EXHIBIT (k)(9)
DEBT SECURITIES SUBSCRIPTION AGREEMENT
THIS DEBT SECURITIES SUBSCRIPTION AGREEMENT dated as of this ____ day of
September, 1998, by and between Xxxxxxxx (UK) Company, a special purpose
unlimited company incorporated under the laws of England and Wales (the "U.K.
Company"), and ANZ Exchangeable Preferred Trust, a business trust created
pursuant to the Business Trust Act of the State of Delaware (Chapter 38, Title
12, of the Delaware Code, 12 Del. C. (Sections 3801 et seq.)) (such trust and
the trustees thereof acting in their capacities as such being referred to herein
as the "Purchaser").
WHEREAS, the Purchaser has filed with the Securities and Exchange
Commission a registration statement on Form N-2 (File Nos. 333-58751 and 811-
08865) and Pre-Effective Amendments Nos. 1, 2 and 3 thereto contemplating the
offering (the "Offering") of up to__________ of its Trust Units Exchangeable for
Preference Shares(SM) ("TrUEPrS(SM)"), the terms of which contemplate that the
Purchaser will distribute to the Holders of TrUEPrS, upon the occurrence of an
Exchange Event, either (i) American Depositary Receipts ("ADRs") evidencing, for
each TrUEPrS, one American Depositary Share ("ADS") representing four fully paid
non-cumulative preference shares, liquidation preference US$6.25 per share (the
"ANZ Preference Shares"), issued by Australia and New Zealand Banking Group
Limited or (ii) cash in an amount of US$25 per TrUEPrS, plus the accrued
dividend distributions thereon for the current quarterly dividend period;
WHEREAS, the Purchaser desires to use the proceeds of the Offering to
purchase initially from the U.K. Company US$_________ aggregate principal amount
of Mandatorily Redeemable Debt Securities due 2047 (the "Initial Debt
Securities") issued by the U.K. Company;
WHEREAS, the U.K. Company desires to sell the Initial Debt Securities to
the Purchaser; and
WHEREAS, the U.K. Company desires to provide for the further issuance of up
to US $__________ aggregate principal amount of Mandatorily Redeemable Debt
Securities due 2047 (the "Additional Debt Securities" and together with the
Initial Debt Securities, the "Debt Securities") if and only to the extent that
the Underwriters exercise their over-allotment option with respect to TrUEPrS
granted by the Purchaser pursuant to the Purchase Agreement (the "Over-Allotment
Option").
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(SM) Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF THE DEBT SECURITIES.
1.1 SALE AND ISSUANCE OF THE DEBT SECURITIES. (a) Subject to the
terms and conditions of this Agreement, including payment by the U.K.
Company of the facility fee referred to in Section 5, the U.K. Company
agrees to sell to the Purchaser, and the Purchaser agrees to purchase from
the U.K. Company, the Initial Debt Securities issued by the U.K. Company,
at a purchase price equal to the aggregate principal amount thereof.
(b) Subject to the terms and conditions of this Agreement, on
each date on which TrUEPrS are purchased pursuant to the Over-Allotment
Option, the U.K. Company agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the U.K. Company, an aggregate principal amount of
Additional Debt Securities equal to the proceeds of such TrUEPrs.
1.2 CLOSING. The purchase and sale of the Initial Debt Securities
shall take place at the offices of Xxxxx & Wood llp, Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at the Closing Time (as defined in the
Purchase Agreement) (such time and date of payment being herein called the
"Initial Closing Date").
The closing of any issuance of Additional Debt Securities shall take
place at the above-referenced offices on the Date of Delivery of the
TrUEPrS the purchase of which causes such issuance (each such date,
together with the Initial Closing Date, a "Closing Date").
On each Closing Date, the U.K. Company shall deliver to the Purchaser
a certificate representing the Debt Securities purchased by the Purchaser.
Payment for the Debt Securities shall be made on the applicable Closing
Date by the Purchaser by wire transfer in immediately available funds, of
an amount equal to the purchase price of the Debt Securities purchased by
the Purchaser.
