, plus accrued interest. The
Trust Preferred Securities, the LLC Preferred Securities, the Perpetual
Non-Cumulative Capital Securities, as defined below, and the related
Guarantees, are referred to herein as the "Offered Securities."
The LLC will use the proceeds from the sale of the LLC Preferred
Securities to acquire, among other things, fixed income securities issued by
the Bank (the "Initial Intercompany Securities"). In the case of a Regulatory
Event (as defined in the Prospectus), the Trust Preferred Securities will be
exchanged for perpetual, non-cumulative capital securities of the Bank (the
"Perpetual Non-Cumulative Capital Securities").
The ABN AMRO Parties (other than AANAH) have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form F-3
(file No. 333-104778) to register under the Securities Act of 1933, as amended
(the "1933 Act"), the offer and sale of (i) the Trust Preferred Securities,
(ii) the LLC Preferred Securities and (iii) the Guarantees and the Contingent
Guarantee.
The ABN AMRO Parties understand that the Underwriters propose to make
an offering of the Offered Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered. The ABN AMRO
Parties further understand that no Offered Securities will be offered by the
Underwriters in The Netherlands other than in accordance with the provisions of
Article 3 of the Act of Supervision of Securities Trade 1995.
The ABN AMRO Parties (other than AANAH) have filed with, or
transmitted for filing to, or shall promptly hereafter file with or transmit
for filing to, the Commission a prospectus supplement (in the form so filed or
transmitted for filing, the "Prospectus Supplement") specifically relating to
the Offered Securities pursuant to Rule 424 of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"). The term
"Registration Statement" means the registration statement, as amended to the
date of this Agreement, including the exhibits thereto, schedules thereto, if
any, and the documents incorporated by reference therein pursuant to Item 6 of
Form F-3 under the 1933 Act. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together
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with the Prospectus Supplement. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act"), which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
Section 1. Representations and Warranties by the ABN AMRO Parties. The
ABN AMRO Parties represent and warrant jointly and severally to each
Underwriter as of the date hereof, and as of the Closing Time referred to in
Section 2(c) hereof, and, if applicable, as of each Date of Delivery (as
defined below) as follows:
(a) Compliance with Registration Requirements. The Registration
Statement has been filed on an appropriate form under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the ABN AMRO Parties, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing Time,
and, if applicable, as of each Date of Delivery, the Registration Statement and
any amendments and supplements thereto complied and will comply in all material
respects with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 Act Regulations"), and did not and will not
contain an 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. Neither the Prospectus nor any amendments or supplements thereto,
at the time the
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Prospectus or any such amendment or supplement was issued or at the Closing
Time, and at each Date of Delivery, if any, included or will include an untrue
statement of a material fact or omitted or will omit 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. The representations
and warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the ABN AMRO Parties in writing by any
Underwriter through the Representatives expressly for use in the Registration
Statement or Prospectus.
The Basic Prospectus and preliminary prospectus and the prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act Regulations.
(b) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the
time the Prospectus was issued and at the Closing Time, and at each Date of
Delivery, if any, did not and will not contain an 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.
(c) Independent Accountants. The accountants who certified the
financial statements included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(d) Good Standing of the ABN AMRO Parties. Each of the ABN AMRO
Parties and their subsidiaries has been duly incorporated under the laws of The
Netherlands, or other jurisdiction of incorporation, as the case may be (except
to the extent that the failure to be duly incorporated would not have a
material adverse effect on the ABN AMRO Parties and their subsidiaries, taken
as a whole), the Trust has been duly created as a statutory trust under the
Delaware Trust Act and the LLC has been duly formed as a limited liability
company under the Delaware LLC Act. Each of the ABN AMRO Parties and their
subsidiaries is validly existing and in good standing under the laws of its
respective jurisdiction (where such concept is legally relevant), is duly
qualified to do business and in good standing in each other jurisdiction in
which qualification is necessary for the ownership of its respective properties
or for the conduct of its respective
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businesses (except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the ABN AMRO Parties
and their subsidiaries, taken as a whole). The LLC is and will be treated as a
consolidated subsidiary of AANAH pursuant to Dutch generally accepted
accounting principles. The Trust is and will be classified as a grantor trust
and will not be classified as an association taxable as a corporation for
United States federal income tax purposes.
Each ABN AMRO Party has the power and authority necessary to own or
hold its respective properties, to enter into and perform its respective
obligations under the Transaction Documents (as defined below) to which it is a
party and to conduct the businesses in which it is engaged, as described in the
Prospectus. Neither the Trust nor the LLC is a party to or otherwise bound by
any agreement other than the Transaction Documents.
(e) Authorization of Agreement. At the Closing Time, this Agreement
will have been duly authorized by each of the ABN AMRO Parties. This Agreement
has been duly executed and delivered (if applicable under applicable law) by
each of the ABN AMRO Parties.
(f) Absence of Defaults and Conflicts; Absence of Further
Requirements. None of the ABN AMRO Parties nor any of their subsidiaries is in
violation of the constituent documents, charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which any of the ABN
AMRO Parties or any of their subsidiaries is a party or by which any of them
may be bound, or to which any of the property or assets of any of the ABN AMRO
Parties or any of their subsidiaries is subject, except for such defaults that
would not be material to the ABN AMRO Parties and their subsidiaries, taken as
a whole. The execution, delivery (if applicable under applicable law) and
performance of this Agreement, the Trust Agreement, the LLC Agreement, the
Guarantees, the Contingent Guarantee, the Initial Intercompany Securities, the
Perpetual Non-Cumulative Capital Securities and the Services Agreement to be
dated as of September 30, 2003 among LaSalle Bank, the Guarantor, the Trust and
the LLC (the "Services Agreement" and, together with the Trust Agreement, the
LLC Agreement, the Guarantees, the Contingent Guarantee and the Initial
Intercompany Securities, the "Transaction Documents") by AANAH, LaSalle Bank,
LaSalle Funding, the Bank, the Guarantor, the Trust or the LLC, as the case may
be, and the consummation of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which any of the
ABN AMRO Parties or any of their subsidiaries is a party or by which any of the
ABN
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AMRO Parties or any of their subsidiaries is bound or to which any of the
property or assets of the ABN AMRO Parties or any of their subsidiaries is
subject, nor will such actions result in any violation of the provisions of the
constituent documents, the charter, bylaws, Trust Agreement, Certificate of
Trust, LLC Agreement or Certificate of Formation, as the case may be, of any of
the ABN AMRO Parties or any of their subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the ABN AMRO Parties or any of their subsidiaries or any of
their properties or assets, the effect of which breach, violation or default
would be material to the ABN AMRO Parties and their subsidiaries taken as a
whole; and, except such as have been obtained or required under the 1933 Act or
the 1933 Act Regulations, 1934 Act or the 1934 Act Regulations or state
securities laws and the qualification of the Trust Agreement, the LLC
Agreement, the Guarantees and the Contingent Guarantee under the 1939 Act, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body in The Netherlands or the United
States is required in connection with the offering, issuance, and sale of the
Offered Securities or the consummation of the transactions contemplated by this
Agreement or the execution, delivery and performance by the ABN AMRO Parties of
the Transaction Documents.
(g) Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as otherwise stated therein, (a) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings or business affairs
or business prospects of the ABN AMRO Parties and their subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, (b) there
have been no transactions entered into by any of the ABN AMRO Parties or any of
their subsidiaries, other than those arising in the ordinary course of
business, which are material with respect to the ABN AMRO Parties and their
subsidiaries considered as a whole and (c) except for regular dividends on
ordinary shares or preferred or preference shares, in amounts per share that
are consistent with past practice or the applicable charter document or
supplement thereto, respectively, there has been no dividend or distribution of
any kind declared, paid or made by any of the ABN AMRO Parties on any class of
capital stock.
(h) Investment Company Act. None of the ABN AMRO Parties is, nor after
giving effect to the offering and sale of the Offered Securities and the
application of the net proceeds therefrom as described in the forepart of this
Agreement and in the Prospectus, will be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
(i) Absence of Proceedings. Except as disclosed in the Prospectus,
there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or, to
the knowledge
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of any of the ABN AMRO Parties, threatened against or affecting any of the ABN
AMRO Parties or any of their subsidiaries that is required to be disclosed in
the Prospectus or that would result in any material adverse change in the
consolidated financial position, stockholders' equity or results of operations
of the ABN AMRO Parties and their subsidiaries, taken as a whole, or that could
reasonably be expected to materially and adversely affect the properties or
assets of any of the ABN AMRO Parties or any of their subsidiaries, or that
could adversely affect the consummation of the transactions contemplated in
this Agreement or the performance by each of the ABN AMRO Parties of its
obligations hereunder.
