EXHIBIT 99 (a)(2)
AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
NAB EXCHANGEABLE PREFERRED TRUST
Dated as of September 10, 1998
Table of Contents
Page
----
ARTICLE I.
DEFINITIONS
Section 1.01. DEFINITIONS........................................................2
ARTICLE II.
TRUST DECLARATION; PURPOSES, POWERS AND DUTIES OF THE TRUSTEES;
ADMINISTRATION
Section 2.01. NAME...............................................................9
Section 2.02. OFFICE.............................................................9
Section 2.03. RATIFICATION AND APPROVAL OF ACTION OF THE TRUSTEES................9
Section 2.04. DECLARATION OF TRUST; PURPOSES OF THE TRUST........................9
Section 2.05. GENERAL POWERS AND DUTIES OF THE TRUSTEES.........................10
Section 2.06. PORTFOLIO ACQUISITION.............................................11
Section 2.07. PORTFOLIO ADMINISTRATION..........................................12
Section 2.08. LIMITATIONS ON TRUSTEES' POWERS...................................13
ARTICLE III.
ACCOUNTS AND PAYMENTS
Section 3.01. THE TRUST ACCOUNT.................................................13
Section 3.02. DISTRIBUTIONS TO HOLDERS..........................................13
Section 3.03. SEGREGATION.......................................................14
Section 3.04. EXPENSES..........................................................14
Section 3.05. APPLICATION OF PAYMENTS UNDER TRUST EXPENSE
AGREEMENT AND EXPENSE AND INDEMNITY AGREEMENT.....................14
ARTICLE IV.
REDEMPTION
Section 4.01. REDEMPTION........................................................15
ARTICLE V.
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF TrUEPrS
Section 5.01. FORM OF CERTIFICATE...............................................15
Section 5.02. TRANSFER OF TrUEPrS; ISSUANCE, TRANSFER AND
EXCHANGE OF CERTIFICATES..........................................16
Section 5.03. REPLACEMENT OF CERTIFICATES.......................................17
Section 5.04. LIMITATION ON LIABILITY...........................................17
Section 5.05. GENERAL PROVISIONS REGARDING THE TrUEPrS..........................17
ARTICLE VI.
TRUSTEES
Section 6.01. TRUSTEES..........................................................17
Section 6.02. VACANCIES.........................................................18
i
Section 6.03. POWERS............................................................18
Section 6.04. MEETINGS..........................................................18
Section 6.05. RESIGNATION AND REMOVAL...........................................18
Section 6.06. LIABILITY.........................................................19
Section 6.07. COMPENSATION......................................................19
ARTICLE VII.
MISCELLANEOUS
Section 7.01. MEETINGS OF HOLDERS...............................................20
Section 7.02. BOOKS AND RECORDS; REPORTS........................................21
Section 7.03. DISSOLUTION.......................................................22
Section 7.04. AMENDMENT AND WAIVER..............................................22
Section 7.05. ACCOUNTANTS.......................................................23
Section 7.06. NATURE OF HOLDER'S INTEREST.......................................24
Section 7.07. NO RECOURSE.......................................................24
Section 7.08. ENFORCEMENT OF RIGHTS.............................................24
Section 7.09. DELAWARE LAW TO GOVERN............................................24
Section 7.10. NOTICES...........................................................24
Section 7.11. SEVERABILITY......................................................25
Section 7.12. COUNTERPARTS......................................................25
Section 7.13. SUCCESSORS AND ASSIGNS............................................25
ii
AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of September 10, 1998
(the "Trust Agreement"), by and among ML IBK Positions, Inc., as sponsor (the
"Sponsor"), Xxxxx X. Xxxxxx, as depositor (the "Depositor"), Xxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxx III and Xxxxx X. X'Xxxxx, as trustees (the "Trustees"), and
the Holders (as defined herein) from time to time, constituting NAB Exchangeable
Preferred Trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Depositor and the Trustees, have previously entered into a
Trust Agreement dated as of July 28, 1998 (the "Original Agreement"), and the
Trustees have filed a Certificate of Trust, dated as of July 28, 1998, with the
office of the Secretary of State of the State of Delaware on July 29, 1998 and
have filed a Restated Certificate of Trust on September 10, 1998, thus creating
NAB Exchangeable Preferred Trust (formerly XYZ Exchangeable Preferred Trust);
WHEREAS, the Depositor will, simultaneously with the execution of this Trust
Agreement, transfer all of his right, title and interest in and to NAB
Exchangeable Preferred Trust to the Sponsor;
WHEREAS, the Trustees hereby ratify and approve the transfer of the interest
of the Depositor in NAB Exchangeable Preferred Trust to the Sponsor.
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement in certain respects; and
WHEREAS, concurrently with the execution and delivery of this Agreement, the
Trust has issued 4,000 Trust Units Exchangeable for Preference Shares-SM-
("TrUEPrS-SM-") to the Sponsor in consideration of the aggregate purchase price
therefor of US$100,000, in satisfaction of the requirements of Section 14(a)(1)
under the Investment Company Act (as defined herein);
NOW, THEREFORE, the parties hereto agree to amend and restate the Original
Agreement as provided herein. Upon the execution and delivery of counterpart
signature pages hereto by the parties hereto, the Original Agreement will be
automatically amended and restated in its entirety to read as provided herein.
--------
-SM- Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
ARTICLE I.
DEFINITIONS
Section 1.01. DEFINITIONS. Whenever used in this Trust Agreement, the
following words and phrases shall have the meanings listed below. Any
reference to any agreement shall be a reference to such agreement as
supplemented or amended from time to time.
"Administration Agreement" means the Administration Agreement, dated as of
the first Issue Date, between the Administrator and the Trust and any substitute
agreement therefor entered into pursuant to Section 2.05(a) hereof.
"Administrator" means The Bank of New York or its successor as permitted
under Section 6.1 of the Administration Agreement or appointed pursuant to
Section 2.05(a) hereof.
"ADRs" means the American Depositary Receipts evidencing the ADSs issued
pursuant to the Deposit Agreement.
"ADSs" means the American Depositary Shares each of which represents two NAB
Preference Shares.
"ADSs Purchase Contract" means the ADSs Purchase Contract, dated as of the
first Issue Date, between the Trust and the Jersey Subsidiary.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday or Friday
which is not a day on which banking institutions in Melbourne, Australia, New
York, New York or the NAB Borrower's Principal Place of Business are authorized
or required by law or executive order to close.
"Certificate" means any certificate evidencing the ownership of TrUEPrS
substantially in the form of Exhibit A-1 or A-2 hereto.
"Closing Time" has the meaning specified in the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time; each reference herein to any section of the Code or any regulation
thereunder shall constitute a reference to any successor provision thereto.
"Collateral Agent" means The Bank of New York or its successor as permitted
under the Security and Pledge Agreements or appointed pursuant to Section
2.05(a) hereof.
"Commission" means the United States Securities and Exchange Commission or
any successor thereto.
"Company" means National Australia Bank Limited (A.C.N. 004 044 937), a
corporation organized under the laws of the State of Victoria, Commonwealth of
Australia, or any surviving entity or subsequent surviving entity of the
Company.
"Custodian" means The Bank of New York or its successor as permitted under
Section 11 of the Custodian Agreement or appointed pursuant to Section 2.05(a)
hereof.
2
"Custodian Agreement" means the Custodian Agreement, dated as of the date
hereof, between the Custodian and the Trust and any substitute agreement
therefor entered into pursuant to Section 2.05(a) hereof.
"Date of Delivery" has the meaning specified in the Purchase Agreement.
"Debt Securities" means the Mandatorily Redeemable Debt Securities due 2047
issued by the U.K. Company.
"Debt Securities Subscription Agreement" means the Debt Securities
Subscription Agreement between the Trust and the U.K. Company as amended
pursuant to the terms thereof.
"definitive Certificate" means a Certificate in the form of Exhibit A-2
hereto, which shall be issued to Holders other than DTC or its nominee.
"Deposit Agreement" means a deposit agreement between the Company and The
Bank of New York or its successor, as depositary for the NAB Preference Shares
(the "Depositary").
"Depositor" has the meaning specified in the recitals hereof.
"Distribution Loan" means the loan made by the Distribution Trust to the
USLLC, which will mature on December 31, 2052 unless extended by the parties
thereto.
"Distribution Trust" means the business trust established under the laws of
the State of Delaware pursuant to a distribution trust agreement, among the
depositor, the distribution trustees, the U.K. Company and the administrators
named therein.
"Dividend Payment Date" means March 31, June 30, September 30 and December
31 of each year, commencing on December 31, 1998.
"DTC" means The Depository Trust Company or any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time; each reference herein to any section of such Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"Exchange Date" is the date specified as such with respect to any particular
Exchange Event in the definition thereof.