1.3 CONDITIONS TO CLOSING. The obligations of the Purchaser
hereunder on each Closing Date are subject to the accuracy of the
representations and warranties of the U.K. Company contained in Section 2
hereof or in certificates of any officer of the U.K. Company, delivered
pursuant to the provisions hereof, to the performance by the U.K. Company
of its obligations hereunder, to the condition that the related purchase of
TrUEPrS pursuant to the Purchase Agreement shall have been consummated and
to the following further conditions:
(a) Opinion of Counsel for the U.K. Company. On each Closing
Date, the Purchaser shall have received the favorable opinion, dated
as of the applicable
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Closing Date, of Linklaters & Paines, U.K. Counsel for the U.K.
Company, substantially in the form delivered pursuant to the Purchase
Agreement.
(b) Opinion of Counsel for the Jersey Subsidiary. On each
Closing Date, the Purchaser shall have received the favorable opinion,
dated as of the applicable Closing Date, of Xxxxxxx Xxxxxx & Co.
Jersey Counsel for the Jersey Subsidiary, substantially in the form
delivered pursuant to the Purchase Agreement.
(c) U.K. Company Officers' Certificate. On each Closing Date,
the Purchaser shall have received a certificate of executive officers
of the U.K. Company, dated as of the applicable Closing Date, to the
effect that (i) the representations and warranties in Section 2
hereof are true and correct and (ii) the U.K. Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the applicable Closing Date.
(d) Listing. On the Initial Closing Date, the Debt Securities
shall have been approved for listing on the Luxembourg Stock Exchange.
2. REPRESENTATIONS AND WARRANTIES OF THE U.K. COMPANY. On each Closing
Date, the U.K. Company hereby represents and warrants to the Purchaser that:
2.1 The U.K. Company has been duly organized and is validly existing
as a special purpose unlimited company in good standing under the laws of
the United Kingdom and has corporate power and authority to own, lease and
operate its properties and to conduct its business and to enter into and
perform its obligations under this Agreement and each of the Jersey
Subsidiary Subscription Agreement, dated September __, 1998, between
the U.K. Company and the Jersey Subsidiary, the U.K. Company Subscription
Agreement, to be dated September __, 1998, between the U.K. Company and the
Jersey Holding Company, the Jersey Subsidiary Ordinary Share Purchase
Agreement, to be dated September __, 1998, between the U.K. Company and the
Jersey Holding Company ("Jersey Ordinary Share Purchase Agreement"), the
Management Agreement and General Administration Agreement, dated to be
September __, 1998, between the U.K. Company and Volaw Trust and Corporate
Services Limited, the Jersey Preference Shares Security and Pledge
Agreement, the ADRs Security and Pledge Agreement, the U.K. Company
Reimbursement Agreement, the Expense and Indemnity Agreement and the other
agreements or instruments to which the U.K. Company is a party (the
"Fundamental U.K. Company Agreements"); and the U.K. Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business;
2.2 The U.K. Company has one subsidiary, Xxxxxxxx (Investments)
Limited (the "Jersey Subsidiary"); the Jersey Subsidiary has been duly
organized and is validly existing as a corporation in good standing under
the laws of Jersey, the Channel Islands, has corporate power and authority
to own, lease and operate its properties and to conduct its business and is
duly qualified as a foreign corporation to transact business and is in
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good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business; all of the issued and outstanding capital stock of the Jersey
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the U.K. Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
and none of the outstanding shares of capital stock of the Jersey
Subsidiary was issued in violation of any preemptive or similar rights
arising by operation of law, or under the charter or by-laws thereof, or
under any agreement or instrument to which the Jersey Subsidiary is a
party;
2.3 The Debt Securities have been duly authorized and, when issued
and delivered against payment of the purchase price therefor, will be duly
executed and delivered by the U.K. Company to the Purchaser and will
constitute valid and binding obligations of the U.K. Company entitled to
the benefits and enforceable against the U.K. Company in accordance with
their terms, except as the enforcement of rights and remedies may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws now or hereafter in effect relating to creditors' rights, and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
2.4 This Agreement has been duly and properly executed and delivered
by the U.K. Company and constitutes a legal, valid and binding agreement of
the U.K. Company enforceable against the U.K. Company in accordance with
its terms, except as the enforcement of rights and remedies may be limited
by bankruptcy, insolvency, reorganization, moratorium, or other similar
laws now or hereafter in effect relating to creditors' rights, and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
2.5 Neither the U.K. Company nor the Jersey Subsidiary is in
violation of its memorandum or articles of association or other
organizational document 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 it is a party or by which it may
be bound, or to which any of its property or assets is subject
(collectively, "Agreements and Instruments"); the execution, delivery and
performance of this Agreement and the Fundamental U.K. Company Agreements
and the consummation of the transactions contemplated herein and therein
and compliance by the U.K. Company with its obligations thereunder have
been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or a Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the U.K.