(j) Authorization of Trust Agreement. The Trust Agreement has been
duly authorized by LaSalle Funding and, at the Closing Time, will have been
executed and delivered by LaSalle Funding, as sponsor, and, assuming due
authorization, execution and delivery of the Trust Agreement by the Issuer
Trustees, the Trust Agreement will, at the Closing Time, and at each Date of
Delivery, if any, be a valid and binding obligation of LaSalle Funding
enforceable against LaSalle Funding in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except to the extent that enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) (the "Bankruptcy Exceptions"),
and will conform in all material respects to all statements relating thereto in
the Prospectus; and, at the Closing Time, the Trust Agreement will have been
duly qualified under the 1939 Act.
(k) Authorization of Trust Common Securities. At the Closing Time, the
Trust Common Securities will have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to AANAH against payment therefor
as described in the Registration Statement and Prospectus, will be validly
issued and (subject to the terms of the Trust Agreement) fully paid undivided
beneficial interests in the assets of the Trust and will conform in all
material respects to all statements relating thereto contained in the
Prospectus; the issuance of the Trust Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time, and at each Date
of Delivery, if any, all of the issued and outstanding Trust Common Securities
of the Trust will be directly owned by AANAH free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(l) Authorization of Trust Preferred Securities. At the Closing Time,
the Trust Preferred Securities will have been duly authorized by the Trust
Agreement and, when issued and delivered against payment of the consideration
set forth in this Agreement, will be validly issued and (subject to the terms
of the
8
Trust Agreement) fully paid and non-assessable undivided beneficial interests
in the Trust, will be entitled to the benefits of the Trust Agreement and will
conform in all material respects to all statements relating thereto contained
in the Prospectus; the issuance of the Trust Preferred Securities is not
subject to preemptive or other similar rights; and (subject to the terms of the
Trust Agreement) holders of Trust Preferred Securities will be entitled to the
same limitation of personal liability under Delaware law as extended to
stockholders of private corporations for profit.
(m) Authorization of Guarantees. At the Closing Time, each of the
Guarantees will have been duly authorized by the Guarantor, and AANAH and the
Trust, as initial holders, and, when validly executed and delivered (if
applicable under applicable law) by the Guarantor, and AANAH and the Trust, as
initial holders, and, assuming due authorization, execution and delivery of the
Trust Guarantee by the Guarantee Trustee and by the Underwriters, as initial
holders of the Trust Securities, and the due authorization, execution and
delivery of the LLC Guarantee by the Guarantee Trustee, will each constitute a
valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions. The Guarantees will
conform in all material respects to all statements relating thereto contained
in the Prospectus and, at the Closing Time, will have been duly qualified under
the 1939 Act.
(n) Regular Trustees. Each of the Regular Trustees of the Trust is an
employee or officer of, or affiliated with, AANAH. At the Closing Time, the
Trust Agreement will have been duly executed and delivered by the Regular
Trustees and will be a valid and binding obligation of each Regular Trustee,
enforceable against such Regular Trustee in accordance with its terms, except
to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions.
(o) Authorization of the LLC Agreement. At the Closing Time, the LLC
Agreement will have been duly authorized by AANAH and the Trust and, at the
Closing Time, will have been duly executed and delivered by AANAH and the
Trust, and will be a valid and legally binding obligation of each of AANAH and
the Trust, enforceable against each of AANAH and the Trust in accordance with
its terms, except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions. The LLC Agreement will conform in all material respects
to the description thereof in the Prospectus and, at the Closing Time, will
have been duly qualified under the 1939 Act.
(p) Authorization of the LLC Common Securities. At the Closing Time,
the LLC Common Securities will have been duly authorized by the LLC Agreement
and, when issued and delivered by the LLC to AANAH against payment therefor as
described in the Registration Statement and Prospectus, will
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be validly issued and (subject to the terms of the LLC Agreement) fully paid
undivided beneficial interests in the assets of the LLC and will conform in all
material respects to all statements relating thereto contained in the
Prospectus; the issuance of the LLC Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time, and at each Date
of Delivery, if any, all of the issued and outstanding LLC Common Securities of
the LLC will be directly owned by AANAH free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(q) Authorization of LLC Preferred Securities. At the Closing Time,
the LLC Preferred Securities will have been duly authorized by the LLC
Agreement and, when issued and delivered pursuant to the LLC Agreement against
payment of the consideration set forth therein, will be duly issued and fully
paid and non-assessable, will be entitled to the benefits of the LLC Agreement
and will conform to the description thereof in the Prospectus; the issuance of
the LLC Preferred Securities is not subject to preemptive or other similar
rights.
(r) Authorization of the Contingent Guarantee. At the Closing Time,
the Contingent Guarantee will have been duly authorized by the Guarantor and
the LLC and, when validly executed and delivered (if applicable under
applicable law) by the Guarantor and the LLC, and assuming due authorization,
execution and delivery by the Guarantee Trustee, will constitute a valid and
binding obligation of each of the Guarantor and the LLC, enforceable against
each of the Guarantor and the LLC in accordance with its terms, except to the
extent that enforcement thereof may be limited by the Bankruptcy Exceptions.
The Contingent Guarantee will conform in all material respects to all
statements relating thereto in the Prospectus and, at the Closing Time, will
have been duly qualified under the 1939 Act.
(s) Authorization of Intercompany Securities. At the Closing Time, the
Initial Intercompany Securities will have been duly authorized by the Bank, and
when validly executed and delivered to and paid for by the LLC, will constitute
valid and binding obligations of the Bank, enforceable in accordance with their
terms, except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(t) Authorization of Perpetual Non-Cumulative Capital Securities. At
the Closing Time, the Perpetual Non-Cumulative Capital Securities will have
been duly authorized by the Bank, and when validly executed and delivered in
exchange for corresponding Trust Preferred Securities, will constitute valid
and binding obligations of the Bank, enforceable in accordance with their
terms, except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
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(u) Officer's Certificate. Any certificate signed by an officer of any
of the ABN AMRO Parties or any of their subsidiaries and delivered to the
Underwriters or to counsel for the Underwriters in connection with the offering
of the Offered Securities shall be deemed a representation and warranty by the
relevant ABN AMRO Parties to each Underwriter as to the matters covered thereby
on the date of such certificate.
Section 2. Sale and Delivery to Underwriters, Closing.
(a) Offered Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the initial public offering price set forth in Schedule B, the number
of Trust Preferred Securities set forth in Schedule A opposite the name of such
Underwriter (the "Initial Offered Securities"), plus any additional number of
Trust Preferred Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Option Offered Securities. Subject to the terms and conditions
herein set forth, the ABN AMRO Parties may grant, if so provided in Schedule B,
an option to the Underwriters, severally and not jointly, to purchase up to the
number or aggregate principal amount, as the case may be, of additional Trust
Preferred Securities to cover over-allotments, if any, set forth therein (the
"Option Offered Securities") at a price set forth therein, less an amount equal
to any distributions paid or payable on the Initial Offered Securities but not
payable on the Option Offered Securities. Such option, if granted, will expire
30 days after the date of this Agreement, and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
Offered Securities upon notice by ABN AMRO Incorporated to the ABN AMRO Parties
setting forth the number or aggregate principal amount, as the case may be, of
Option Offered Securities as to which the several Underwriters are then
exercising the option and the time, date and place of payment and delivery for
such Option Offered Securities. Any such time and date of payment and delivery
(each, a "Date of Delivery") shall be determined by ABN AMRO Incorporated, but
shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, unless otherwise agreed
upon by ABN AMRO Incorporated and the ABN AMRO Parties. If the option is
exercised as to all or any portion of the Option Offered Securities, each of
the Underwriters, severally and not jointly, will purchase that proportion of
the total number or aggregate principal amount, as the case may be, of Option
Offered Securities then being purchased which the number or aggregate principal
amount, as the case may be, of Initial Offered Securities each such Underwriter
has severally agreed
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to purchase as set forth on Schedule A bears to the total number or aggregate
principal amount, as the case may be, of Initial Offered Securities, subject to
such adjustments as ABN AMRO Incorporated in its discretion shall make to
eliminate any sales or purchases of a fractional number or aggregate principal
amount, as the case may be, of Option Offered Securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Trust Preferred Securities shall be made at the offices
of Xxxxx Xxxx & Xxxxxxxx or at such other place as shall be agreed upon by the
Representatives and the ABN AMRO Parties, at 9:00 a.m. (Eastern time) on the
fourth business day after the date hereof (unless postponed in accordance with
the provisions of Section 11), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives and the ABN
AMRO Parties (such time and date of payment and delivery being herein called
the "Closing Time"). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option Offered
Securities, payment of the purchase price for, and delivery of such Option
Offered Securities, shall be made at the above mentioned offices of Xxxxx Xxxx
& Xxxxxxxx, or at such other place as shall be agreed upon by ABN AMRO
Incorporated and the ABN AMRO Parties, on the relevant Date of Delivery as
specified in the notice from ABN AMRO Incorporated to the ABN AMRO Parties.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the ABN AMRO Parties, against
delivery to such persons designated by the Representatives for the respective
accounts of the Underwriters of one or more certificates in global form for the
Trust Preferred Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Trust
Preferred Securities which it has agreed to purchase.