"Exchange Event" means, the earliest to occur of any of the following dates
or events, which shall constitute an "Exchange Event" as of the "Exchange Date"
specified below:
(i) December 31, 2047 or the date of any earlier redemption,
mandatory repurchase ("Buy-Back") reduction of capital followed by
redemption ("Capital Reduction") or buy-back of the NAB Preference
Shares for cash, in which case the Exchange Date will be the earlier of
such dates;
(ii) any date selected by the Company in its absolute discretion,
in which case the Exchange Date will be such date;
3
(iii) the failure of the Trust to receive for any reason on or
within three Business Days after an Interest Payment Date the interest
then due on the Debt Securities in full without deduction or
withholding for any taxes, duties or other charges, in which case the
Exchange Date will be the fourth Business Day following such Interest
Payment Date;
(iv) any date on which the Total Capital Adequacy Ratio or the
Tier 1 Capital Ratio of the Company (either as reported quarterly by
the Company to the Regulatory Authority or as determined at any time by
the Regulatory Authority in its absolute discretion) is below 8% or 4%,
respectively, (or, in each case, such lesser percentage (the "Required
Percentage"), as may be prescribed by the Regulatory Authority for the
Company at the time), and such ratio is not increased by the Company to
at least 8% or 4%, respectively (or such lesser Required Percentage),
within 90 days after the date on which the Company makes such quarterly
report or receives notice from the Regulatory Authority of such
determination by such Regulatory Authority, in which case the Exchange
Date will be the Business Day immediately following the expiration of
such 90-day period;
(v) any change in (A) the legal ownership of the securities (other
than the Debt Securities) issued by, (B) any provision of the
constituent documents of (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 effect on the rights of the holders of the
TrUEPrS), or (C) the business purpose (or, solely with respect to the
Jersey Charitable Trust, the powers of the trustees thereof) (as
specified in the constituent documents) of, any of the U.K. Company,
the Jersey Holding Company, the Jersey Charitable Trust or the Jersey
Subsidiary, in which case the Exchange Date will be the date on which
the change occurs;
(vi) any change in the business purpose of the Distribution Trust
(as specified in the constituent documents thereof), in which case the
Exchange Date will be the date on which any such change occurs;
(vii) the common securities of the Distribution Trust cease to be
wholly-owned, directly or indirectly, by the Company or a direct or
indirect wholly-owned subsidiary or branch of the Company, in which
case the Exchange Date will be the date the common securities of the
Distribution Trust cease to be so wholly-owned;
(viii) the USLLC ceases to be a direct or indirect wholly-owned
subsidiary or branch of the Company, in which case the Exchange Date
will be the date on which the USLLC ceases to be so wholly-owned;
(ix) any NAB Borrower ceases to be the Company or a direct or
indirect wholly-owned subsidiary or branch of the Company, in which
case the Exchange Date will be the date on which such NAB Borrower
ceases to be the Company or a wholly-owned subsidiary or branch of the
Company;
4
(x) (A) a proceeding is commenced by the Company, the U.K.
Company, the Jersey Holding Company, the Jersey Charitable Trust, the
Jersey Subsidiary, the USLLC, the Distribution Trust or any NAB
Borrower (each, a "Relevant Entity") or a person that controls the
Relevant Entity for an order that such Relevant Entity be dissolved,
wound up or liquidated or for the appointment of a provisional
liquidator, liquidator, administrator, controller or similar official
in respect of the Relevant Entity or all or substantially all of its
property, in which case the Exchange Date will be the date on which the
proceeding is filed; (B) a proceeding is commenced by any other person
for an order that a Relevant Entity be wound up or for the appointment
of a provisional liquidator, liquidator, administrator, controller or
similar official in respect of a Relevant Entity or all or
substantially all of its property (unless such proceeding is
discontinued or dismissed within 21 days of its having been filed), in
which case the Exchange Date will be the Business Day immediately
following the expiration of such 21-day period; (C) a provisional
liquidator, liquidator, administrator, controller or similar official
is appointed whether by a court or otherwise in respect of any Relevant
Entity or all or substantially all of its property (unless any such
appointment is revoked or set aside within 21 days of such
appointment), in which case the Exchange Date will be the Business Day
immediately following the expiration of such 21-day period; or (D) the
Trust dissolves in accordance with the terms of the Declaration of
Trust or for any other reason, in which case the Exchange Date will be
the Business Day immediately preceding the effective date of such
dissolution; and
(xi) the Collateral Agent fails, at any time, to have a valid
first, perfected and enforceable security interest in, and lien on, the
Jersey Preference Shares and the ADSs representing the NAB Preference
Shares, and any redemption proceeds from any of the foregoing, and such
failure is not remedied on or before ten Business Days after written
notice of such failure is given to the U.K. Company or the Jersey
Subsidiary, as the case may be, by the Collateral Agent as contemplated
by the Security and Pledge Agreements, in which case the Exchange Date
will be the Business Day immediately following the expiration of such
ten-Business Day period.
Notwithstanding the foregoing, (i) the USLLC or the NAB Borrower may, with the
consent of the Distribution Trust or the USLLC, respectively, assign all or any
portion of the Distribution Loan or its NAB Loan, respectively, and (ii) the
Distribution Trust or the USLLC may replace all or any portion of the
Distribution Loan or any NAB Loan, respectively, with another loan, in each case
under (i) and (ii), to any or all of the Company or to one or more directly or
indirectly, wholly-owned subsidiaries or branches of the Company, in which case
the Company or such other subsidiary or branch take the place of the USLLC or
such NAB Borrower, as applicable, and such loan will be deemed to be the
Distribution Loan or such NAB Loan, as applicable, and each action will not
constitute an Exchange Event.
"Exchange Rate Condition" means, in connection with any Exchange Event
resulting from the redemption, Buy-Back or Capital Reduction of the NAB
Preference Shares for cash, that the value, for purposes of calculating United
Kingdom tax on capital gains, of one U.S. dollar or the equivalent thereof in
any successor legal currency of the United States in terms of British pounds
or the equivalent thereof in any successor or legal currency of the United
5
Kingdom (expressed in (pound)/US$) (the "Dollar Value") on the Exchange Date
with respect to such Exchange Event is less than or equal to the Dollar Value
on each Issue Date.
"Expense and Indemnity Agreement" means the Expense and Indemnity Agreement,
dated as of the first Issue Date, among the Trust, the NAB Affiliate, the U.K.
Company, the Jersey Subsidiary, the Jersey Holding Company and the Jersey
Charitable Trust as amended pursuant to the terms thereof.
"global Certificate" shall mean a Certificate in the form of Exhibit A-1
hereto, which shall be issued only to DTC or its nominee.
"Holder" means the person in whose name any TrUEPrS are recorded on the
register maintained by the Paying Agent.
"Interest Payment Date" means March 31, June 30, September 30 and December
31 of each year, commencing on December 31, 1998.
"Interest Portion" shall have the meaning set forth in the Debt Securities.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time; each reference herein to any section of such Act or
any rule or regulation thereunder shall constitute a reference to any successor
provision thereto.
"Issue Date" means, collectively, each original issue date of the TrUEPrS.
"Jersey Charitable Trust" means Cuzzano Charitable Trust, a charitable trust
established under the laws of, and domiciled in, Jersey, the Channel Islands,
which holds all of the Jersey Holding Company's ordinary shares.
"Jersey Holding Company" means Cuzzano (Holdings) Limited, an exempt company
established under the laws of, and domiciled in, Jersey, the Channel Islands.
"Jersey Preference Shares" means the fully paid, non-dividend paying
preference shares, liquidation preference US$25 per share, issued by the Jersey
Subsidiary.
"Jersey Subsidiary" means Cuzzano (Investments) Limited, a company
incorporated with limited liability under the laws of, and domiciled in, Jersey,
the Channel Islands.
"License Agreement" means the License Agreement, dated as of the first Issue
Date, between the Company and the Trust, as amended pursuant to the terms
thereof.
"Managing Trustee" means the Trustee designated the Managing Trustee by
resolution of the Trustees.
"NAB Affiliate" means National Australia Group Europe Limited, a
wholly-owned subsidiary of the Company.
"NAB Borrower" means each direct or indirect wholly-owned subsidiary or
branch of the Company and/or the Company, in each case to whom a NAB Loan has
been made or assigned.
6
"NAB Borrower's Principal Place of Business" means the city in which the
principal place of business of any NAB Borrower outside of Australia is located
at the relevant time (which initially shall be Wellington, New Zealand).
"NAB Loan" means any loan made by the USLLC to a NAB Borrower, which will
mature on December 31, 2052 unless extended by the parties thereto.
"NAB Loan Agreement" means, collectively, each loan agreement governing each
NAB Loan.
"NAB Preference Shares" means the fully paid preference shares, liquidation
preference US$12.50 per share, issued by the Company, and any other securities
issued in exchange or substitution for, or as a distribution on or otherwise in
respect of, such shares whether by or as a result of a recapitalization, split,
combination, reclassification or scheme of arrangement or otherwise.
"Original Agreement" has the meaning specified in the recital hereof.
"Paying Agent" means The Bank of New York or its successor as permitted
under Section 6.6 of the Paying Agent Agreement or appointed pursuant to Section
2.05(a) hereof.
"Paying Agent Agreement" means the Paying Agent Agreement, dated as of the
first Issue Date, between the Paying Agent and the Trust and any substitute
agreement therefor entered into pursuant to Section 2.05(a) hereof.
"Person" means an individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency or instrumentality thereof or any other entity whatsoever.
"Prospectus" means the prospectus of the Trust relating to the offering of
the TrUEPrS and constituting a part of the Registration Statement, as first
filed with the Commission pursuant to Rule 497 (h) under the Securities Act, and
as subsequently amended or supplemented by the Trust.
"Purchase Agreement" means the Purchase Agreement, among the Trust, the
Company and the Underwriters named therein relating to the issue and sale of the
TrUEPrS, as described in the Prospectus.