Company or the Jersey Subsidiary pursuant to the Agreements and
Instruments; nor will such action result in any violation of the provisions
of the respective memorandum and articles of association, charter, by-laws
or other organizational documents of the U.K. Company or the Jersey
Subsidiary, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality, stock exchange authority or court, domestic or
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foreign, having jurisdiction over the U.K. Company or the Jersey Subsidiary
or any of their assets or properties (other than any state securities or
"blue sky" law, statute, rule or regulation, as to which no representation
or warranty is made); as used herein, a "Repayment Event" means any event
or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the U.K. Company or the Jersey Subsidiary;
2.6 There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the U.K. Company, threatened, against
or affecting the U.K. Company or the Jersey Subsidiary;
2.7 No declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency or any stock exchange authority,
domestic or foreign, is necessary or required for the execution, delivery
or performance by the U.K. Company of this Agreement, the Fundamental U.K.
Company Agreements or the consummation by the U.K. Company of the
transactions contemplated herein and therein, except such as have been
already obtained or as may be required under the Securities Act of 1933, as
amended (the "Securities Act"), or the rules and regulations promulgated
thereunder or state securities laws;
2.8 Neither the U.K. Company nor the Jersey Subsidiary is in
violation of any law, ordinance, governmental rule or regulation or
administrative or court order or decree to which the U.K. Company or the
Jersey Subsidiary is subject; the U.K. Company and the Jersey Subsidiary
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, and are in
compliance with the terms and conditions of all such Governmental Licenses;
all of the Governmental Licenses are valid and in full force and effect;
and neither the U.K. Company nor the Jersey Subsidiary has received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses;
2.9 Except for the rights of the Purchaser, the Collateral Agent and
the Jersey Subsidiary under the Jersey Preference Shares Security and
Pledge Agreement and the ADRs Security and Pledge Agreement, the U.K.
Company has all right, title and interest in and to the Jersey Preference
Shares and the ADSs representing the ANZ Preference Shares pledged by it
under the Jersey Preference Shares Security and Pledge Agreement and the
ADRs Security and Pledge Agreement, respectively, free and clear of all
Liens (as defined in each of the Jersey Preference Shares Security and
Pledge Agreement and the ADRs Security and Pledge Agreement) (other than
the Lien created by such agreements and any Lien created by the Purchaser)
and Transfer Restrictions (as defined in each of the Jersey Preference
Shares Security and Pledge Agreement and the ADRs Security and Pledge
Agreement) (other than Transfer Restrictions created by such agreements and
Transfer Restrictions created by the Purchaser), and has the right, power
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and authority to pledge and has legally and validly pledged such Jersey
Preference Shares as provided in the Jersey Preference Shares Security and
Pledge Agreement and validly hypothecated its security interest in the ADSs
representing the ANZ Preference Shares to the Purchaser as provided in the
ADRs Security and Pledge Agreement;
2.10 No stamp duty or similar tax or duty is payable under applicable
laws or regulations of the United Kingdom in connection with the creation,
issuance, delivery, of, or the performance by the U.K. Company under, the
Debt Securities or with respect to the execution, delivery and performance
by the parties thereto of this Agreement and the Fundamental U.K. Company
Agreements;
2.11 Payments made by the U.K. Company under the Debt Securities will
not be subject under the current laws of the United Kingdom or any
political subdivision thereof to any withholdings or similar charges for
or on account of taxation;
2.12 (a) The choice of the laws of the State of New York as the
governing law of this Agreement and each of the Fundamental U.K. Company
Agreements (other than as set forth in the Jersey Preference Shares
Security and Pledge Agreement) and (b) the choice of the laws of Jersey,
the Channel Islands as the governing law of the Jersey Preference Shares
Security and Pledge Agreement (to the extent necessary to ensure that the
security interest created thereunder is enforceable under Jersey law), in
each case, is a valid choice of law under the laws of the United Kingdom
and any political subdivision thereof and courts of the United Kingdom
should honor the applicable choice of law; the U.K. Company has the power
to submit and pursuant to this Agreement and the Fundamental U.K. Company
Agreements has legally, validly, effectively and irrevocably submitted to
the non-exclusive personal jurisdiction of the State or Federal court in
the Borough of Manhattan, City and State of New York in any suit, action or
proceeding against it arising out of or related to any of such agreements
or with respect to its obligations, liabilities or any other matter arising
out of or in connection with the sale of the Debt Securities by the U.K.