The purchase price per Trust Preferred Security to be paid by the
several Underwriters for the Trust Preferred Securities shall be an amount
equal to the initial public offering price as set forth in Schedule B. The
initial public offering price per Trust Preferred Security shall be a fixed
price to be determined by agreement between the Representatives and the ABN
AMRO Parties. The initial public offering price and the purchase price, when so
determined, shall be set forth in Schedule B.
As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Trust Preferred
Securities will be used to purchase LLC Preferred Securities, the proceeds of
which will be invested in Initial Intercompany Securities, the Guarantor hereby
agrees to pay at the Closing Time (and to any relevant Date of Delivery) to the
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Representatives, for the accounts of the several Underwriters, a commission per
Trust Preferred Security set forth on Schedule B.
At the Closing Time (and at any relevant Date of Delivery), the
Guarantor will pay, or cause to be paid, the commission payable at such time to
the Underwriters under Section 2 hereof by wire transfer of immediately
available funds to a bank account designated by the Representatives for the
account of Underwriters.
(d) Denominations; Registration. Certificates for the Trust Preferred
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least one business day before the
Closing Time or the relevant Date of Delivery, as applicable. The Trust
Preferred Securities will be made available for examination and packaging by
the Representatives in The City of New York not later than 9:00 a.m. (Eastern
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as applicable.
Section 3. Covenants of the ABN AMRO Parties. The ABN AMRO Parties
(other than AANAH) covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The ABN AMRO Parties, subject to Section 3(b), will comply with the
requirements of Rule 424(b) of the 1933 Act Regulations and will notify the
Representatives immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Offered Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any of
such purposes. The ABN AMRO Parties will make reasonable efforts to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period when the Underwriters are
required to deliver a prospectus with respect to the Offered Securities, the
ABN AMRO Parties will give the Representatives notice of their intention to
file or prepare any amendment to the Registration Statement or any amendment,
supplement or revision to either the prospectus included in the Registration
13
Statement at the time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. Upon request by the
Underwriters, the ABN AMRO Parties will furnished or deliver to the
Representatives and counsel for the Underwriters, without charge, conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) and conformed copies of all consents and certificates of experts, and
will also deliver to the Representatives, without charge, a conformed copy of
the Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The ABN AMRO Parties have delivered to
each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the ABN AMRO Parties hereby
consent to the use of such copies for purposes permitted by the 1933 Act. The
ABN AMRO Parties will furnish to each Underwriter, without charge, during the
period when the prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The ABN AMRO Parties
will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations with
respect to the offer of the Offered Securities so as to permit the completion
of the distribution of the Offered Securities as contemplated in this Agreement
and in the Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Trust Preferred Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the ABN AMRO
Parties, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the
Registration Statement or amend or supplement the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations, the ABN AMRO
Parties will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be
14
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the ABN AMRO
Parties will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The ABN AMRO Parties will use all
reasonable efforts, in cooperation with the Underwriters, to qualify the
Offered Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions as the Representatives may designate and
to maintain such qualifications in effect for a period of not less than one
year from the effective date of the Registration Statement; provided, however,
that the ABN AMRO Parties shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Offered
Securities have been so qualified, the ABN AMRO Parties will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for a period of not less than one year
from the effective date of the Registration Statement.
(g) Rule 158. The ABN AMRO Parties will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to their security holders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The ABN AMRO Parties will use or cause to be used
the net proceeds received from the sale of the Offered Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(i) Listing. The ABN AMRO Parties will use all reasonable efforts to
effect the listing of the Trust Preferred Securities on the New York Stock
Exchange and the Official Segment of Euronext Amsterdam N.V.'s Stock Market
("Euronext").
(j) Restriction on Sale of Securities. Except as contemplated by this
Agreement, during a period of 30 days from the date of the Prospectus, neither
the Trust nor the LLC nor any other subsidiary of the Guarantor that is similar
to the Trust or the LLC will, without the prior written consent of the
Representatives, directly or indirectly, sell, offer to sell, grant any option
for sale of, or otherwise dispose of, any Trust Preferred Securities or any LLC
Preferred Securities or any security convertible into or exchangeable into or
exercisable for Trust Preferred Securities or LLC Preferred Securities.
15
(k) Reporting Requirements. The ABN AMRO Parties, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
Section 4. Offering by Underwriters. Each Underwriter represents and
agrees that, prior to the publication of the advertisement as mentioned in
Article 47.7 of the Listing and Issuing Rules of Euronext Amsterdam N.V.
(Fondsenreglement), it has not made and will not make any contractually binding
offers (or solicitations of such offers) in respect of the Trust Preferred
Securities to any individual or legal entity in The Netherlands, other than to
individuals or legal entities, who or which trade or invest in securities in
the conduct of a business or profession (which includes banks, firms, insurance
companies, pension funds, investment institutions, central governments, large
international and supranational organisations and treasuries and finance
companies of large enterprises).
Section 5. Payment of Expenses.
(a) Expenses. The ABN AMRO Parties will pay all expenses incident to
the performance of their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, the Transaction Documents and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Offered Securities (other than fees of counsel for the Underwriters
related thereto), (iii) the preparation, issuance and delivery of the
certificates for the Trust Preferred Securities to the Underwriters, (iv) the
fees and disbursements of the ABN AMRO Parties' counsel, accountants, experts
and other advisors, (v) the qualification of the Offered Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of the TIA Trustees, including the reasonable fees and disbursements
of counsel for the TIA Trustees, (viii) any fees payable in connection with the
rating of the Trust Preferred Securities, (ix) the fees and expenses incurred
in connection with the listing of the Trust Preferred Securities on the New
York Stock Exchange and Euronext and (x) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the
16
Underwriters in connection with, the review, if any, by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Offered
Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 6 or Section
10(a)(i) hereof, the ABN AMRO Parties shall reimburse the Underwriters for all
of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 6. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to
the accuracy in all material respects of the representations and warranties of
the ABN AMRO Parties contained in Section 1 hereof and in certificates of any
officer of the ABN AMRO Parties or any subsidiary of the ABN AMRO Parties
delivered pursuant to the provisions hereof, to the performance by each of the
ABN AMRO Parties in all material respects of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at the Closing Time and at any relevant Date
of Delivery, no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. Any prospectus required
to be filed in accordance with Rule 424(b) shall have been filed with the
Commission.
(b) Opinion of Netherlands Counsel. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of Xxxxxxxx Chance Limited Liability Partnership, Netherlands counsel to
the Guarantor, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such opinion for
each of the other Underwriters to the effect set forth in Exhibit A. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the ABN AMRO Parties and certificates of public officials and may contain
other customary or appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(c) Opinion of U.S. Counsel for the ABN AMRO Parties. At the Closing
Time, the Representatives shall have received a written opinion, dated as of
the Closing Time, of Xxxxx Xxxx & Xxxxxxxx, U.S. counsel to the ABN AMRO
Parties, in form and substance reasonably satisfactory to counsel for the
17
Underwriters, together with signed or reproduced copies of such opinion for
each of the other Underwriters to the effect set forth in Exhibit B hereto.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the ABN AMRO Parties and certificates of public officials. Such
opinion also may contain other customary or appropriate assumptions and
qualifications reasonably satisfactory to counsel for the Underwriters.
(d) Opinion of Delaware Counsel for the ABN AMRO Parties. At the
Closing Time, the Representatives shall have received a written opinion, dated
as of the Closing Time, of Xxxxxxxx, Xxxxxx & Finger, P.A., Delaware counsel to
the ABN AMRO Parties, in form and substance reasonably satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such opinion
for each of the other Underwriters to the effect that:
(i) The LLC has been duly formed and is validly existing in
good standing as a limited liability company under the Delaware LLC
Act.
(ii) Under the LLC Agreement and the Delaware LLC Act, the
LLC has all necessary limited liability company power and authority to
conduct its business as described in the Prospectus.
