EXHIBIT 99 (k)(9)
DEBT SECURITIES SUBSCRIPTION AGREEMENT
THIS DEBT SECURITIES SUBSCRIPTION AGREEMENT dated as of this ____ day
of September, 1998, by and between Cuzzano (UK) Company, a special purpose
unlimited company incorporated under the laws of England and Wales and domiciled
in the United Kingdom (the "U.K. Company"), and NAB Exchangeable Preferred
Trust, a business trust created pursuant to the Business Trust Act (the
"Delaware 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. 333-60719 and
811-08939) and Pre-Effective Amendments Nos. 1 and 2 thereto contemplating the
offering (the "Offering") of up to _________ of its Trust Units Exchangeable for
Preference Shares-SM- (the "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 two fully
paid non-cumulative preference shares, liquidation preference US$12.50 per
share (the "NAB Preference Shares"), issued by National Australia Bank Limited
(A.C.N. 004 044 937) ("NAB"), or (ii) cash in an amount of US$25 per TrUEPrS,
plus the accrued dividend distributions thereon for the current quarterly
dividend period;
WHEREAS, the Trust has sold 4,000 TrUEPrS (the "Initial TrUEPrS") to ML
IBK Positions, Inc. in accordance with the requirements of the Investment
Company Act of 1940, as amended;
WHEREAS, the Purchaser desires to use the proceeds of the Offering and
the sale of the Initial TrUEPrS to purchase initially from the U.K. Company
US$_________ aggregate principal amount of Mandatorily Redeemable Debt
Securities due 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
-------------------
-SM- Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
with respect to TrUEPrS granted by the Purchaser pursuant to the Purchase
Agreement (the "Over-Allotment Option").
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 product of US$25 and the number of TrUEPrS so purchased for a
purchase price equal to the proceeds received by the Trust from the
purchase 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 (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:
(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
2
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 the 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 Preference Shares Subscription Agreement, dated September
__, 1998, between the U.K. Company and the Jersey Subsidiary, the U.K.
Company Ordinary Shares Subscription Agreement, to be dated September
__, 1998, between the U.K. Company and the Jersey Holding Company, the
Jersey Subsidiary Ordinary and Nominal Shares Purchase Agreement, to be
dated September __, 1998, between the U.K. Company and the Jersey
Holding Company ("Jersey Subsidiary Ordinary and Nominal Shares
Purchase Agreement"), the Management Agreement and General
Administration Agreement, to be dated 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 owns 49% of the outstanding ordinary
shares of Cuzzano (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
3
its properties and to conduct its business and 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; 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
4
government, government instrumentality, stock exchange authority or
court, domestic or 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 NAB
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
5
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 ADRs representing the NAB
Preference Shares to the Trust 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
6
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
2.14 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,
7
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 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:
8
(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.
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.
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 NAB 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 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
9
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 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.
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,
dated as of September 10, 1998, among the Trustees of the Purchaser, Xxxxx X.
Xxxxxx, as depositor, ML IBK Positions, Inc., as Sponsor, and the Holders of the
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.
10
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 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.
11
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 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.
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
12
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: NAB 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: Cuzzano (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 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).
13
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
NAB EXCHANGEABLE PREFERRED TRUST
By
--------------------------------------------
Xxxxxx X. Xxxxxxx, as Managing Trustee
CUZZANO (UK) COMPANY
By
--------------------------------------------
Name:
Title:
14