Company to the Purchaser under this Agreement and has validly and
irrevocably waived any objection to the venue of a proceeding in any such
court; and has the power to designate, appoint and empower and pursuant to
Section 6.7 of this Agreement has legally, validly, effectively and
irrevocably designated, appointed and empowered an agent for service of
process in any suit or proceeding based on or arising under this Agreement
in any federal or state court in the State of New York;
2.13 Any final judgment for a fixed or readily calculable sum of
money rendered by any court of the State of New York or of the United
States located in the State of New York having jurisdiction under its own
domestic laws in respect of any suit, action or proceeding against the U.K.
Company based upon any instruments or agreements entered into for the
consummation of the transactions contemplated herein would be declared
enforceable against the U.K. Company by the courts of the United Kingdom
without reexamination, review of the merits of the cause of action in
respect of which the original judgment was given or relitigation of the
matters adjudicated upon or payment of any stamp, registration or similar
tax or duty, provided that (A) the judgment is consistent with public
policy in the United Kingdom and any relevant political subdivision, (B)
the judgment was not given or obtained by fraud or in a manner contrary
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to natural justice, (C) the judgment was not based on a clear mistake of
law or fact, (D) the judgment was not directly or indirectly for the
payment of taxes or other charges of a like nature or of a fine or other
penalty, and (E) the judgment is for a fixed sum; and the U.K. Company is
not aware of any reason why the enforcement in the United Kingdom of such a
judgment in respect of any of the instruments or agreements executed for
consummation of the transactions contemplated herein would be contrary to
public policy in the United Kingdom or any political subdivision thereof;
and
2.14 It is not necessary under the laws of the United Kingdom or any
political subdivision thereof or authority or agency therein in order to
enable the Purchaser to enforce its rights under the Debt Securities, this
Agreement and each of the Fundamental U.K. Company Agreements, as the case
may be, that it should, as a result solely of its holding of the Debt
Securities, be licensed, qualified or otherwise entitled to carry on
business in the United Kingdom or any political subdivision thereof or
authority or agency therein; the Debt Securities, this Agreement and each
of the Fundamental U.K. Company Agreements are in proper legal form under
the laws of the United Kingdom and any political subdivision thereof or
authority or agency therein for the enforcement thereof against the U.K.