"Qualifying Exchange Event" shall have the meaning set forth in Section
2.06(a).
"Record Date" means, with respect to each Dividend Payment Date, March 15,
June 15, September 15 and December 15, as the case may be, of each year
immediately preceding such Dividend Payment Date, as the case may be.
"Registration Statement" means the Registration Statement on Form N-2
(Registration Nos. 333-60719 and 811-08939) of the Trust, as amended.
"Regulatory Authority" means the Australian Prudential Authority or any
other authority responsible for prudential supervision or regulation of banks in
Australia, as applicable.
7
"Securities Act" means the Securities Act of 1933, as amended from time to
time; each reference herein to any section of such Securities Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"Security and Pledge Agreements" means, collectively, the ADRs Security and
Pledge Agreement, dated as of the first Issue Date, among the Trust, the U.K.
Company, the Jersey Subsidiary and the Collateral Agent, securing the respective
obligations of the U.K. Company under the Debt Securities and the Jersey
Subsidiary under the Jersey Preference Shares and the ADS Purchase Contract, and
the Jersey Preference Shares Security and Pledge Agreement, dated as of the
first Issue Date, among the Trust, the U.K. Company and the Collateral Agent,
securing the obligations of the U.K. Company under the Debt Securities each as
amended pursuant to the terms thereof.
"Sponsor" has the meaning specified in the preamble to this Trust Agreement.
"Tier 1 capital" means capital which is regarded as "tier 1 capital" for the
purposes of the capital adequacy guidelines of the Regulatory Authority.
"Tier 1 capital Ratio" means the ratio of Tier 1 capital to risk weighted
assets (on a consolidated group basis) prescribed by the Regulatory Authority in
its capital adequacy guidelines for Australian banks, as modified from time to
time.
"Total Capital Adequacy Ratio" means the ratio of total capital adequacy to
risk weighted assets prescribed by the Regulatory Authority in its capital
adequacy guidelines for Australian banks, as modified from time to time.
"TrUEPrS" means Trust Units Exchangeable for Preference Shares, each
representing a Holder's proportionate share of an undivided beneficial interest
in the assets of the Trust and right to receive a pro rata portion of any
distribution upon the occurrence of an Exchange Event or the payment of any
non-cumulative dividends on the TrUEPrS.
"TrUEPrS Subscription Agreement" means the TrUEPrS Subscription Agreement,
dated as of September 10, 1998, between the Trust and the Sponsor, as amended
pursuant to the terms thereof.
"Trust" has the meaning specified in the preamble to this Trust Agreement.
"Trust Account" means the non-interest bearing account created pursuant to
Section 3.01 hereof.
"Trust Estate" means (i) the Debt Securities and any distributions thereon
and redemption proceeds therefrom, (ii) the Jersey Preference Shares, if any,
purchased by the Trust pursuant to the terms of the Debt Securities and the
redemption proceeds therefrom, (iii) the ADSs Purchase Contract, and (iv) the
ADSs, if any, purchased by the Trust pursuant to the terms of the ADSs Purchase
Contract, in each case held at any time by the Trust.
"Trust Expense Agreement" means the Trust Expense Agreement dated the first
Issue Date between The Bank of New York, as Administrator, Custodian and Paying
Agent of the Trust, and the Jersey Holding Company, as amended pursuant to the
terms thereof.
8
"Trust Reimbursement Agreement" means the Trust Reimbursement Agreement
between the Trust and Xxxxxxx Xxxxx & Co., Inc., as amended pursuant to the
terms thereof.
"Trustees" has the meaning specified in the introductory paragraph of this
Trust Agreement.
"U.K. Company" means Cuzzano (UK) Company, a special purpose unlimited
company incorporated under the laws of England and Wales, and domiciled in the
United Kingdom.
"Underwriters" means the several Underwriters named in the Purchase
Agreement.
"USLLC" means initially, a Delaware limited liability company that is a
wholly-owned subsidiary of the Company; after the first Issue Date, the USLLC
may be the Company or another wholly-owned subsidiary or branch of the Company.
ARTICLE II.
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.01. NAME. The Trust is named "NAB Exchangeable Preferred Trust,"
as such name may be modified from time to time by the Trustees following written
notice to the Holders. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Trustees.
Section 2.02. OFFICE. The address of the principal office of the Trust is
c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000. On ten Business Days' written notice to the Holders the Trustees may
designate another principal office.
Section 2.03. RATIFICATION AND APPROVAL OF ACTION OF THE TRUSTEES. The
Sponsor hereby ratifies and approves any and all actions taken by the Trustees
on behalf of the Trust on or prior to the date hereof in connection with the
registration of the Trust under the Investment Company Act, in connection with
the registration of the offer and sale of the TrUEPrS under the Securities Act,
or otherwise incident to, or connected with, or necessary to accomplish, the
foregoing or the offer and sale of the TrUEPrS by the Underwriters and the
operation of the Trust as described in the Prospectus.
Section 2.04. DECLARATION OF TRUST; PURPOSES OF THE TRUST. The Sponsor
hereby creates the Trust solely so that it may issue and sell the TrUEPrS to the
Sponsor and the Underwriters, invest all the proceeds from each such sale in an
equivalent principal amount of the Debt Securities issued by the U.K. Company,
hold the Trust Estate in trust for the use and benefit of all present and future
Holders and otherwise carry out the terms and conditions of this Trust
Agreement, all for the purpose of achieving the investment objectives set forth
in the Prospectus. The Trustees hereby declare that they will accept and hold
the Trust Estate for the use and benefit of all present and future Holders. The
Depositor has heretofore deposited with the Trustees the sum of US$1 to accept
and hold in trust hereunder until the issuance and sale of the TrUEPrS to the
Underwriters, whereupon such sum shall be donated to an organization satisfying
the requirements of Section 170(c)(2) of the Code selected by unanimous consent
of the Trustees.
9
Section 2.05. GENERAL POWERS AND DUTIES OF THE TRUSTEES. In furtherance of
the provisions of Section 2.04 hereof, the Sponsor authorizes and directs the
Trustees, in the name and on behalf of the Trust:
(a) to enter into and perform or cause the Administrator to enter into
and perform (and, in accordance with Section 7.04(c) hereof, amend) the Security
and Pledge Agreements, the Purchase Agreement, the Expense and Indemnity
Agreement, the Custodian Agreement, the Administration Agreement, the Paying
Agent Agreement, the Trust Reimbursement Agreement, the Trust Expense Agreement,
the License Agreement, the TrUEPrS Subscription Agreement, the ADSs Purchase
Contract and the Debt Securities Subscription Agreement and to perform all
obligations of the Trust (including the obligation to provide indemnity
hereunder and thereunder) and enforce all rights and remedies of the Trust under
each of such agreements; and if any of such agreements terminates or the agent
of the Trust thereunder resigns or is discharged, to appoint a substitute agent
and enter into a new agreement with such substitute agent containing provisions
substantially similar to those contained in the agreement being terminated;
provided that in any such new agreement (i) the Custodian and the Paying Agent
shall each be a commercial bank or trust company organized and existing under
the laws of the United States of America or any state therein, shall have full
trust powers and shall have minimum capital, surplus and retained earnings of
not less than US$100,000,000; and (ii) the Administrator and the Collateral
Agent shall each be a reputable financial institution eligible and qualified in
all respects to carry out its obligations under the Administration Agreement or
the Security and Pledge Agreements, as the case may be;
(b) to hold the Trust Estate in trust, to create and administer the
Trust Account, to direct payments received by the Trust to the Trust Account and
to make payments out of the Trust Account as set forth in Article III hereof;
(c) to issue and sell to (i) the Underwriters an aggregate of up to
18,396,000 TrUEPrS (including those TrUEPrS subject to the over-allotment option
of the Underwriters provided for in the Purchase Agreement) pursuant to the
Purchase Agreement and as contemplated by the Prospectus and (ii) the Sponsor an
aggregate of 4,000 TrUEPrS pursuant to the TrUEPrS Subscription Agreement;
(d) to select and, subject to the provisions of Section 7.05 hereof, to
engage independent public accountants;
(e) to select and engage legal counsel and, to the extent required by
Section 2.07 hereof, to engage professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced against the Trustees or the Trust
and to prosecute any action which the Trustees deem necessary to protect the
Trust and the rights and interests of Holders, and to pay the costs thereof;
(g) to delegate any or all of its powers and duties hereunder as
contemplated by the Custodian Agreement, the Paying Agent Agreement and the
Administration Agreement, in each case to the extent permitted by applicable
law;
(h) to adopt the fundamental policies set forth in the Prospectus, to
adopt and amend by-laws, and to take any and all such other actions as necessary
or advisable to carry out
10
the purposes of the Trust, subject to the provisions hereof and applicable law,
including, without limitation, the Investment Company Act;
(i) to arrange for the bonding of officers and employees of the Trust
if and as required by Section 17(g) of the Investment Company Act and the rules
and regulations thereunder;
(j) to prepare, execute and file with the New York Stock Exchange an
application for listing thereon of the TrUEPrS; to prepare, execute and file any
and all amendments, certificates, documents or letters to such listing as the
Trustees deem appropriate; and to enter into other agreements that are necessary
to effect such listing.