(iii) The LLC Preferred Securities issued to the Trust have
been duly authorized and validly issued and, subject to the
qualifications set forth in paragraph (iv) below, are fully paid and
nonassessable limited liability company interests in the LLC.
(iv) The Trust, as a member of the LLC, shall not be
obligated personally for any of the debts, obligations or liabilities
of the LLC, whether arising in contract, tort or otherwise solely by
reason of being a member of the LLC, except as the Trust may be
obligated to make payments provided for in the LLC Agreement and to
repay any funds wrongfully distributed to it.
(v) The provisions of the LLC Agreement, including the terms
of the LLC Preferred Securities, are permitted under the Delaware LLC
Act.
(vi) The LLC Agreement constitutes a legal, valid and binding
agreement of AANAH and the Trust, and is enforceable against AANAH and
the Trust, in accordance with its terms.
(vii) Under the LLC Agreement and the Delaware LLC Act, the
LLC has all necessary limited liability company power and authority to
execute and deliver the Underwriting Agreement and each of the
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Transaction Documents to which it is a party, and to perform its
obligations thereunder.
(viii) Under the LLC Agreement and the Delaware LLC Act, the
execution and delivery by the LLC of the Underwriting Agreement and
each of the Transaction Documents to which it is a party, and the
performance by the LLC of its obligations thereunder, have been duly
authorized by all necessary limited liability company action on the
part of the LLC.
(ix) The issue and sale by the LLC of the LLC Preferred
Securities to the Trust pursuant to the Underwriting Agreement and the
LLC Agreement, and the performance by the LLC of its obligations under
each of the Transaction Documents to which it is a party, will not
violate (A) any Delaware statute, rule or regulation, or (B) the
Certificate of Formation of the LLC, dated March 28, 2003 or the LLC
Agreement.
(x) No consent, approval, authorization, order, registration,
filing or qualification of or with any Delaware court or Delaware
governmental agency or body is required solely in connection with (A)
the issuance and sale by the LLC of the LLC Preferred Securities to
the Trust as contemplated by the Prospectus, or (B) the execution,
delivery and performance by the LLC of the Underwriting Agreement or
any of the Transaction Documents to which it is a party.
(xi) Under the LLC Agreement and the Delaware LLC Act, the
issuance by the LLC of the LLC Preferred Securities is not subject to
the preemptive purchase rights of any Person.
(xii) The Trust has been duly created and is validly existing
in good standing as a statutory trust under the Delaware Trust Act.
(xiii) Under the Trust Agreement and the Delaware Trust Act,
the Trust has all necessary trust power and authority to conduct its
business as described in the Prospectus.
(xiv) The provisions of the Trust Agreement, including the
terms of the Trust Preferred Securities, are permitted under the
Delaware Trust Act.
(xv) The Trust Agreement constitutes a legal, valid and
binding agreement of the Guarantor, LaSalle Funding and the Trustees,
and is enforceable against the Guarantor, LaSalle Funding and the
Trustees, in accordance with its terms.
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(xvi) The Trust Preferred Securities are duly authorized by
the Trust Agreement and when authenticated, issued and delivered in
accordance with the Trust Agreement, the Trust Preferred Securities
will be duly and validly issued and, subject to the qualifications set
forth in paragraph (xvii) below, fully paid and nonassessable
interests in the Trust.
(xvii) The holders of Trust Preferred Securities, in their
capacity as such, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
We note that the holders may be obligated to make payments as set
forth in Sections 10.02 and 10.08 of the Trust Agreement.
(xviii) Under the Trust Agreement and the Delaware Trust Act,
the Trust has all necessary trust power and authority to execute and
deliver the Underwriting Agreement and the Transaction Documents to
which it is a party, and to perform its obligations thereunder.
(xix) Under the Trust Agreement and the Delaware Trust Act,
the execution and delivery by the Trust of the Underwriting Agreement
and the Transaction Documents to which it is a party, and the
performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust.
(xx) Under the Delaware Trust Act and the Trust Agreement,
the issuance of the Trust Preferred Securities is not subject to any
preemptive purchase rights of any Person.
(xxi) No consent, approval, authorization, order,
registration or qualification of or with any Delaware court or
Delaware governmental agency or Delaware body is required solely in
connection with (A) the issuance and sale by the Trust of the
Preferred Securities to the holders as contemplated by the Prospectus,
and (B) the execution, delivery and performance by the Trust of the
Underwriting Agreement and the Transaction Documents to which it is a
party.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the ABN AMRO Parties and certificates of public
officials. Such opinion may also contain other customary or appropriate
assumptions and qualifications reasonably satisfactory to counsel for the
Underwriters.
(e) Opinion of Counsel for Underwriters. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing
20
Time, of Mayer, Brown, Xxxx & Maw LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, in form and substance satisfactory to the Underwriters.
(f) Opinion of Counsel for the TIA Trustees. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of Xxxxx, Xxxxxx & Xxxxxx, counsel for the TIA Trustees, in form and
substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, to the effect set forth in Exhibit C hereto and to such further
effect as counsel to the Underwriters may reasonably request.
(g) Opinion of Netherlands Tax Counsel. At the Closing Time, the
Representatives shall have received a written opinion, dated as of the Closing
Time, of Xxxxxxxx Chance Limited Liability Partnership, special Netherlands tax
counsel to the ABN AMRO Parties, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such opinion
for each of the other Underwriters. Such opinion shall confirm Xxxxxxxx Chance
Limited Liability Partnership's opinion set forth in the Prospectus under the
caption "Taxation - Netherlands Taxation" and that, subject to the
qualifications set forth therein, the discussion set forth in the Prospectus
under such caption is an accurate summary of the Netherlands tax matters
described therein.
Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the ABN AMRO Parties and certificates of public
officials. Such opinion may also contain other customary appropriate
assumptions and qualifications reasonably satisfactory to counsel for the
Underwriters.
(h) Officers' Certificate. At the Closing Time (and at any relevant
Date of Delivery), there shall not have been, since the date hereof or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the ABN AMRO Parties and
their subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, and the Representatives shall have received a certificate
of officers of each of the ABN AMRO Parties, dated as of the Closing Time, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct in all
material respects with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the ABN AMRO Parties shall have complied in
all material respects with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and, to such officer's knowledge, no
21
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(i) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Ernst & Young
Accountants a letter, dated as of the date hereof, in form and substance
reasonably satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters, 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 the Registration Statement and the
Prospectus, including reports incorporated by reference therein.
(j) Bring-down Comfort Letter. At the Closing Time, the
Representatives shall have received from Ernst & Young a letter, dated as of
the Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (j) of this Section, except that the
specified date referred to shall be a date not more than five business days
prior to the Closing Time.
(k) Maintenance of Rating. At the Closing Time, the Trust Preferred
Securities and the LLC Preferred Securities shall be rated at least "A2" by
Xxxxx'x Investors Service and "A" by Standard & Poor's Ratings Group, a
division of XxXxxx-Xxxx, Inc. , and the ABN AMRO Parties shall have delivered
to the Representatives a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming that
the Trust Preferred Securities and the LLC Preferred Securities have such
ratings. Since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the securities of any of the ABN AMRO
Parties by any "nationally recognized statistical rating agency," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act,
and no such organization shall have publicly announced that it has under
surveillance or review, that does not indicate an improvement, its rating of
any securities of any of the ABN AMRO Parties.
(l) Approval of Listing. At the Closing Time, the Trust Preferred
Securities shall have been approved for listing on the New York Stock Exchange
and Euronext, subject only to official notice of issuance, and approved for
settlement through The Depository Trust Company ("DTC"), Euroclear and
Clearstream.
(m) Over-Allotment Option. In the event that the Underwriters exercise
their option to purchase all or any portion of the Option Offered Securities,
the representations and warranties of the ABN AMRO Parties contained herein and
22
the statements in any certificates furnished by the ABN AMRO Parties hereunder
shall be true and correct as of each Date of Delivery, and, at the relevant
Date of Delivery, the Representatives shall have received:
(i) A certificate, dated such Date of Delivery, of officers
of each of the ABN AMRO Parties, confirming that the certificate
delivered at the Closing Time pursuant to Section 6(h) hereof remains
true and correct as of such Date of Delivery.
(ii) The favorable opinion of Xxxxxxxx Chance Limited
Liability Partnership, Netherlands counsel to the Guarantor, in form
and substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Offered Securities and
otherwise to the same effect as the opinion required by Section 6(b)
hereof.