Company therein; and it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of the Debt Securities or any
of this Agreement and each of the Fundamental U.K. Company Agreements in
the United Kingdom or any political subdivision thereof or authority or
agency therein that any of them be filed or recorded or enrolled with any
court, authority or agency in, or that any stamp, registration or similar
taxes or duties be paid to any court, authority or agency of the United
Kingdom or any political subdivision thereof.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. On each Closing Date,
the Purchaser hereby represents and warrants to the U.K. Company that:
3.1 The Purchaser is a validly existing business trust under the
Delaware Act and has full power and authority to execute and deliver this
Agreement and to perform and observe the provisions hereof, except as
performance may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights, and general principles of equity (regardless of whether
the enforceability of such performance is considered in a proceeding in
equity or at law);
3.2 The execution, delivery and performance of this Agreement by the
Purchaser do not contravene any requirement of law or any material
transactional restriction or material agreement binding on or affecting the
Purchaser or any of its assets;
3.3 This Agreement has been duly and properly executed and delivered
by the Purchaser and constitutes a legal, valid and binding agreement of
the Purchaser enforceable against the Purchaser in accordance with its
terms, except as the enforcement of rights and remedies may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
now or hereafter in effect relating to creditors' rights, and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
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3.4 No declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
execution, delivery or performance by the Purchaser of this Agreement or
the consummation by the Purchaser of the transactions contemplated herein
and therein, except such as have been already obtained or as may be
required under the Securities Act or the rules and regulations promulgated
thereunder or state securities laws;
3.5 This Agreement is made by the U.K. Company with the Purchaser in
reliance upon the Purchaser's representation to the U.K. Company, which by
the Purchaser's execution of this Agreement the Purchaser hereby confirms,
that the Debt Securities are being acquired for investment for the
Purchaser's own account, and not as a nominee or agent and not with a view
to the resale or distribution by the Purchaser of any of the Debt
Securities, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the Debt
Securities, in either case in violation of any securities registration
requirement under applicable law, but subject nevertheless, to any
requirement of law that the disposition of its property shall at all times
be within its control. By executing this Agreement, the Purchaser further
represents that the Purchaser does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of
the Debt Securities;
3.6 The Purchaser acknowledges that it can bear the economic risk of
the investment for an indefinite period of time and has such knowledge and
experience in financial and business matters (and particularly in the
business in which the U.K. Company operates) as to be capable of evaluating
the merits and risks of the investment in the Debt Securities. The
Purchaser is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act of 1933, as amended (the "Securities
Act");
3.7 The Purchaser understands that the Debt Securities are
characterized as "restricted securities" under the United States securities
laws inasmuch as they are being acquired from the U.K. Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such Debt Securities may be resold without
registration under the Securities Act only in certain circumstances. In
this connection, the Purchaser represents that it understands the resale
limitations imposed by the Securities Act and is generally familiar with
the existing resale limitations imposed by Rule 144;
3.8 The Purchaser further agrees not to make any disposition directly
or indirectly of all or any portion of the Debt Securities unless and
until:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(b) The Purchaser shall have furnished the U.K. Company with an
opinion of counsel, reasonably satisfactory to the U.K. Company, that
such
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disposition will not require registration of such Debt Securities
under the Securities Act.
Notwithstanding the provisions of subsections (a) and (b) above, no
such registration statement or opinion of counsel shall be necessary for a
transfer by the Purchaser to any affiliate of the Purchaser, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if it were the original Purchaser hereunder; and
3.9 It is understood that the certificate evidencing the Debt
Securities may bear either or both of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for
sale, pledged or hypothecated in the absence of a registration
statement in effect with respect to the securities under such Act or
an opinion of counsel reasonably satisfactory to the Trustees of ANZ
Exchangeable Preferred Trust that such registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
The Purchaser and the U.K. Company agree that the legend contained in
the paragraph (a) above shall be removed at the holder's request when it is
no longer necessary to ensure compliance with federal securities laws.
4. COVENANTS OF THE U.K. COMPANY.
The U.K. Company agrees that, during the term of this Agreement and
for so long as the TrUEPrS remain outstanding, the U.K. Company will not
(i) sell or otherwise transfer the ordinary shares of the Jersey Subsidiary
owned by it to any person (other than pursuant to, and in accordance with
the terms of, the Jersey Ordinary Share Purchase Agreement) or (ii)
commence a proceeding for an order that the Jersey Subsidiary be wound up
or for the appointment of a provisional liquidator, liquidator,
administrator, controller or similar official in respect of the Jersey
Subsidary or all or subtantially all of its property and it will (x) use
its best efforts to prevent the issuance of any other order to wind up the
Jersey Subsidiary or any other appointment of a provisional liquidator,
liquidator, administrator, controller or similar official in respect of the
Jersey Subsidiary or all or substantially all of its property and (y)
exercise its voting rights to ensure that:
(a) the Jersey Subsidiary will not change its Memorandum and
Articles of Association (unless such change has been consented
to by the record holders of more than 50% of the TrUEPrs or, in
the opinion of competent legal counsel selected by the Trust,
such change would not have a material adverse impact on the
rights of the holders of the
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TrUEPrS and, in either case, will not cause an Exchange Event to
occur);
(b) the Jersey Subsidiary will not change its business purpose (as
specified in its Memorandum and Articles of Association); and
(c) (i) the Jersey Subsidiary will not commence a proceeding for an
order that the Jersey Subsidiary be wound up or for the
appointment of a provisional liquidator, liquidator,
administrator, controller or similar official in respect of the
Jersey Subsidiary or all or substantially all of its property;
and (ii) the Jersey Subsidiary will use its best efforts to
prevent the issuance of any other order that the Jersey
Subsidiary be wound up or any appointment of a provisional
liquidator, liquidator, administrator, controller or similar
official in respect of the Jersey Subsidiary or all or
substantially all of its property.