(k) whenever the holder of the ADRs, the NAB Preference Shares or the
Jersey Preference Shares is entitled to vote on any matter, to perform such
acts, including, without limitation, calling a special meeting of Holders,
obtaining Holders' consents and obtaining Holders' instructions, as necessary or
required for purposes of Section 7.01;
(l) to prepare, execute and file, and make related payments, with the
National Association of Securities Dealers, Inc. (the "NASD") in accordance with
Rule 2710 of the rules of conduct of the NASD and to prepare, execute and file
any and all amendments, certificates, documents, certificates, documents or
letters to such listing as the Trustees deem appropriate;
(m) to set up a special pricing committee (the "Special Pricing
Committee"), which committee shall consist of one of the Trustees and shall have
the authority to approve and set the final offering price per TrUEPrS and all
other final terms of the offering of the TrUEPrS; and
(n) to perform all other acts which are necessary and incidental to
carrying out the aforementioned powers.
Section 2.06. PORTFOLIO ACQUISITION. In furtherance of the provisions of
Section 2.04 hereof, the Sponsor further specifically authorizes and directs the
Trustees, acting in the name and on behalf of the Trust,
(a) to use all the proceeds from the sale of the TrUEPrS on each Issue
Date pursuant to the TrUEPrS Subscription Agreement and the Purchase Agreement
to subscribe for and purchase on such Issue Date from the U.K. Company Debt
Securities with an aggregate principal amount equal to such proceeds and (1)
upon the occurrence of an Exchange Event (other than an Exchange Event resulting
from the redemption, Buy-Back or Capital Reduction of the NAB Preference Shares
for cash with respect to which the Exchange Rate Condition is satisfied (a
"Qualifying Exchange Event")) to (A) apply the cash proceeds or the right of the
Trust to receive the cash proceeds payable upon the redemption of the Debt
Securities (other than the Interest Portion thereof, if any) to purchase from
the U.K. Company, subject to and in accordance with the terms and conditions of
the Debt Securities, as soon as possible on or after the Exchange Date, Jersey
Preference Shares owned by the U.K. Company with an aggregate stated liquidation
value equal to the aggregate principal amount of Debt Securities so redeemed and
(B) distribute the Interest Portion, if any, of such cash redemption proceeds to
Holders in accordance with Section 2.07(b) hereof, and (2) upon the occurrence
of a Qualifying Exchange Event, to distribute the cash proceeds from the
redemption of the Debt Securities to Holders in accordance with Section 2.07(b)
hereof;
11
(b) to enter into the ADSs Purchase Contract and, upon the occurrence
of any Exchange Event other than a Qualifying Exchange Event, (1) if the
Exchange Event does not result from the redemption, Buy-Back or Capital
Reduction of the NAB Preference Shares for cash, to (A) apply the cash proceeds
or the right of the Trust to receive the cash proceeds payable upon the
redemption of the Jersey Preference Shares acquired as contemplated in Section
2.06(a)(1) to purchase, in accordance with and subject to the terms and
conditions of the ADSs Purchase Contract, ADSs owned by the Jersey Subsidiary
with an aggregate liquidation value equal to the aggregate liquidation value of
the Jersey Preference Shares so redeemed, as soon as possible on or after the
Exchange Date and (B) to distribute the ADSs so purchased to Holders in
accordance with Section 2.07(a) hereof, or (2) if the Exchange Event results
from the redemption, Buy-Back or Capital Reduction of the NAB Preference Shares
for cash and the Exchange Rate Condition is not satisfied with respect to such
Exchange Event, to distribute the cash proceeds from the redemption of the
Jersey Preference Shares to Holders in accordance with Section 2.07(b) hereof.
Section 2.07. PORTFOLIO ADMINISTRATION. In furtherance of the provisions of
Section 2.04 hereof, the Sponsor further specifically authorizes and directs the
Trustees:
(a) DISTRIBUTION OF ADSs UPON THE OCCURRENCE OF AN EXCHANGE EVENT. To
distribute ADSs, if any, to the Holders as soon as possible after they are
received by the Trust pursuant to the ADSs Purchase Contract as follows:
(i) if the TrUEPrS are evidenced by one or more global
Certificates and the ADSs received by the Trust are to be evidenced by
one or more global Certificates, then such ADSs will be delivered to,
and registered in the name of, DTC or its nominee for the benefit of
the beneficial owners of interests in the TrUEPrS;
(ii) if the TrUEPrS are evidenced by one or more global
Certificates and the ADSs received by the Trust are to be in the form
of definitive Certificates, then such ADSs will be delivered to, and
registered in the name of, such persons and at such addresses as DTC or
its nominee shall direct in writing; or
(iii) if the TrUEPrS are evidenced by definitive Certificates and
the ADSs received by the Trust are to be in the form of definitive
Certificates, then such ADSs will be delivered to, and registered in
the name of, the Holders at their respective addresses set forth in the
register maintained by the Paying Agent.
The Trust may require the Holders to pay a sum sufficient to cover any tax or
other governmental charges that may be imposed with respect to any such
distribution.
(b) DISTRIBUTION OF CASH UPON THE OCCURRENCE OF AN EXCHANGE EVENT. If
the Exchange Event is the redemption, Buy-Back or Capital Reduction of the NAB
Preference Shares for cash, to distribute to the Holders as soon as possible
after receipt by the Trust, the cash distributable to Holders upon the
redemption of the Debt Securities and/or the Jersey Preference Shares pursuant
to Sections 2.06(a)(1)(B), 2.06(a)(2) and/or 2.06(b)(2) on the basis of US$25
per TrUEPrS plus accrued interest thereon from and including the last Interest
Payment Date immediately preceding the Exchange Date to but excluding the
Exchange Date. The Trust may require the Holders to pay a sum sufficient to
cover any tax or other governmental charges that may be imposed with respect to
any such distribution.
12
(c) RECORD DATE. The distributions described in paragraphs (a) and (b)
shall be made to Holders of record as of the opening of business on the Exchange
Date.
Section 2.08. LIMITATIONS ON TRUSTEES' POWERS. The Trustees, acting in the
name and on behalf of the Trust, are not permitted:
(a) to purchase or hold any securities, instruments, or other property
except for the Trust Estate;
(b) to dispose of the Trust Estate other than the distributions
provided for in Sections 2.06, 2.07 and 3.02;
(c) to issue any securities or instruments other than the TrUEPrS sold
to the Sponsor and to be sold pursuant to the Purchase Agreement upon full
payment therefor as provided therein, or issued in accordance with Section 5.02
or 5.03;
(d) to make short sales or purchases on margin;
(e) to write put or call option;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or commodities
contracts;
(i) to purchase restricted securities;
(j) to make loans;
(k) to take any action, or direct or permit the Administrator, the
Paying Agent or the Custodian to take any action, that would vary the investment
of the Holders within the meaning of Treasury Regulation Section 301.7701-4(c),
or otherwise take any action or direct or permit any action to be taken that
would or could cause the Trust not to be a "grantor trust" under the Code; or
(l) to take any other action not specifically authorized by Section
2.05.
ARTICLE III.
ACCOUNTS AND PAYMENTS
Section 3.01. THE TRUST ACCOUNT. The Trustees shall, upon issuance of the
TrUEPrS, establish with the Paying Agent an account to be called the "Trust
Account". All moneys received by the Trustees in respect of the Debt Securities
and the Jersey Preference Shares, and all moneys received from the sale of the
TrUEPrS to the Sponsor, shall be credited to the Trust Account, which shall be
non-interest bearing.
Section 3.02. DISTRIBUTIONS TO HOLDERS. On each Dividend Payment Date the
Trustees shall distribute to each Holder of record at the close of business on
the immediately
13
preceding Record Date, at the post office address of the Holder appearing on the
register maintained by the Trust or Paying Agent or by any other means mutually
agreed upon by the Holder and the Trustees, non-cumulative dividend
distributions to be payable quarterly in arrears. If any Dividend Payment Date
is not a Business Day, then (notwithstanding any other provision herein) payment
of dividends otherwise payable on such Dividend Payment Date need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on the Dividend Payment Date. On and after an
Exchange Date, dividends on the TrUEPrS shall cease to accrue and accrued but
unpaid dividends on the TrUEPrS shall no longer be payable; provided that the
foregoing shall not affect the obligation to make the distributions provided for
in Sections 2.06 and 2.07.
Section 3.03. SEGREGATION. All moneys and other assets deposited or received
by the Trustees hereunder shall be held by them in trust as part of the Trust
Estate until required to be disbursed or otherwise disposed of in accordance
with the provisions of this Trust Agreement, and the Trustees shall handle such
moneys and other assets in such manner as shall constitute the segregation and
holding in trust within the meaning of the Investment Company Act.
Section 3.04. EXPENSES . The organization costs of the Trust and the costs
associated with the initial registration and offering of the TrUEPrS will be
paid by the Administrator on behalf of the Trust out of the facility fee to be
paid to the Trust by the U.K. Company in connection with the investment by the
Trust in the Debt Securities. Any such expenses paid by Xxxxxxx Xxxxx & Co.,
Inc. shall be reimbursed by the Administrator on behalf of the Trust pursuant to
the Trust Reimbursement Agreement. Certain ongoing expenses of the Trust such as
accounting services, expenses for legal and auditing services, taxes, costs of
printing proxies, listing fees, if any, stock certificates and shareholder
reports, charges of the Administrator, the Custodian and the Paying Agent, fees
and expenses of Trustees, accounting costs, brokerage costs, litigation, mailing
and other expenses properly payable by the Trust will be paid by the
Administrator out of funds to be provided to the Administrator on behalf of the
Trust by the Jersey Holding Company pursuant to the Trust Expense Agreement.