(iii) The favorable opinion of Xxxxx, Polk & Xxxxxxxx, U.S.
counsel to the ABN AMRO Parties, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Offered Securities and otherwise to the same effect as the
opinion required by Section 6(c) hereof.
(iv) The favorable opinion of Xxxxxxxx, Xxxxxx & Finger,
P.A., Delaware counsel to ABN AMRO Parties, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Offered Securities and otherwise to
the same effect as the opinion required by Section 6(d) hereof.
(v) The favorable opinion of Mayer, Brown, Xxxx & Maw,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Offered Securities and otherwise to the same effect as the
opinion required by Section 6(e) hereof.
(vi) The favorable opinion of Xxxxx, Xxxxxx & Xxxxxx, counsel
for the TIA Trustees, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Offered Securities and otherwise to the same effect as the
opinion required by Section 6(f) hereof.
(vii) The favorable opinion of Xxxxxxxx Chance Limited
Liability Partnership, special Netherlands tax counsel to the ABN AMRO
Parties, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Offered Securities and otherwise to the same effect as the opinion
required by Section 6(g) hereof.
23
(viii) A letter from Ernst & Young, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to the Representatives pursuant to Section 6(i) hereof, except that
the "specified date" on the letter furnished pursuant to this
paragraph shall be a date not more than three business days prior to
such Date of Delivery.
(ix) Since the date of this Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to
the securities of any of the ABN AMRO Parties by any "nationally
recognized statistical rating agency," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no
such organization shall have publicly announced that it has under
surveillance or review, that does not indicate an improvement, its
rating of any securities of any of the ABN AMRO Parties.
(n) Additional Documents. At the Closing Time, and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Offered Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the ABN AMRO Parties in
connection with the issuance and sale of the Offered Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled in all material respects when and as
required to be fulfilled, this Agreement (or, with respect to the Underwriters'
exercise of any applicable over allotment option for the purchase of Option
Offered Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase the Option Offered Securities on
such Date of Delivery) may be terminated by the Representatives by notice to
the ABN AMRO Parties at any time at or prior to the Closing Time (or such Date
of Delivery, as applicable), and such termination shall be without liability of
any party to any other party except as provided in Section 5 and except that
Sections 1, 7, 8 and 9 shall survive any such termination and remain in full
force and effect.
Section 7. Indemnification.
(a) Indemnification of Underwriters. The ABN AMRO Parties agree,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, as follows:
24
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Guarantor; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and disbursements
of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the indemnity set forth in this Section 7(a)
shall not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
furnished to the ABN AMRO Parties by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
The foregoing indemnity with respect to any untrue statement or
alleged untrue statement contained in or omission or alleged omission from a
preliminary prospectus shall not inure to the benefit of the Underwriter (or
any person
25
controlling such Underwriter) from whom the person asserting any loss,
liability, claim, damage or expense purchased any of the Offered Securities
which are the subject thereof if the ABN AMRO Parties shall sustain the burden
of proving that such person was not sent or given a copy of the Prospectus (or
the Prospectus as amended or supplemented) if so required by law at or prior to
the written confirmation of the sale of such Offered Securities to such person
and the untrue statement contained in or omission from such preliminary
prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented) and the ABN AMRO Parties had previously furnished copies thereof
to such Underwriter.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter, severally in proportion to its respective purchase obligation and
not jointly, agrees to indemnify and hold harmless the ABN AMRO Parties,
directors or Supervisory or Managing Board members or the equivalent of the ABN
AMRO Parties, the Issuer Trustees of the Trust, each of the officers of the ABN
AMRO Parties who signed the Registration Statement, and each person, if any,
who controls any of the ABN AMRO Parties within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the ABN AMRO Parties by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 7(a) above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section
7(b) above, counsel to the indemnified parties shall be selected by the ABN
AMRO Parties, provided that if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the
26
indemnified parties defendant in such action (which approval shall not be
unreasonably withheld), unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any one
firm of local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 7 or Section 8 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for reasonable fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding
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, an indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party
27
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
Section 8. Contribution.
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the ABN AMRO Parties on the one hand
and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement 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 ABN AMRO Parties on the one hand and
of the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the ABN AMRO Parties on the one hand
and the Underwriters on the other hand in connection with the offering of the
Offered Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses but
after deducting the total underwriting commission received by the Underwriters)
received by the ABN AMRO Parties and the total underwriting commission received
by the Underwriters, in each case as set forth on the cover of the Prospectus,
bear to the aggregate initial public offering price of the Offered Securities
as set forth on such cover.
The relative fault of the ABN AMRO Parties on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the ABN AMRO Parties or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The ABN AMRO Parties and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8. The
aggregate amount
28
of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 8 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Trust Preferred Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any 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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director or Supervisory or Managing Board member or the equivalent of
the ABN AMRO Parties, the Regular Trustees of the Trust, each officer of the
ABN AMRO Parties who signed the Registration Statement, and each person, if
any, who controls any of the ABN AMRO Parties within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the ABN AMRO Parties. The Underwriters' respective obligations
to contribute pursuant to this Section 8 are several in proportion to the
number of Trust Preferred Securities set forth opposite their respective names
in Schedule A hereto and not joint.
Section 9. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the ABN AMRO Parties or any of
their subsidiaries submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the ABN AMRO
Parties, and shall survive delivery of the Trust Preferred Securities to the
Underwriters.
Section 10. Termination of Agreement.
29
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Guarantor or AANAH, at any time at or prior to the
Closing Time or any relevant Date of Delivery (i) if there has been, since the
time of execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs or
business prospects of the ABN AMRO Parties and their subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof, declaration by the United States or the
Netherlands of a national emergency or war or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Trust Preferred Securities or to enforce contracts
for the sale of the Trust Preferred Securities, or (iii) if trading in any
securities of the ABN AMRO Parties has been suspended or materially limited by
the Commission, the New York Stock Exchange, or Euronext or if trading
generally on the American Stock Exchange or the New York Stock Exchange or
Euronext or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such
system or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal, New York State, Illinois or
Netherlands authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 5 hereof, and provided further that
Sections 1, 7, 8 and 9 shall survive such termination and remain in full force
and effect.
Section 11. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time or
the relevant Date of Delivery, as the case may be, to purchase the Trust
Preferred Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, the Representatives
shall not have completed such arrangements within such 24-hour period, then:
30
(i) if the number of Defaulted Securities does not exceed 10%
of the aggregate number of the Trust Preferred Securities to be
purchased hereunder, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate number of the Trust Preferred Securities to be purchased
hereunder, this Agreement (or, with respect to the Underwriters'
exercise of any applicable over allotment option for the purchase of
Option Offered Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the ABN
AMRO Parties to sell, such Option Offered Securities on such Date of
Delivery) shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or (ii) in the case of a Date of Delivery after
the Closing Time, a termination of the obligations of the Underwriters and the
ABN AMRO Parties with respect to the related Option Offered Securities, as the
case may be, either the Representatives or the Guarantor or AANAH shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements.
Section 12. Notices.
All notices, requests, statements and other communications hereunder
shall be in writing and shall be delivered or sent by mail, messenger or any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives c/o ABN AMRO Incorporated, 00 X. 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx - Syndications (fax no.:
000-000-0000); and notices to the Guarantor shall be directed to ABN AMRO
Holding N.V. at Xxxxxxxxxxxxx 00, 0000 XX, Xxxxxxxxx, Xxxxxxxxx: Group Asset
and Liability Management, (fax no.: 00 00 000 0000), to AANAH, LaSalle Funding,
LaSalle Bank, the Trust and the LLC shall be directed to AANAH, 000 X. XxXxxxx
Xxxxxx, Xxxxxxx, Xx 00000, Attention: Chief Legal Officer, with copies to Xxxxx
Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxxx Xxxxxx, Esq. Any such notice, request, statement or communication
shall be effective upon receipt thereof.
31
Section 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, and the ABN AMRO Parties and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the ABN
AMRO Parties and their respective successors and the controlling persons and
officers and directors and Supervisory and Managing Board members or the
equivalent referred to in Sections 7 and 8 and Regular Trustees and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the ABN AMRO Parties and
their respective successors, and said controlling persons and officers and
directors and Supervisory and Managing Board members or the equivalent and
Regular Trustees and their heirs and legal representatives, and for the benefit
of no other person, firm or corporation. No purchaser of Trust Preferred
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 14. Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME.