5. PAYMENT OF FACILITY FEE.
The U.K. Company hereby agrees to pay to the Purchaser on the Initial
Closing Date a facility fee in the amount of US $630,000 in connection with the
payment of the organizational costs of the Purchaser and the costs associated
with the registration of the TrUEPrS and the Offering.
6. MISCELLANEOUS.
6.1 CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the meanings set forth in the Second Amended and Restated Trust
Agreement, to be dated as of September __, 1998, among the Trustees of the
Purchaser, ML IBK Positions, Inc., as Sponsor, and the Holders of TrUEPrS.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. No amendment or
modification of this Agreement shall be valid unless the amendment or
modification is in writing and is signed by all parties to this Agreement.
6.3 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
6.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
6.5 LIMITATION ON LIABILITY OF THE PURCHASER. Notwithstanding
anything to the contrary contained herein, no recourse shall be had,
whether by levy or execution or otherwise, for any claim based on this
Agreement or in
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respect hereof against any incorporator, shareholder or affiliate of the
Purchaser or the Trustees, the Administrator, the Custodian or the Paying
Agent or any predecessor, successor or affiliate of the Purchaser and of
the aforesaid persons, or any of their assets, or against any principal,
partner, incorporator, shareholder, officer, director, agent or employee of
any of the aforesaid persons, under any rule of law, equitable principle,
statute or constitution, or by the enforcement of any assessment or
penalty, or otherwise, nor shall any of such persons be personally liable
for any such amounts or claims, or liable for any deficiency judgment based
thereon or with respect thereto, and that all such liability of the
aforesaid persons is expressly waived and released as a condition of, and
as consideration for, the execution of this Agreement by the Purchaser.
Notwithstanding the foregoing, it is understood that the Purchaser shall
not be liable for any loss, damages, cost, liability or claim based on this
Agreement or in respect hereof or any expense (including the reasonable
costs of investigation, preparation for and defense of legal and/or
administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements) incurred in connection with any such
loss, damages, cost, liability or claim in an amount in excess of the
amount received by the Purchaser under the Trust Expense Agreement and the
Expense and Indemnity Agreement in connection with such loss, damages,
cost, liability or claim. Notwithstanding anything to the contrary
contained herein, nothing in this Section shall be construed to affect or
limit the Purchaser's obligations under this Agreement.
6.6 LIMITATION ON LIABILITY OF THE U.K. COMPANY. Notwithstanding
anything to the contrary contained herein, no recourse shall be had,
whether by levy or execution or otherwise, for any claim based on this
Agreement or in respect hereof against any incorporator, shareholder,
officer, director, agent or employee of the U.K. Company or any
predecessor, successor or affiliate of the U.K. Company, or any of their
assets, under any rule of law, equitable principle, statute or
constitution, or by the enforcement of any assessment or penalty, or
otherwise, nor shall any of such persons be personally liable for any such
amounts or claims, or liable for any deficiency judgment based thereon or
with respect thereto, and that all such liability of the aforesaid persons
is expressly waived and released as a condition of, and as consideration
for, the execution of this Agreement by the U.K. Company. Notwithstanding
the foregoing, it is understood that the U.K. Company shall not be liable
for any loss, damages, cost, liability or claim based on this Agreement or
in respect hereof or any expense (including the reasonable costs of
investigation, preparation for and defense of legal and/or administrative
proceedings related to a claim against it and reasonable attorneys' fees
and disbursements) incurred in connection with any such loss, damages,
cost, liability or claim in an amount in excess of the amount received by
the U.K. Company under the Expense and Indemnity Agreement in connection
with such loss, damages, cost, liability or claim. Notwithstanding anything
to the contrary contained herein, nothing in this Section shall be
construed to affect or limit the U.K. Company's obligations under this
Agreement.
