EXHIBIT 99(K)(9)
DEBT SECURITIES SUBSCRIPTION AGREEMENT
THIS DEBT SECURITIES SUBSCRIPTION AGREEMENT dated as of this ____ day of
November, 1998, by and between Aldobrandini (UK) Company, a special purpose
unlimited company incorporated under the laws of England and Wales (the "U.K.
Company"), and ANZ Exchangeable Preferred Trust II, 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. 333-65849 and 811-
09069) and Pre-Effective Amendment No. 1 thereto contemplating the offering (the
"Offering") of up to ____________ of its Trust Units Exchangeable for Preference
SharesSM ("TrUEPrSSM"), 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 preference
shares, liquidation preference US$6.25 per share, designated as the 1998
Preference Shares (Series 2) (the "ANZ Preference Shares"), issued by Australia
and New Zealand Banking Group Limited, or (ii) cash in an amount of US$25 per
TrUEPrS, plus the accrued dividend distributions thereon for the current
quarterly dividend period;
WHEREAS, the Trust has sold 4,000 TrUEPrS (the "Initial TrUEPrS") to ML IBK
Positions, Inc. ("ML IBK") in accordance with the requirements of the Investment
Company Act of 1940, as amended;
WHEREAS, the Purchaser desires to use the proceeds of the Offering and the
sale of the Initial TrUEPrS to purchase initially from the U.K. Company
US$___________ aggregate principal amount of Mandatorily Redeemable Debt
Securities due 2048 (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 2048 (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 ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & 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,
including payment by the U.K. Company of any facility fee referred to in
Section 5, as stated in the applicable Notice (as defined herein), 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 product of (i) US$25 and (ii) the
number of TrUEPrS so purchased for a purchase price equal to the proceeds
received by the Trust for such purchase of TrUEPrS. The Purchaser agrees
to notify the U.K. Company in writing prior to any such purchase setting
forth in such notice (the "Notice") the aggregate principal amount of such
Additional Debt Securities to be purchased and the time and date of payment
and delivery of such Additional Debt Securities.
1.2 CLOSING. The purchase and sale of the Initial Debt Securities
shall take place at the offices of ▇▇▇▇▇ & Wood llp, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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 (as defined
in the Purchase Agreement) 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.
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:
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(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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co.,
Jersey Counsel for Aldobrandini (Investments) Limited (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
England and Wales 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 Ordinary Share Application, dated November ____, 1998, by the
U.K. Company to the Jersey Subsidiary (the "49% Ordinary Shares
Application"), the U.K. Company Ordinary Shares Application, dated November
____, 1998, by the U.K. Company to the Jersey Holding Company, the Jersey
Preference Shares Subscription Agreement, dated November ___, 1998, between
the U.K. Company and the Jersey Subsidiary, the Jersey Subsidiary Ordinary
and Nominal Shares Purchase Agreement, to be dated November ___, 1998,
between the U.K. Company and the Jersey Holding Company (the "Jersey
Subsidiary Ordinary and Nominal Shares Purchase Agreement"), the
Management, Company Secretarial and General Administration Agreement, to be
dated November ___, 1998, between the U.K. Company and Volaw Trust and
Corporate Services Limited (the "U.K. Company Management Agreement"), the
Jersey Preference Shares Security and Pledge Agreement, the ADRs Security
and Pledge Agreement, the U.K. Company Reimbursement Agreement, the Jersey
Subsidiary Expense Agreement, to be dated November ___, 1998, between the
U.K. Company and the Jersey Subsidiary, 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;
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2.2 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);
2.3 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);
2.4 The U.K. Company is not 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,
the "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 pursuant to the Agreements and
Instruments; nor will such action result in any violation of the provisions of
the memorandum and articles of association, charter, by-laws or other
organizational documents of the U.K. Company 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
foreign, having jurisdiction over the U.K. Company or any of its 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;
2.5 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;
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2.6 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;
2.7 The U.K. Company is not in violation of any law, ordinance, governmental
rule or regulation or administrative or court order or decree to which it is
subject; the U.K. Company possesses 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 it, and is 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 the U.K.
Company has not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses;
2.8 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 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;
2.9 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;
2.10 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;
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2.11 (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 those agreements governed by English or Jersey law) 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), the Jersey Subsidiary 49% Ordinary Shares Application, the U.K. Company
Ordinary Shares Subscription Application and the U.K. Company Management
Agreement, 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 (other than those agreements governed by English or Jersey law) 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;
2.12 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 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
2.13 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
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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);
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
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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;
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 of 1933, as amended, 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 disposition will not require registration of such Debt Securities
under the Securities Act of 1933, as amended.
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:
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(a) "IN THE UNITED STATES, THESE SECURITIES 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
THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE TRUSTEES OF ANZ EXCHANGEABLE PREFERRED
TRUST II 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
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 Subsidiary Ordinary and Nominal Shares 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 Subsidiary or all or substantially 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 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
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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 $__________ 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. In addition,
in connection with the issuance of any Additional Debt Securities in the event
of the exercise by the Underwriters of all or any portion of the Over-Allotment
Option, the U.K. Company may pay to the Purchaser at the Purchaser's request as
specified in the applicable Notice, on the relevant Closing Date, a facility fee
in connection with the payment of the costs associated with such issuance.
6. MISCELLANEOUS.
6.1 CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the meanings set forth in the Amended and Restated Trust
Agreement, to be dated as of November 6, 1998, among the Trustees of the
Purchaser, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as depositor, ML IBK, 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 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
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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 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
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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 CURRENCY. 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 order being expressed and paid in a currency (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
6.10):
The Trust: ANZ Exchangeable Preferred Trust II
c/o Puglisi & Associates
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The U.K. Company: Aldobrandini (UK) Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Telecopier: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
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 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 II
By: __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
ALDOBRANDINI (UK) COMPANY
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
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