(b) Submission to Jurisdiction. Each of the Guarantor and the Bank
irrevocably consents and agrees, for the benefit of each Underwriter, that any
legal action, suit or proceeding against it with respect to its obligations,
liabilities or any other matter arising out of or in connection with this
Agreement may be brought in the courts of the State of New York or the courts
of the United States of America located in The City of New York and until
amounts due and to become due in respect of the Offered Securities or otherwise
under this Agreement have been paid, hereby irrevocably consents and submits to
the non-exclusive jurisdiction of each such court in personam, generally and
unconditionally with respect to any such action, suit or proceeding for itself
and in respect of its properties, assets and revenues. Service of process upon
AANAH in any such action, suit or proceeding shall be deemed in every respect
service of process upon the Guarantor and the Bank. The Guarantor and the Bank
hereby irrevocably and unconditionally waive, to the fullest extent permitted
by law, except as otherwise provided for in the Transaction Documents, any
objection which it may now or hereafter have to the laying of venue of any of
the aforesaid actions, suits or proceedings brought in the United States
Federal courts located in
32
The City of New York or the courts of the State of New York and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum. The provisions of this Section 14
shall survive any termination of this Agreement, in whole or in part.
(c) No Sovereign Immunity. To the extent that the Guarantor, the Bank
or any of their properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any thereof, from setoff or counterclaim, from the
jurisdiction of any court, from service of process from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, the Transaction Documents or the Offered Securities, the
Guarantor and the Bank hereby irrevocably and unconditionally waive, and agree
not to plead or claim, any such immunity and consents to such relief and
enforcement.
(d) Judgment Currency. The Guarantor and the Bank agree to indemnify
the Underwriters against any loss incurred by the Underwriters, as a result of
any judgment or order given or made for any amount due hereunder or under the
Offered Securities and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than U.S. dollars (the "Obligation
Currency"), and as a result of any variation as between (i) the rate of
exchange at which the Obligation Currency amount is converted into Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which an Underwriter is able to purchase the Obligation Currency
with the amount of the Judgment Currency actually received by such Underwriter.
The foregoing indemnity shall constitute a separate and independent obligation
of the Guarantor and the Bank and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. In determining the
rate of exchange, any premiums and costs of exchange payable in connection with
the purchase of, or conversion into, the relevant currency shall be taken into
account.
Section 15. Effect of Headings.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
* * *
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the ABN AMRO Parties a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the ABN AMRO Parties in accordance with
its terms.
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:
ABN AMRO CAPITAL FUNDING TRUST VI
By: LASALLE FUNDING LLC, as Depositor
By:
--------------------------------------
Name:
Title:
ABN AMRO CAPITAL FUNDING LLC VI
By: ABN AMRO NORTH AMERICA HOLDING
COMPANY, as Sole Member
By:
--------------------------------------
Name:
Title:
LASALLE FUNDING LLC
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
ABN AMRO NORTH AMERICA HOLDING COMPANY
By:
--------------------------------------
Name:
Title:
LASALLE BANK CORPORATION
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
ABN AMRO INCORPORATED
ABN AMRO FINANCIAL SERVICES, INC.
Acting severally on behalf of itself
and as Representatives of the other
Underwriters named in Schedule A hereto.
By: ABN AMRO INCORPORATED
By:
----------------------------------
Name:
---------------------------
Title:
---------------------------
SCHEDULE A
--------------------------------------------------------------------------------
Name of Underwriter Number of Trust Preferred Securities
--------------------------------------------------------------------------------
ABN AMRO Incorporated 2,000,000
--------------------------------------------------------------------------------
ABN AMRO Financial Services, Inc. 4,809,000
--------------------------------------------------------------------------------
Banc of America Securities LLC 238,200
--------------------------------------------------------------------------------
Xxxxxxx Xxxxxx & Co., Inc. 238,200
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx & Associates, Inc. 238,200
--------------------------------------------------------------------------------
U.S. Bancorp Xxxxx Xxxxxxx Inc. 238,200
--------------------------------------------------------------------------------
Xxxxx Fargo Securities, LLC 238,200
--------------------------------------------------------------------------------
SA-1
SCHEDULE B
Final Terms and Conditions
Issuer: ABN AMRO Capital Funding Trust VI (the
"Trust"), a Delaware statutory trust, is a
direct wholly owned subsidiary of ABN AMRO
North America Holding Company ("AANAH"),
and is also an indirect wholly owned
subsidiary of ABN AMRO Holding N.V. ("the
Guarantor"). The sole assets of the Trust
will be the LLC's Preferred Securities
issued by ABN AMRO Capital Funding LLC V
(the "LLC"). The LLC is organized as a
limited liability company under the laws
of the State of Delaware and is a direct
wholly owned subsidiary of AANAH and an
indirect wholly owned subsidiary of the
Guarantor, and is the issuer of the LLC
Preferred Securities. The sole assets of
the LLC will be the Intercompany
Securities to be issued by ABN AMRO Bank
N.V. (the "Bank").
Guarantor: ABN AMRO Holding N.V., the holding company
of the Bank, a public limited liability
corporation organized under the laws of
The Netherlands, and its successors.
Preferred Securities Ratings: A2/A (Moody's/Standard & Poor's)
Pricing Date: September 25, 2003
Settlement Date: September 30, 2003
Maturity Date: Perpetual
Offer Price: $25.00 per Trust Preferred Security
SB-1
Securities Offered: 8,000,000 Noncumulative Guaranteed Trust
Preferred Securities (the "Trust Preferred
Securities")
Underwriting Fee: The Guarantor will pay a commission of
$6,300,000 to the Underwriters.
Dividends: Dividends will be payable quarterly on the
last day of September, December, March and
June of each year commencing December 31,
2003, at a fixed rate per annum of 6.25%
of the liquidation preference on a
non-cumulative basis.
Additional Amounts: All payments in respect of the Trust
Preferred Securities will be made without
withholding or deduction for or on account
of any relevant tax, unless the
withholding or deduction of such relevant
tax is required by law. In that event, the
Trust will pay, as further dividends, such
additional amounts as may be necessary in
order that the net amounts received by the
holders of the Trust Preferred Securities
after such withholding or deduction will
equal the amount which would have been
received in respect of the Trust Preferred
Securities in the absence of such
withholding or deduction.
Optional Redemption: The Trust Preferred Securities will be
redeemed in whole or in part upon the
redemption of the LLC Preferred
Securities. The LLC Preferred Securities
may be redeemed with the prior approval of
the Dutch Central Bank and the Guarantor
at the option of the LLC on any dividend
date occurring on or after September 30,
2008 at a redemption price equal to the
liquidation preference plus any
accumulated and unpaid Dividends.
SB-2
Special Event Redemption: The LLC will have the right to redeem in
whole but not in part the LLC Preferred
Securities, and consequently the Trust
Preferred Securities upon the occurrence
of a Capital Event, Tax Event, or
Investment Company Event prior to
September 30, 2008 at a redemption price
equal to the liquidation preference plus
any accumulated and unpaid Dividends. If
an Investment Company Event occurs with
respect to the LLC, the LLC preferred
securities may be distributed to the
holders of the trust preferred securities.
If the LLC preferred securities are
distributed, the Guarantor will use its
commercially reasonable efforts to cause
the LLC preferred securities to be listed
on the New York Stock Exchange and
Euronext or on such other national
securities exchange or similar
organization as the trust preferred
securities are then listed or quoted.
Guarantee: The Guarantor will guarantee any payments
with respect to Dividends and the
Liquidation Preference of the Trust
Preferred Securities and LLC Preferred
Securities. The Guarantee constitutes an
unsecured obligation of the Guarantor and
will rank junior to all indebtedness of
the Guarantor, pari passu with any parity
guarantees and senior to its ordinary
shares.
Regulatory Event: If a Regulatory Event occurs, then the
Trust Preferred Securities issued by the
Trust will be exchanged for perpetual,
non-cumulative capital securities of ABN
AMRO Bank N.V. A Regulatory Event occurs
when the Bank is notified by the regulator
to the effect that at any Initial
Intercompany Security interest payment
date, the Bank's capital adequacy ratio
would, after such payment of such
interest, be less than the minimum capital
adequacy requirements as then applied and
enforced by the regulator.
Use of Proceeds: All of the proceeds from the sale of the
Trust Preferred Securities will be
invested by the Trust in the LLC Preferred
Securities. The LLC will use the funds
from the sale of the LLC Preferred
Securities, together with funds
contributed by ABN AMRO North America
Holding Company, in return for the LLC
Common Securities, to make an investment
in the Initial Intercompany Securities
issued by ABN AMRO Bank N.V. (the "Bank").
The Bank will use the proceeds from the
sale of the Initial Intercompany
Securities for general corporate purposes.