Expenses of the Trust not covered by the Trust Expense Agreement and that are
reasonably related to the conduct of its business consistent with the provisions
of Article II hereof will be paid by the Administrator on behalf of the Trust
out of funds, if any, paid by the NAB Affiliate pursuant to the Expense and
Indemnity Agreement. In no event shall any expenses of the Trust be payable out
of the Trust Estate.
Section 3.05. APPLICATION OF PAYMENTS UNDER TRUST EXPENSE AGREEMENT AND
EXPENSE AND INDEMNITY AGREEMENT. To the extent the Administrator, on behalf of
the Trust, receives money under the Expense and Indemnity Agreement or the Trust
Expense Agreement, pending the use of such money by the Administrator to pay the
Trust's expenses under this Agreement, the Administration Agreement, the
Custodian Agreement, the Paying Agent Agreement or the Debt Securities
Subscription Agreement or any of its other expenses, such money shall be
deposited and held in a non-interest bearing account maintained by the
Administrator that is separate from the Trust Account. Upon dissolution of the
Trust, any money held in such account, less any expenses of the Trust, shall be
paid to the NAB Affiliate pursuant to the Expense and Indemnity Agreement as an
Additional Indemnity Fee (as defined in such agreement).
14
ARTICLE IV.
REDEMPTION
Section 4.01. REDEMPTION. The Trustees shall have no right or obligation to
redeem TrUEPrS.
ARTICLE V.
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF TrUEPrS
Section 5.01. FORM OF CERTIFICATE. Each Certificate evidencing TrUEPrS shall
be executed manually or by facsimile by the Managing Trustee and countersigned
manually by the Paying Agent in substantially the form of Exhibit A hereto with
the blanks appropriately filled in, shall be dated the date on which they are
countersigned and delivered by the Paying Agent and shall represent a fractional
undivided interest in the assets of the Trust, the numerator of which fraction
shall be the number of TrUEPrS set forth on the face of such Certificate and the
denominator of which shall be the total number of TrUEPrS outstanding at that
time. All TrUEPrS shall be issued in registered form and shall be numbered
serially. Certificates bearing the manual or facsimile signatures of any
individual who was at any time the Managing Trustee shall bind the Trust,
notwithstanding that such individual ceased to hold such office prior to the
countersignature and delivery of such Certificates or did not hold such position
at the date of such Certificates. No Certificate shall be entitled to any
benefits hereunder or be valid or obligatory for any purpose unless such
Certificate shall have been countersigned by the Paying Agent as provided above,
and such countersignature upon any Certificate shall be conclusive evidence, and
the only evidence, that such Certificate has been duly countersigned and
delivered hereunder. Pending the preparation of definitive Certificates, the
Trustees may execute and the Paying Agent shall countersign and deliver
temporary Certificates (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Paying Agent). The
Certificates to be delivered to the Underwriters pursuant to the Purchase
Agreement will be issued in the form of a global Certificate or Certificates
evidencing the TrUEPrS to be issued to the Underwriters, which will be delivered
to DTC or its nominee by or on behalf of the Trust. Such global Certificate or
Certificates shall initially be registered on the register maintained by the
Paying Agent in the name of Cede & Co., the nominee of DTC, and no beneficial
owner of an interest in such TrUEPrS will receive a definitive Certificate
representing such beneficial owner's interest in such TrUEPrS, except as
provided in the next paragraph. Unless and until definitive Certificates have
been issued pursuant to the next paragraph, the Trust shall be entitled to deal
with DTC for all purposes of this Agreement as the Holder and the sole Holder of
the Certificates and shall have no obligation to the beneficial owners of
interest therein, and neither the Trust, the Trustees, the Paying Agent or any
agent of any of the foregoing shall have any liability with respect to or
responsibility for the records of DTC or its participants.
If DTC elects to discontinue its services as securities depository, then
definitive Certificates shall be prepared by the Trust. Upon surrender of the
global Certificate or Certificates and accompanied by registration instructions
from DTC, the Trustees shall cause definitive Certificates to be registered in
the names and delivered to the persons set forth in DTC's instructions. Neither
the Trustees, the Trust, the Paying Agent nor any agent of any of
15
the foregoing shall be liable for any delay by DTC in delivering such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
Temporary Certificates shall be issuable as registered Certificates
substantially in the form of the definitive Certificates but with such
omissions, insertions and variations as may be appropriate for temporary
Certificates, all as may be determined by the Trustees. Every temporary
Certificate shall be executed by the Managing Trustee and be countersigned by
the Paying Agent upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Certificates. Without unreasonable delay
the Managing Trustee shall execute and shall furnish definitive Certificates and
thereupon temporary Certificates may be surrendered in exchange therefor without
charge at each office or agency of the Paying Agent and the Paying Agent shall
countersign and deliver in exchange for such temporary Certificates definitive
Certificates for a like aggregate number of TrUEPrS. Until so exchanged, the
temporary Certificates shall be entitled to the same benefits hereunder as
definitive Certificates.
Section 5.02. TRANSFER OF TrUEPrS; ISSUANCE, TRANSFER AND EXCHANGE OF
CERTIFICATES. The registration and registration of transfer of TrUEPrS will be
made in the register maintained by the Paying Agent for such purpose. Subject to
the satisfaction of any conditions imposed by applicable law, TrUEPrS may be
transferred by the Holder thereof by presentation and surrender of Certificates
at the office of the Paying Agent, accompanied by such documents as the Paying
Agent deems necessary to evidence the legality of the transfer. Certificates
issued pursuant to this Trust Agreement are exchangeable for one or more other
Certificates evidencing an equal aggregate number of TrUEPrS as may be requested
by the Holder. All Certificates shall be issued in denominations of one TrUEPrS
or any multiple thereof. All Certificates issued upon any registration of
transfer or exchange shall evidence the same fractional undivided interest in
the assets of the Trust, and be entitled to the same benefits, as the
Certificates surrendered upon such registration of transfer or exchange.
Prior to the due presentment for registration of transfer, the Paying Agent
may deem and treat the person in whose name any TrUEPrS shall be registered in
the register maintained by the Paying Agent as the owner of such TrUEPrS for all
purposes hereunder and neither the Trust, the Trustees, the Paying Agent nor any
agent of any of the foregoing shall be affected by any notice to the contrary.
The transfer books maintained by the Paying Agent for the purposes of this
Section 5.02 shall include the name and address of the record owners of the
TrUEPrS and shall be closed in connection with the dissolution of the Trust
pursuant to Section 7.03 hereof. A sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such exchange or
transfer shall be paid to the Paying Agent by the Holder. A Holder may be
required to pay a fee for each new Certificate to be issued pursuant to this
paragraph in such amount as may be specified by the Paying Agent and approved by
the Trustees. All Certificates surrendered for registration of transfer or
exchange shall be promptly cancelled by the Paying Agent. No Certificates shall
be countersigned in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Agreement. All
Certificates cancelled pursuant to this Trust Agreement may be voided by the
Paying Agent in accordance with the usual practice of the Paying Agent or in
accordance with the instructions of the Trustees; provided, however, that the
Paying Agent shall not be required to destroy cancelled Certificates. The Paying
Agent may adopt other reasonable rules and regulations for the registration,
transfer and tender of TrUEPrS as it may, in its discretion, deem necessary.
16
Section 5.03. REPLACEMENT OF CERTIFICATES. In case any Certificate shall
become mutilated or be destroyed, stolen or lost, the Paying Agent shall
countersign and deliver a new Certificate in exchange and substitution therefor
upon the Holder's furnishing the Paying Agent with proper identification and (in
the case of destroyed, stolen or lost Certificates only) satisfactory indemnity,
complying with such other reasonable regulations and conditions as the Paying
Agent may prescribe and paying such expenses and charges, including any bonding
fee, as the Paying Agent may incur or reasonably impose. Any mutilated
Certificate shall be duly surrendered and cancelled before any duplicate
Certificate shall be issued in exchange and substitution therefor. Upon issuance
of any duplicate Certificate pursuant to this Section 5.03, the original
Certificate claimed to have been lost, stolen or destroyed shall become null and
void and of no effect, and any protected purchaser thereof shall have only such
rights as are afforded under Article 8 of the Uniform Commercial Code to a
Holder presenting a Certificate for transfer in the case of an overissue. Upon
the issuance of any new Certificate under this Section, the Trust may require
the payment of a sum sufficient to cover any tax or other governmental charges
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustees and the Paying Agent) connected therewith. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of
mutilated, destroyed, lost or stolen Certificates.
Section 5.04. LIMITATION ON LIABILITY. Pursuant to Section 3803(a) of the
Delaware Business Trust Act, 12 Del. C. Section 3801, et seq., the Holders of
the TrUEPrS shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
Section 5.05. GENERAL PROVISIONS REGARDING THE TrUEPrS.
(a) The consideration received by the Trust for the issuance of the
TrUEPrS shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(b) Upon issuance of the TrUEPrS as provided in this Trust Agreement,
the TrUEPrS so issued shall be deemed to be validly issued, fully paid and
non-assessable. The issuance of the TrUEPrS will not be subject to preemptive or
other similar rights.
(c) Every person, by virtue of having become a Holder in accordance
with the terms of this Trust Agreement, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this Trust
Agreement.