6.7 CONSENT TO JURISDICTION. The U.K. Company agrees that any legal
suit, action or proceeding brought by the Purchaser or by any person
controlling the Purchaser, arising out of or based upon this Agreement may
be instituted in any State or Federal court in the Borough of Manhattan,
City and State of New York, and, to the
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fullest extent permitted by law, waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the non-exclusive jurisdiction of such court in any
suit, action or proceeding. The U.K. Company has appointed CT Corporation
System as its authorized agent (the "Authorized Agent") upon which process
may be instituted in any State or Federal court in the Borough of
Manhattan, City and State of New York by the Purchaser and expressly
accepts the jurisdiction of any such court in respect of such action. Such
appointment shall be irrevocable unless and until a successor authorized
agent, located or with an office in the Borough of Manhattan, City and
State of New York, shall have been appointed by the U.K. Company and such
appointment shall have been accepted by such successor authorized agent.
The U.K. Company represents and warrants that CT Corporation System has
agreed to act as said agent for service of process, and agrees to take any
and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent
and written notice of such service to the U.K. Company shall be deemed, in
every respect, effective service of process upon the U.K. Company.
Notwithstanding the foregoing, any action based on this Agreement may be
instituted by the Purchaser in any competent court in the United Kingdom.
6.8 JUDGMENT CURRENTCY. The U.K. Company hereby agrees to indemnify
the Purchaser against any loss incurred by the Purchaser as a result of any
judgment or order being given or made for any amount due hereunder and such
judgment or such order being expressed and paid in a curreny (the "Judgment
Currency") other than U.S. dollars and as a result of any variation as
between (i) the rate of exchange at which the U.S. dollar amount is
converted into the Judgment Currency for the purpose of such judgment or
order, and (ii) the rate of exchange at which the Purchaser would have been
able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by the Purchaser had the Purchaser utilized such amount
of Judgment Currency to purchase U.S. dollars as promptly as practicable
upon the receipt thereof. The foregoing indemnity shall constitute a
separate and independent obligation of the U.K. Company and shall continue
in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include an allowance for any
customary or reasonable premium and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
6.9 WAIVER OF IMMUNITIES. To the extent that the U.K. Company or
any of its 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 set-off or process, from attachment upon or prior to
judgment, from attachment in aid of execution of 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, hereby irrevocably and unconditionally, to
the extent permitted by applicable law, waives, and agrees not to plead or
claim, any such immunity and consents to such relief and enforcement.
6.10 NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as
follows (or to such other address for a particular party as shall be
specified by such party in a like notice given pursuant to this Section
5.8):
The Trust:
ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
The U.K. Company: Xxxxxxxx (UK) Company
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Telecopier: 00-000-000-0000
Attention: Company Secretary
Except as otherwise specifically provided herein, all notices and
other communications provided for hereunder shall be in writing and shall
be deemed to have been duly given if either (i) personally delivered
(including delivery by courier service or by Federal Express or any other
nationally recognized overnight delivery service for next day delivery) to
the offices set forth above, in which case they shall be deemed received on
the first Business Day by which delivery shall have been made to said
offices, (ii) transmitted by any standard form of telecommunication to the
offices set forth above, in
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which case they shall be deemed received on the first Business Day by which
a standard confirmation that such transmission occurred is received by the
transmitting party (unless such confirmation states that such transmission
occurred after 5:00 P.M. on such first Business Day, in which case delivery
shall be deemed to have been received on the immediately succeeding
Business Day), or (iii) sent by certified mail, return receipt requested to
the offices set forth above, in which case they shall be deemed received
when receipted for unless acknowledgment of receipt is refused (in which
case delivery shall be deemed to have been received on the first Business
Day on which such acknowledgment is refused).
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ANZ EXCHANGEABLE PREFERRED TRUST
By __________________________________
Xxxxxx X. Xxxxxxx, as Managing Trustee
XXXXXXXX (UK) COMPANY
By ___________________________________
Name:
Title:
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