Greenshoe Option: The underwriters may purchase up to an
additional 1,200,000 trust preferred
securities (15% of the total trust
preferred securities offered) at the
public offering price solely to cover
over-allotments within 30 days. If the
underwriters exercise this option in whole
or in part, ABN AMRO Holding N.V. will pay
underwriting commissions as set forth
above.
Listing: New York Stock Exchange and the Official
Segment of the stock market of Euronext
Amsterdam N.V.
DRD Eligible: No
CUSIP: 00000X000
ISIN: US00080V2034
Listing: NYSE
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Exhibit A
Form of Opinion of Xxxxxxxx Chance Limited Liability Partnership
1.1 Corporate Status, Power and Capacity
1.1.1 Holding is registered as: (i) a public limited liability company
(naamloze vennootschap), (ii) incorporated on 30 May 1990 and (iii)
validly existing under the laws of The Netherlands.
Bank is registered as: (i) a public limited liability company
(naamloze vennootschap), (ii) incorporated on 7 February 1825 and
(iii) validly existing under the laws of The Netherlands.
The Companies have:
the corporate power and corporate capacity to execute the Documents to which
they are expressed to be a party, (in respect of Bank) to create and issue the
Intercompany Securities and to undertake and perform the obligations expressed
to be assumed by the Companies therein; and
taken all internal corporate action required by the Articles of Association and
by Dutch corporate law to approve and to authorise the same.
1.1.2 The court registry of the Civil Law Section (Sector Civiel Recht) of
the Court of first instance (Rechtbank) of Amsterdam has confirmed to
us by telephone at the time and date hereof that the Companies have
not been declared bankrupt (failliet) and have not been made the
subject of Special Measures at the time and the date hereof.
1.1.3 The Chamber has confirmed to us by telephone on the time and date
hereof that:
(a) the Companies have not registered a voluntary winding-up
resolution;
(b) such Chamber is not itself taking any steps to have the
Companies dissolved;
(c) it has not registered an order placing any assets of the
Companies under administration (onderbewindstelling); and
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(d) there is no registration of any order by the Court of first
instance (Rechtbank) for the dissolution (ontbinding en
vereffening) of the Companies.
1.1.4 The searches and enquiries referred to above do not determine
conclusively whether or not the matters or events enquired after have
occurred or not. There is no formal register of judgments,
declarations or orders referred to in paragraph 1.1.2 or 1.1.3 (c) or
(d) above.
1.2 Execution of Intercompany Securities and other Documents
1.2.1 When any Intercompany Securities are duly executed on behalf of Bank
in the manner set out in such counsel's opinion and completed,
authenticated, delivered and paid for in accordance with the terms of
the Documents, such Intercompany Securities have been validly executed
by Bank and constitute the valid and legally binding obligations of
Bank enforceable against it in accordance with their terms.
1.2.2 Each of the other Documents to which it is expressed to be a party,
when executed by all parties thereto and on behalf of the Companies in
the manner set out in such counsel's opinion, has been validly
executed and delivered on behalf of the Companies and constitutes the
valid and legally binding obligations of the Companies enforceable
against them in accordance with their respective terms.
1.3 Authorisations, Consents and Approvals
No authorisations, consents or approvals of, and no licence or order
of, any court, governmental agency or body of The Netherlands are
required under the laws and regulations of The Netherlands for (or in
connection with):
(i) the creation, issue and offering of the Intercompany
Securities in or from The Netherlands;
(ii) the execution by the Companies of the Documents to which they
are expressed to be a party and the performance of their
respective obligations thereunder; or
(iii) the payment by the Companies, when due, of all sums which
they may be liable to pay in respect of the Intercompany
Securities or under the
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other Documents to which they are expressed to be a party in
the currency in which they are stated to be payable.
1.4 Conflict with Laws or Articles of Association
In themselves, none of the matters referred in paragraphs 1.3 (i)
through (iii) conflicts or will conflict with or result in a breach of
any provision of (or constitute a breach of or default under):
(i) the Articles of Association; or
(ii) any law or generally applicable regulation of The Netherlands
to which the Companies are subject,
which would make the Documents, or parts thereof, null or void or
subject to avoidance or nullification in The Netherlands.
1.5 Qualification to do Business
It is not necessary under the laws of The Netherlands (a) in order to
enable any party thereto (other than the Companies) to enforce its
rights under the Documents or (b) by reason of the execution of the
Documents or the performance by it of its obligations thereunder, that
any party thereto (other than the Companies) should be licensed,
qualified or otherwise entitled to carry on business in The
Netherlands.
1.6 Filings and Registrations
It is not necessary under the laws of The Netherlands to notarise,
file, register or otherwise record in any public office or elsewhere
the Documents, or to comply with any other formality in relation
thereto in order to ensure the validity, effectiveness, enforceability
or admissibility in evidence of the Documents or any other documents
relating thereto. However the Companies are obliged to comply with (a)
all reporting obligations to DNB under the ASCS and (b) all
notification, reporting and registration requirements of DNB in
connection with the issue of the Intercompany Securities and all
payments in respect of the Documents to or from non-residents of The
Netherlands in accordance with the General Reporting Instructions 2003
(Rapportagevoorschriften betalingsbalansrapportages 2003) issued by
DNB pursuant to the External Financial Relations Xxx 0000 (Wet
financiele
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betrekkingen buitenland 1994), although a failure to perform any of
the foregoing formalities should not adversely affect the validity,
effectiveness, enforceability or admissibility in evidence of the
Documents or any payment made or to be made thereunder.
1.7 Submission to Jurisdiction
1.7.1 The submission by the Companies to the jurisdiction of (a) the courts
of the State of New York with regard to any proceedings arising out of
or in relation to the Documents (other than the Dutch Documents) and
(b) the courts of The Netherlands with regard to any proceedings
arising out of or in relation to the Dutch Documents, is valid and
binding upon the Companies.
1.7.2 Notwithstanding a contractual provision to the contrary, however, the
competent court in The Netherlands may assume jurisdiction (i)
pursuant to Article 254 of the Dutch Code of Civil Procedure (Wetboek
van Burgerlijke Rechtsvordering) in urgent matters, when, in view of
the interests of the parties, provisional measures are required, or
(ii) to allow provisional measures for the duration of the litigation
at the request of each party to pending litigation pursuant to Article
223 of the Dutch Code of Civil Procedure. Furthermore, notwithstanding
any contractual provision to the contrary, jurisdiction of Dutch
courts may arise in the context of an attachment against the Companies
or any of their respective assets.
1.8 Enforceability of Foreign Judgments in The Netherlands
1.8.1 In the absence of an applicable treaty or convention providing for the
recognition and enforcement of judgements in civil and commercial
matters which is binding in The Netherlands, a judgement rendered by a
foreign court against the Companies in an action instituted in the
manner contemplated by the relevant instrument based on one or more of
the Documents (other than the Dutch Documents) will not be recognised
and enforced by the courts of The Netherlands.
1.8.2 In order to obtain a judgement that is enforceable against the
Companies, it will be necessary to relitigate the matter before the
competent court of The Netherlands and to submit the judgement
rendered by the foreign court in the course of such proceedings, in
which case the Netherlands courts may give such effect to the foreign
judgement as it deems appropriate. There are no
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treaties between The Netherlands and the United States of America on
the recognition and enforcement of civil or commercial judgements.
However, according to current practice, based upon case law,
Netherlands courts will in all probability recognise, give "res
juridicata" to and render a judgement in accordance with a foreign
judgement if and to the extent that the following conditions are met:
(i) the foreign court rendering the judgement has jurisdiction
over the matter on internationally accepted grounds (e.g. if
the parties have agreed, for example in a contract, to submit
their disputes to the foreign court) and has conducted the
proceedings in accordance with generally accepted principles
of fair trial (e.g. after proper service of process);
(ii) the foreign judgement is final and definitive; and
(iii) such recognition is not in conflict with Netherlands policy
(i.e. a fundamental principle of Netherlands law) or an
existing Netherlands judgement.
1.9 Choice of Law
The courts of The Netherlands will observe and give effect to the
choice of the laws of (a) the State of New York as the law governing
the Documents (other than the Dutch Documents) and (b) The Netherlands
as the law governing the Dutch Documents in any proceedings in
relation such documents but when applying New York State law as the
law governing the Documents (other than the Dutch 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"):
(i) 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 the
Documents (article 7(1) Rome Convention);
(ii) will apply the law of The Netherlands in a situation where it
is mandatory irrespective of the law otherwise applicable to
the Documents (article 7(2) Rome Convention);
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(iii) may refuse to apply New York State law if such application is
manifestly incompatible with the public policy of The
Netherlands (article 16 Rome Convention); and
(iv) 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) Rome Convention).