ARTICLE VI.
TRUSTEES
Section 6.01. TRUSTEES. The Trust shall have three Trustees each of which
shall be residents of the United States. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until the next meeting of Holders called for
the purpose of electing Trustees and, then, until such Trustee's successor is
duly elected and qualified. Holders may not cumulate their votes in the election
of Trustees. Each Trustee shall not be considered to have qualified for the
office unless such Trustee shall
17
agree to be bound by the terms of this Trust Agreement and shall evidence his
consent by executing this Trust Agreement or a supplement hereto.
Section 6.02. VACANCIES. Any vacancy in the office of a Trustee may be
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within 30 days, of the remaining Trustees; provided that if required
by Section 16 of the Investment Company Act, the Trustees shall forthwith cause
to be held as promptly as possible and in any event within 60 days (unless the
Commission by order shall extend such period) a meeting of Holders for the
purpose of electing Trustees in compliance with Sections 10 and 16 of the
Investment Company Act. Until a vacancy in the office of any Trustee is filled
as provided above, the remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Trust Agreement. Election shall be by the
affirmative vote of Holders of a majority of the TrUEPrS entitled to vote
present in person or by proxy at a special meeting of Holders called for the
purpose of electing any Trustee. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person", as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or election of a successor Trustee shall be mailed promptly after
acceptance of such appointment by the successor Trustee to each Holder.
Section 6.03. POWERS. The Trust will be managed solely by the Trustees, who
will, subject to the provisions of Article II hereof, have complete and
exclusive control over the management, conduct and operation of the Trust's
business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under Delaware law. The Trustees shall have
fiduciary responsibility for the safekeeping and use of all funds and assets of
the Trust and shall not employ, or permit another to employ, such funds or
assets in any manner except for the exclusive benefit of the Trust and except in
accordance with the terms of this Trust Agreement. Subject to the continuing
supervision of the Trustees and as permitted by applicable law, the functions of
the Trust shall be performed by the Custodian, the Paying Agent, the
Administrator and such other entities engaged to perform such functions as the
Trustees may determine, including, without limitation, any or all administrative
functions.
Section 6.04. MEETINGS. Meetings of the Trustees shall be held from time to
time upon the call of any Trustee on not less than 48 hours notice (which may be
waived by any or all of the Trustees in writing either before or after such
meeting or by attendance at the meeting unless the Trustee attends the meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been lawfully called or convened). The Trustees
shall act either by majority vote of the Trustees present at a meeting at which
at least a majority of the Trustees then in office are present or by a unanimous
written consent of the Trustees without a meeting. Except as otherwise required
under the Investment Company Act, all or any of the Trustees may participate in
a meeting of the Trustees by means of a conference telephone call or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to such
communications equipment shall constitute presence in person at such meeting.
Section 6.05. RESIGNATION AND REMOVAL. Any Trustee may resign and be
discharged of the trust created by the Trust Agreement by executing an
instrument in writing
18
resigning as Trustee, filing the same with the Administrator and sending notice
thereof to the remaining Trustees, and such resignation shall become effective
immediately unless otherwise specified therein. Any Trustee may be removed in
the event of incapacity by vote of the remaining Trustees and for any reason by
written declaration or vote of the Holders of more than 66 2/3% of the
outstanding TrUEPrS, notice of which vote shall be given to the remaining
Trustees and the Administrator. The resignation, removal or failure to reelect
any Trustee shall not cause the termination of the Trust.
Section 6.06. LIABILITY. The Trustees shall not be liable to the Trust or
any Holder for any action taken or for refraining from taking any action except
in the case of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties of their office. Specifically, without limitation, the
Trustees shall not be responsible for or in respect of the recitals herein or
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by any other Person, or for or in respect of the validity or sufficiency
of TrUEPrS or Certificates representing TrUEPrS and shall in no event assume or
incur any liability, duty or obligation to any Holder or to any other Person,
other than as expressly provided for herein. The Trustees may employ agents,
attorneys, administrators, accountants and auditors, and shall not be answerable
for the default or misconduct of any such Persons if such Persons shall have
been selected and retained with reasonable care. Action in good faith may
include action taken in good faith in accordance with an opinion of counsel. In
no event shall any Trustee be personally liable for any expenses with respect to
the Trust. Each Trustee shall, to the fullest extent permitted by applicable
law, be indemnified by the Trust with respect to any claim, liability or loss
arising out of or in connection with such Trustee's acting as Trustee of the
Trust and with respect to all reasonable costs and expenses (including the
reasonable costs of investigation, preparation for and defense of legal and/or
administrative proceedings relating to a claim against such Trustee and
reasonable attorneys' fees and disbursements) incurred in connection with any
such claim, liability or loss, except in the case of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties of his office.
Notwithstanding the foregoing, it is understood that (i) the Trust shall not, in
respect of the legal expenses of any Trustee in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel), (ii)
the Trust shall not be liable for any settlement of any proceeding effected
without the written consent of the Trust, but if settled with such consent or if
there be a final judgment for the third party claimant, the Trust agrees to
indemnify the Trustees from and against any loss or liability by reason of such
settlement or judgment, (iii) the Trust shall only be obligated to pay any
amounts owing to the Trustees under this Section 6.06 from payments it receives
pursuant to the Expense and Indemnity Agreement and not out of the Trust Estate
and (iv) the Trust shall not be liable for any loss, damages, cost, liability or
claim or any expense (including the reasonable costs of investigation,
preparation for and defense of legal and/or administrative proceedings related
to a claim against the Trustees and reasonable attorneys' fees and
disbursements) in an amount in excess of the amount actually received by the
Trust under the Expense and Indemnity Agreement in connection with such loss,
damages, cost, liability or claim.
Section 6.07. COMPENSATION. Each Trustee, other than a Trustee who is a
director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a quarterly fee of US$900
payable on March 31, June 30, September 30 and December 31 of each year,
provided the first quarterly fee of $900 for December 31, 1998 shall be payable
at Closing Time. The Managing Trustee, other than a Managing Trustee who is
19
a director, officer or employee of the Sponsor, any Underwriter or any affiliate
thereof, shall receive an additional quarterly fee of $300 payable on March 31,
June 30, September 30 and December 31 of each year, provided the first
additional quarterly fee of $300 for December 31, 1998 shall be payable at
Closing Time. The Trustees will not receive any pension or retirement benefits.
In the event of the resignation or removal of a Trustee or the occurrence of an
Exchange Event, such Trustee shall remit to the Trust the portion of its fee
ratable for the period from the day of such resignation or removal or the date
on which an Exchange Event occurs to the day immediately preceding the first day
of the next quarter. The Trustees will only be entitled to receive compensation
pursuant to this Section 6.07 out of payments received pursuant to the Trust
Expense Agreement and the Expense and Indemnity Agreement and not out of the
Trust Estate.
ARTICLE VII.
MISCELLANEOUS
Section 7.01. MEETINGS OF HOLDERS. (a) The Trustees shall not hold annual or
regular meetings of Holders except as set forth herein. A special meeting may be
called at any time by the Trustees or upon petition of Holders of more than 50%
of the TrUEPrS outstanding (unless substantially the same matter was voted on
during the preceding 12 months), and shall be called as required by the
Investment Company Act or pursuant to paragraph (v)(B) of the definition of
Exchange Event and the rules and regulations thereunder, including, without
limitation, when requested by the Holders of not less than 10% of the TrUEPrS
outstanding for the purposes of voting upon the question of the removal of any
Trustee or Trustees. The Trustees shall establish, and notify the Holders in
writing of, the record date for each such meeting which shall be not less than
10 nor more than 50 days before the meeting date. Holders at the close of
business on the record date will be entitled to vote at the meeting. The
Administrator shall, as soon as possible after any such record date (or prior to
such record date if appropriate), mail by first class mail to each Holder a
notice of meeting and a proxy statement and form of proxy in the form approved
by the Trustees and complying with the Investment Company Act and the rules and
regulations thereunder. Except as otherwise specified herein, in the Prospectus
(including, without limitation, changes to the Trust's fundamental policies set
forth in the Prospectus) or in any provision of the Investment Company Act and
the rules and regulations thereunder, any action may be taken by vote of Holders
of a majority of the TrUEPrS outstanding present in person or by proxy if
Holders of a majority of TrUEPrS outstanding on the record date are so
represented. Each TrUEPrS shall have one vote and may be voted in person or by
duly executed proxy; provided, however, that any investment company registered
under the Investment Company Act and any company excepted from the definition of
"Investment Company" pursuant to Section 3(c)(1) or 3(c)(7) of the Investment
Company Act owning TrUEPrS in excess of the limits imposed by Sections
12(d)(1)(A)(i) and 12(d)(1)(C) of the 1940 Act must vote their TrUEPrS in
proportion to the vote of all other Holders of TrUEPrS that are not such
investment companies registered under the Investment Company Act. Any proxy may
be revoked by notice in writing, by a subsequently dated proxy or by voting in
person at the meeting, and no proxy shall be valid after eleven months following
the date of its execution.
