EXHIBIT 99 (p)
TrUEPrS SUBSCRIPTION AGREEMENT
THIS TrUEPrS SUBSCRIPTION AGREEMENT dated as of this 10th of September,
1998, by and between NAB 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 "Trust"), and ML IBK Positions, Inc. (the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE TrUEPrS
1.1 SALE AND ISSUANCE OF TrUEPrS. Subject to the terms and
conditions of this Agreement, the Trust agrees to sell to the Purchaser,
and the Purchaser agrees to purchase from the Trust, 4,000 Trust Units
Exchangeable for Preference Shares-SM- ("TrUEPrS-SM-"), each
representing a proportionate undivided beneficial interest in the assets
of the Trust, at a purchase price of $100,000.
1.2 CLOSING. The purchase and sale of the TrUEPrS shall take
place at the offices of Xxxxx & Xxxx LLP, Xxx Xxxxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 9:00 a.m., New York City time, on September 29,
1998, or at such other time ("Closing Date") and place as the Trust and
the Purchaser mutually agree upon. At or after the Closing, the Trust
shall deliver to the Purchaser a certificate representing the TrUEPrS
purchased by the Purchaser, registered in the name of the Purchaser or
its nominee. Payment for the TrUEPrS shall be made on the Closing Date by
the Purchaser by bank wire transfer or by delivery of a certified or
official bank check, in either case in immediately available funds, of an
amount equal to the purchase price of the TrUEPrS purchased by the
Purchaser.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. The
Purchaser hereby represents and warrants to, and covenants for the benefit of,
the Trust that:
2.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made
by the Trust with the Purchaser in reliance upon the Purchaser's
representation to the Trust, which by the Purchaser's execution of this
Agreement the Purchaser hereby confirms, that the TrUEPrS 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 TrUEPrS, and that the Purchaser has no present
intention of selling, granting any participation in, or otherwise
distributing the TrUEPrS, in either case in violation of any securities
registration requirement under applicable law, but
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-SM-Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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 TrUEPrS.
2.2 INVESTMENT EXPERIENCE. 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 Trust operates) as
to be capable of evaluating the merits and risks of the investment in the
TrUEPrS. 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").
2.3 RESTRICTED SECURITIES. The Purchaser understands that the
TrUEPrS are characterized as "restricted securities" under the United
States securities laws inasmuch as they are being acquired from the Trust
in a transaction not involving a public offering and that under such laws
and applicable regulations such TrUEPrS 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.
2.4 FURTHER LIMITATIONS ON DISPOSITION. The Purchaser further
agrees not to make any disposition directly or indirectly of all or any
portion of the TrUEPrS 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 Trust with an
opinion of counsel, reasonably satisfactory to the Trust, that
such disposition will not require registration of such TrUEPrS
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.
2.5 LEGENDS. It is understood that the certificate evidencing
the TrUEPrS 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
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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 Trust agree that the legend contained in the
paragraph (a) above shall be removed at a holder's request when it is no
longer necessary to ensure compliance with federal securities laws.
2.6 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.
2.7 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.
2.8 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NAB EXCHANGEABLE PREFERRED TRUST
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, as Managing Trustee
ML IBK POSITIONS, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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