1.10 Guarantee Agreements
1.10.1 As the Trust Guarantee Agreement and the LLC Guarantee Agreement (the
"Guarantee Agreements") by their terms are guarantees for the benefit
of each Holder from time to time of a Trust Security or an LLC
Preferred Security, as the case may be, and contain a provision to the
effect that no rights thereunder shall exist for a Holder or former
Holder other than those of such Holder with respect to the Trust
Securities or LLC Preferred Security held by him, it is our view that
the rights of a Holder under the Dutch Security, with respect to a
Trust Security or an LLC Preferred Security, as the case may be, that
is transferred to a subsequent Holder, will be transferred as a matter
of law to that subsequent Holder, pursuant to section 6:251 of the
Netherlands Civil Code. It should be noted, however, that we are not
aware of any legal precedent concerning such a transfer or of any
legal writer specifically addressing this issue. Furthermore, section
6:251 of the Netherlands Civil Code is not applicable in the case of a
transfer of a Trust Security or an LLC Preferred Security as a
consequence of a general transfer (onder algemene titel) of assets of
a Holder (such as may be the case inter alia upon a legal merger or
upon a person's death). In that case the rules applicable to such
general transfer should decide as to the effects of such transfer on
the rights under the Guarantee Agreements.
1.10.2 In addition to a transfer under section 6:251 of the Netherlands Civil
Code a subsequent Holder of a Trust Security or an LLC Preferred
Security, as the case may be, may, as long as the agreements pursuant
to which the Guarantee Agreements are created continue unaltered,
become entitled to the rights under the Guarantee Agreements with
respect to that Trust Security or an LLC Preferred Security, as the
case may be, by accepting the third party beneficiary right
(derdenbeding) set forth in Section 5.09 of the Guarantee Agreements.
As the third party beneficiary right is irrevocable and without
consideration for the
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subsequent Holder pursuant to Section 5.09 of the Guarantee
Agreements, such subsequent Holder is under section 6:253 sub
paragraph 4 of the Netherlands Civil Code deemed to have accepted such
right, if he has become aware of the right and has not immediately
rejected it. It should be noted that acceptance by a subsequent Holder
of a Trust Security or an LLC Preferred Security, as the case may be,
of the rights under the Guarantee Agreements after Holding has been
declared bankrupt or become subject to Special Measures or otherwise
has lost the legal capacity to enter into an agreement with the
subsequent Holder will not be effective.
1.11 Taxation
We hereby confirm the opinion set forth in the Prospectus Supplement
under the caption "Taxation-Netherlands Taxation". The discussion set
forth in the Prospectus Supplement under such caption is an accurate
summary of the Netherlands tax matters described therein.
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Exhibit B
Form of Opinion of Xxxxx Xxxx & Xxxxxxx
1. Assuming the due authorization, execution and delivery by the parties
thereto, each of the Trust Guarantee, the LLC Guarantee, the Trust
Agreement and the LLC Agreement have been qualified under the 1939 Act;
2. None of ABN AMRO Parties is, or after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
therefrom as described in the Prospectus, will be required to register as
an "investment company" under the 1940 Act;
3. No consent, approval, registration, filing, authorization or order of, or
qualification with, any governmental body or agency under United States
federal or New York state law that in our experience is normally
applicable in relation to transactions of the type contemplated by the
Underwriting Agreement, is required for the performance by the ABN AMRO
Parties of their obligations under the Underwriting Agreement except such
as have been obtained and such as may be required under state securities
or Blue Sky laws in connection with the offer and sale of the Offered
Securities;
4. The performance by the ABN AMRO Parties of their respective obligations
under the Underwriting Agreement and the Transaction Documents will not
contravene any statute of the State of New York or the United States, or
any order, rule or regulation of any governmental agency or body of the
United States or the State of New York that in our experience is normally
applicable to transactions of the type contemplated by the Underwriting
Agreement and the Transaction Documents;
5. Assuming the Underwriting Agreement has been duly authorized, executed and
delivered by the Guarantor and the Bank insofar as Dutch law is concerned,
the Underwriting Agreement has been duly authorized, executed and
delivered by the Guarantor, the Bank and AANAH and is a valid and binding
agreement of each of the Guarantor, the Bank and AANAH, except as rights
to indemnity and contribution thereunder may be limited by applicable law;
6. Assuming each of the Services Agreement, the Intercompany Securities, the
Trust Agreement and the LLC Agreement has been duly authorized, executed
and delivered by the Guarantor insofar as Dutch law is concerned, each of
them has been duly authorized, executed and delivered by the ABN AMRO
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Parties and is a valid and binding agreement of each of the ABN AMRO
Parties, enforceable against each of the ABN AMRO Parties in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and by general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity);
7. To the best of our knowledge, there is no pending or threatened action,
suit or proceeding before any New York or federal court or governmental
agency, authority or body involving the ABN AMRO Parties or any of their
subsidiaries of a character required to be disclosed in the Prospectus
that is not adequately disclosed as required;
8. Assuming each of the Trust Guarantee, the LLC Guarantee and the Contingent
Guarantee (together with the Trust Securities Guarantee and the Company
Preferred Securities Guarantee, the "Guarantees") has been duly
authorized, executed and delivered by the Guarantor insofar as Dutch law
is concerned, Sections 3 and 4 of the Guarantees each constitute a valid
and binding agreement of Holding, enforceable against Holding in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity);
9. Assuming the due authorization, execution and delivery by the parties
thereto, the Perpetual Non-Cumulative Capital Securities will constitute a
valid and binding agreement of each ABN AMRO Party thereto, enforceable
against such ABN AMRO Party in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws now or
hereafter in effect relating to or affecting creditors' rights generally
and by general principals of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity);
10. We have considered the statements included in the Prospectus under the
captions "Taxation-U.S. Taxation," "Prospectus Summary--The Trust,"
"Prospectus Summary--The LLC," "Prospectus Summary--The Formation,"
"Prospectus Summary --The Offering," "ABN AMRO Capital Funding Trust V,"
"ABN AMRO Capital Funding LLC V," "Description of the Trust Securities,"
"Description of the Perpetual Non-cumulative Capital Securities,"
"Description of the LLC Securities," "Description of the Guarantees and the
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Contingent Guarantee," "Description of the Initial Intercompany
Securities" and "Certain ERISA Considerations". In our opinion, in each
case insofar as such statements constitute a summary of the legal matters
or documents referred to therein, such statements fairly present in all
material respects such legal matters or documents and insofar as such
statements purport to summarize certain federal income tax laws of the
United States, such statements constitute a fair summary of the principal
U.S. federal income tax consequences of an investment in the Trust
Preferred Securities.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified the information furnished with respect to, other matters in
the Registration Statement or the Prospectus, but we have generally reviewed
and discussed with certain officers and employees of, and Dutch counsel and
independent accountants for, the ABN AMRO Parties and with representatives of
the Underwriters and counsel for the Underwriters the information furnished,
whether or not subject to our check and verification. On the basis of such
consideration, review and discussion, but without independent check and
verification, except as stated, (1) the Registration Statement and the
Prospectus (except for financial statements and other financial and statistical
data included or incorporated by reference therein and the related Form T-1s
filed on Form 305B2, as to which we do not express any belief) appear on their
face to be appropriately responsive in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, (2) nothing has come to our attention that has caused us to believe
that (except for financial statements and other financial and statistical data
included or incorporated by reference therein and the related Form T-1s filed
on Form 305B2, as to which we do not express any belief) the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, in each case as of its date and as of the date hereof, included any
untrue statement of a material fact or omitted 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, and (3) the documents
incorporated by reference in the Prospectus (except for financial statements
and other financial and statistical data included therein, as to which we do
not express any belief) comply as to form in all material respects with the
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder. For purposes of clauses
(1), (2) and (3) of this paragraph, the term "financial data" includes, without
limitation, the data required to be included in the Registration Statement and
Prospectus under the Act by Guide 3, Statistical Disclosure by Bank Holding
Companies.
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Exhibit C
Form of Opinion of Xxxxx, Xxxxxx & Xxxxxx
1. BNY Midwest Trust Company, as Property Trustee, Guarantee Trustee and
Manager Trustee (collectively, the "BNY Trustee"), is an Illinois trust company
organized and validly existing and in good standing under the laws of Illinois
and is authorized and qualified to accept the trusts imposed by the Trust
Agreement and to act as Property Trustee under the Trust Agreement for the
Trust Preferred Securities.
2. Each of the Transaction Documents has been duly authorized, executed
and delivered by the BNY Trustee.
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