(b) Whenever the holders of the ADRs or the NAB Preference Shares are
entitled to vote on any matter,
20
(i) the Trustees shall call a special meeting of the Holders in
accordance with the procedures described in Section 7.01(a) hereof so
that the Holders can indicate how the ADSs or the NAB Preference Shares
should be voted pursuant to the voting rights granted in the Security
and Pledge Agreements, the Deposit Agreement or the terms of the NAB
Preference Shares; or
(ii) in lieu of a special meeting of the Holders, such Holders may
provide a written consent, in the manner required by the Investment
Company Act and the rules and regulations thereunder, in which such
Holders will instruct the Trustees of the Trust as to the exercise of
the voting rights pertaining to the ADSs or the NAB Preference Shares.
Such vote shall be taken a sufficient time before the vote of the
ADSs or the NAB Preference Shares so that the Trustees can determine the
results of such vote and direct the Jersey Subsidiary, the Collateral Agent
or the Depositary to vote the ADSs or the NAB Preference Shares in accordance
with such results.
(c) Whenever the holder of the Jersey Preference Shares is entitled to
vote on any matter,
(i) the Trustees shall call a special meeting of the Holders in
accordance with the procedures described in Section 7.01(a) hereof so
that the Holders can indicate how the Jersey Preference Shares should
be voted pursuant to the voting rights granted in the Jersey Preference
Shares Security and Pledge Agreement; or
(ii) in lieu of a special meeting of the Holders, such Holders may
provide a written consent, in the manner required by the Investment
Company Act and the rules and regulations thereunder, in which such
Holders will instruct the Trustees of the Trust as to the exercise of
the voting rights pertaining to the Jersey Preference Shares.
Such vote shall be taken a sufficient time before the vote of the
Jersey Preference Shares so that the Trustees can determine the results of
such vote and direct the U.K. Company to vote the Jersey Preference Shares in
accordance with such results.
Section 7.02. BOOKS AND RECORDS; REPORTS. (a) The Trustees shall keep a
certified copy or duplicate original of this Trust Agreement on file at the
office of the Trust and the office of the Administrator available for inspection
at all reasonable times during its usual business hours by any Holder. The
Trustees shall keep proper books of record and account for all the transactions
under this Trust Agreement at the office of the Trust and the office of the
Administrator, and such books and records shall be open to inspection by any
Holder at all reasonable times during usual business hours. The Trustees shall
retain all books and records in compliance with Section 31 of the Investment
Company Act and the rules and regulations thereunder.
(b) With each payment to Holders the Paying Agent shall set forth,
either in the instruments by means of which payment is made or in a separate
statement, the amount being paid from the Trust Account expressed as a U.S.
dollar amount per TrUEPrS and the other information required under Section 19 of
the Investment Company Act and the rules and regulations thereunder. The
Trustees shall prepare and file or distribute reports as required by
21
Section 30 of the Investment Company Act and the rules and regulations
thereunder. The Trustees shall prepare and file such reports as may from time to
time be required to be filed or distributed to Holders under any applicable
state or Federal statute or rule or regulation thereunder, and shall file such
tax returns as may from time to time be required under any applicable state or
Federal statute or rule or regulation thereunder. One of the Trustees shall be
designated by resolution of the Trustees to make the filings and give the
notices required by Rule 17g-1 under the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, the value of the Debt Securities will be determined in
good faith by the Trustees pursuant to procedures adopted by them.
Section 7.03. DISSOLUTION. (a) The Trust created hereby shall dissolve, and
its affairs be wound up, upon the earliest of (i) the date 90 days after the
execution of this Trust Agreement if (x) the TrUEPrS have not theretofore been
issued or (y) the net worth of the Trust is not at least US$100,000 at such
time, (ii) the Business Day after the distributions of ADSs or cash pursuant to
Section 2.07, and (iii) the date which is 21 years less 91 days after the death
of the last survivor of all of the descendants of Xxxxxx X. Xxxxxxx Xx., the
former United States Ambassador to the Court of St. Xxxxx, living on the date
hereof. The Trust is irrevocable, the Sponsor has no right to withdraw any
assets constituting a portion of the Trust Estate, and the dissolution of the
Sponsor shall not operate to dissolve the Trust. The death or incapacity of any
Holder shall not operate to terminate this Trust Agreement, nor entitle his
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, and shall
not otherwise affect the rights, obligations and liabilities of the parties
hereto.
Section 7.04. AMENDMENT AND WAIVER. (a) This Trust Agreement may be amended
from time to time by the Trustees for any purpose prior to the issuance and sale
to the Underwriters of the TrUEPrS and thereafter without the consent of any of
the Holders (i) to cure any ambiguity or to correct or supplement any provision
contained herein or therein which may be defective or inconsistent with any
other provision contained herein or therein; (ii) to change any provision hereof
or thereof as may be required by applicable law or the Commission or any
successor governmental agency exercising similar authority; or (iii) to make
such other provisions in regard to matters or questions arising hereunder or
thereunder as shall not materially adversely affect the interests of the Holders
(as determined in good faith by the Trustees, who may rely on an opinion of
counsel); provided, however, that no such amendment may be made if it would
cause an Exchange Event to occur.
(b) This Trust Agreement may also be amended from time to time by the
Trustees (or the performance of any of the provisions of the Trust Agreement may
be waived) with the consent by the required vote of the Holders in accordance
with Section 7.01 hereof; provided that this Trust Agreement may not be amended
(i) without the consent by vote of the Holders of all TrUEPrS then outstanding,
so as to increase the number of TrUEPrS issuable hereunder above the number of
TrUEPrS specified in Section 2.05(c) hereof or such lesser number as may be
outstanding at any time during the term of this Trust Agreement, (ii) to reduce
the interest in the Trust represented by TrUEPrS without the consent of the
Holders of such TrUEPrS, (iii) if such amendment is prohibited by the Investment
Company Act or other applicable law or (iv) without the consent by vote of the
Holders of all TrUEPrS then outstanding, if such amendment would effect a change
in Sections 2.04, 2.05, 2.06, 2.07, 2.08
22
or 3.02 hereof or in the voting requirements set forth in Section 7.01 hereof or
this Section 7.04 or (v) in such manner as would cause an Exchange Event to
occur.
(c) Any of the agreements referred to in Section 2.05(a) hereof may be
amended from time to time by the Trustees and the other parties thereto for any
purpose without the consent of any of the Holders.
(d) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder
and the NAB Affiliate.
(e) Notwithstanding subsections (a) and (b) of this Section 7.04, no
amendment hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent or the Custodian to take any action or direct or permit any Person
to take any action that (i) would vary the investment of Holders within the
meaning of Treasury Regulation Section 301.7701-4(c), or (ii) would or could
cause the Trust, or direct or permit any action to be taken that would or could
cause the Trust, not to be a "grantor trust" under the Code.
Section 7.05. ACCOUNTANTS. (a) The Trustees shall, in accordance with
Section 30 of the Investment Company Act, file annually with the Commission such
information, documents and reports as investment companies having securities
registered on a national securities exchange are required to file annually
pursuant to Section 13(a) of the Exchange Act and the rules and regulations
issued thereunder. The Trustees shall transmit to the Holders, at least
semi-annually, the reports required by Section 30(d) of the Investment Company
Act and the rules and regulations thereunder, including, without limitation, a
balance sheet accompanied by a statement of the aggregate value of investments
on the date of such balance sheet, a list showing the amounts and values of such
investments owned on the date of such balance sheet, and a statement of income
for the period covered by the report. Financial statements contained in such
annual reports shall be accompanied by a certificate of independent public
accounts based upon an audit not less in scope or procedures than that which
independent public accountants would ordinarily make for the purpose of
complying with generally accepted auditing standards and shall contain such
information as the Commission may prescribe. Each such report shall state that
such independent public accountants have verified investments owned, either by
actual examination or by receipt of a certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a)
above shall be selected at a meeting held within 30 days before or after the
beginning of the fiscal year by the vote, cast in person, of a majority of the
Trustees who are not "interested persons" as defined in the Investment Company
Act and such selection shall be submitted for ratification at the first meeting
of Holders to be held as set forth in Section 7.01 hereof, and thereafter as
required by the Investment Company Act and the rules and regulations thereunder.
The employment of any independent public accountant for the Trust shall be
conditioned upon the right of the Holders by a vote of the lesser of (i) 67% or
more of the TrUEPrS present at a special meeting of Holders, if Holders of more
than 50% of TrUEPrS outstanding are present or represented by proxy at such
meeting or (ii) more than 50% of the TrUEPrS outstanding to terminate such
employment at any time without penalty.
(c) The foregoing provisions of this Section 7.05 are in addition to
any applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
23
Section 7.06. NATURE OF HOLDER'S INTEREST. Each Holder holds at any given
time a proportionate undivided beneficial interest in the Trust Estate, but does
not have any title or right to take title or possession of any portion of the
Trust Estate. Each Holder expressly waives any right he may have under any rule
of law, the provisions of any statute or otherwise, to require the Trustees at
any time to account, in any manner other than as expressly provided in this
Trust Agreement, for the Trust Estate or any component thereof. No Holder shall
have any right except as provided herein to control or determine the operation
and management of the Trust or the obligations of the parties hereto. Nothing
set forth herein or in the Certificates shall be construed to constitute the
Holders from time to time as partners, joint venturers or members of an
association.
Section 7.07. NO RECOURSE. 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 Trust Agreement or in respect hereof
against any incorporator, shareholder or affiliate of the Trust or the Trustees,
the Administrator, the Custodian or the Paying Agent or any predecessor,
successor or affiliate of the Trust 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 Trust Agreement by the Trust; provided,
however, that the foregoing shall not relieve any of such persons or entities
from liability for, or prevent recourse against such persons or entities in
respect of, their willful misfeasance, bad faith, gross negligence or reckless
disregard of their duties under this Agreement or the other agreements referred
to herein. Notwithstanding anything to the contrary contained herein, nothing in
this Section shall be construed to affect or limit the Trust's obligations under
this Trust Agreement.
Section 7.08. ENFORCEMENT OF RIGHTS. The Trust will enforce its rights with
respect to any payment of money under the Fundamental Trust Agreements (as
defined in the Purchase Agreement) and will enforce its rights with respect to
any actions, omissions or other non-monetary matters against any or all parties
to the aforesaid Fundamental Trust Agreements.
Section 7.09. DELAWARE LAW TO GOVERN. This Trust Agreement is executed and
delivered in the State of Delaware, and all laws or rules of construction of the
State of Delaware, without regard to principles of conflict of laws, shall
govern the rights of the parties hereto and the Holders and the construction,
validity and effect of the provisions hereof.
Section 7.10. NOTICES. Any notice, demand, direction or instruction to be
given to the Sponsor hereunder shall be in writing and shall be duly given if
mailed or delivered to ML IBK Positions, Inc. at World Financial Center, Xxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address as shall be specified
by the Sponsor to the other parties hereto in writing. Any notice, demand,
direction or instruction to be given to the Trust and the Trustees hereunder
shall be in writing and shall be duly given if mailed or delivered to the Trust
x/x Xxx Xxxx xx Xxx Xxxx at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and to
each Trustee at such Trustee's address set forth beneath its signature below, or
such other address as shall be specified to the other parties hereto by such
party in writing. Any notice to be given to a Holder shall be duly given if
mailed, first class postage prepaid, or by such other substantially equivalent
means
24
as the Trustees may deem appropriate, or delivered to such Holder at the address
of such Holder appearing on the registry of the Paying Agent.
Section 7.11. SEVERABILITY. If any one or more of the covenants, agreements,
provisions or terms of this Trust Agreement shall be for any reason whatsoever
held invalid, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions and terms
of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates, or the rights of the Holders thereof.
Section 7.12. COUNTERPARTS. This Trust 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.
Section 7.13. SUCCESSORS AND ASSIGNS. Whenever in this Trust Agreement any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Trust Agreement by the Sponsor and Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
25
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
ML IBK POSITIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
TRUSTEES:
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxx III
--------------------------------------
Name: Xxxxxxx X. Xxxxxx III
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
/s/ Xxxxx X. X'Xxxxx
--------------------------------------
Name: Xxxxx X. X'Xxxxx
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
DEPOSITOR
/s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx,
as Depositor
(Solely to reflect his transfer of his
interest in the Trust and to reflect his
withdrawal from the Trust)
26
Exhibit A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO NAB EXCHANGEABLE
PREFERRED TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. (OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. THIS CERTIFICATE MAY BE EXCHANGED BY AN AUTHORIZED REPRESENTATIVE OF DTC
IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, REGISTERED IN THE NAMES
OF SUCH HOLDERS AS SUCH REPRESENTATIVE OF DTC SHALL SPECIFY, IN WHICH CASE, A
NEW CERTIFICATE WILL BE ISSUED IN THE NAME OF CEDE & CO. (OR IN SUCH OTHER NAME
AS IS REQUESTED BY SUCH AUTHORIZED REPRESENTATIVE OF DTC) REPRESENTING THE
SECURITIES NOT ISSUED IN DEFINITIVE FORM.
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
TrUEPrS
NAB EXCHANGEABLE PREFERRED TRUST
CUSIP NO.
---------------
NO. TRUST UNITS
-------- -----------------------
EXCHANGEABLE FOR PREFERENCE SHARES
THIS CERTIFIES THAT CEDE & CO. IS THE RECORD OWNER OF ___________ TRUST UNITS
EXCHANGEABLE FOR PREFERENCE SHARES-SM- ("TrUEPrS-SM-") CONSTITUTING A
PROPORTIONATE UNDIVIDED BENEFICIAL INTEREST IN THE ASSETS OF NAB EXCHANGEABLE
PREFERRED TRUST, A TRUST GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
PURSUANT TO A TRUST AGREEMENT AMONG ML IBK POSITIONS, INC., THE TRUSTEES NAMED
THEREIN, THE DEPOSITOR NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN).
THIS CERTIFICATE IS ISSUED UNDER, AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF, THE TRUST AGREEMENT, TO WHICH THE HOLDER OF THIS CERTIFICATE BY
VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A COPY OF WHICH TRUST
AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUST'S ADMINISTRATOR AND PAYING
AGENT, THE BANK OF NEW YORK, 000 XXXXXXX XXXXXX, XXX XXXX, XXX XXXX 00000.
THIS CERTIFICATE IS TRANSFERABLE AND EXCHANGEABLE BY THE REGISTERED OWNER IN
PERSON AT THE OFFICE OF THE PAYING AGENT UPON PRESENTATION AND SURRENDER OF
THIS CERTIFICATE ACCOMPANIED BY ANY DOCUMENTS THAT THE PAYING
--------
-SM- Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
A-1-1
AGENT MAY REQUIRE FOR TRANSFER, IN FORM SATISFACTORY TO THE PAYING AGENT AND
PAYMENT OF THE FEES AND EXPENSES PROVIDED IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE PAYING
AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
NAB Exchangeable Preferred Trust
Dated: , 1998
-----------------
By
-------------------------------
Xxxxxx X. Xxxxxxx
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK
as Paying Agent
By
-------------------------
Authorized Signature
A-1-2
Exhibit A-2
NAB EXCHANGEABLE PREFERRED TRUST
NO. TRUST UNITS
---------- ------
EXCHANGEABLE FOR
PREFERENCE SHARES
CUSIP NO.
--------------
THIS CERTIFIES THAT ________ IS THE RECORD OWNER OF _______ FULLY PAID AND
NON-ASSESSABLE TRUST UNITS EXCHANGEABLE FOR PREFERENCE SHARES -SM-
("TrUEPrS-SM-") CONSTITUTING A PROPORTIONATE UNDIVIDED BENEFICIAL INTEREST IN
THE ASSETS OF NAB EXCHANGEABLE PREFERRED TRUST, A TRUST GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE PURSUANT TO AN AMENDED AND RESTATED TRUST AGREEMENT
(THE "TRUST AGREEMENT") AMONG ML IBK POSITIONS, INC., THE TRUSTEES NAMED
THEREIN, THE DEPOSITOR NAMED THEREIN AND THE HOLDERS (AS DEFINED THEREIN).
THIS CERTIFICATE IS ISSUED UNDER, AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF, THE TRUST AGREEMENT, AS THE SAME MAY BE AMENDED FROM TIME TO
TIME, TO WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE
HEREOF ASSENTS AND IS BOUND, A COPY OF WHICH TRUST AGREEMENT IS AVAILABLE AT
THE OFFICE OF THE TRUST'S PAYING AGENT, THE BANK OF NEW YORK, 000 XXXXXXX
XXXXXX, XXX XXXX, XXX XXXX 00000. THIS CERTIFICATE IS TRANSFERABLE AND
EXCHANGEABLE BY THE REGISTERED OWNER IN PERSON AT THE OFFICE OF THE PAYING
AGENT UPON PRESENTATION AND SURRENDER OF THIS CERTIFICATE ACCOMPANIED BY ANY
DOCUMENTS THAT THE PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM SATISFACTORY
TO THE PAYING AGENT AND PAYMENT OF THE FEES AND EXPENSES PROVIDED IN THE TRUST
AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE PAYING
AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
DATED:
NAB EXCHANGEABLE PREFERRED TRUST
By:
-------------------------------
Xxxxxx X. Xxxxxxx
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK
as Paying Agent
By:
------------------------
Authorized Signature
--------
-SM- Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
A-2-1
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE AMENDED AND RESTATED TRUST AGREEMENT AMONG ML IBK POSITIONS,
INC., THE TRUSTEES NAMED THEREIN, THE DEPOSITOR NAMED THEREIN AND THE HOLDERS
(AS DEFINED THEREIN) TO WHICH THE HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE
ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants UNIF GIFT MIN ACT-- UNIF XXXX MIN ACT--
in common ___Custodian___ ___Custodian__
TEN ENT--as tenants by (Cust) (Minor) (Cust) (Minor)
the entireties
JT TEN-- as joint tenants under Uniform Gifts to under Uniform Transfers to
with right of Minors Act -------- Minors Act --------
survivorship and (State) (State)
not as tenants in
common
Additional abbreviations also may be used though not in the above list.
For value received, _____________________ hereby sell, assign and transfer unto
Please insert social securities or
other identifying number of assignee
-----------------------------------------------------------------
-----------------------------------------------------------------
(Please Print or Typewrite Name and Address, Including Postal Zip Code, of
Assignee) _________ TrUEPrS of a proportionate undivided beneficial interest
represented by the within Certificate, and do hereby irrevocably constitute
and appoint _________ Attorney to transfer the said TrUEPrS on the books of
the within-named Trust with full power of substitution in the premises.
Dated:
-------------------------
---------------------------------------------------------------------
NOTICE: The Signature to this assignment must correspond with the name
as written upon the face of the Certificate in every particular,
without alteration or enlargement or any change whatever.
Signature Guaranteed:
----------------------------------------------------------
The Signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
A-2-2
