EXHIBIT 99(K)(2)
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this ____ day of November, 1998
(this "Agreement"), by and between The Bank of New York, a New York banking
corporation (the "Paying Agent"), and ANZ Exchangeable Preferred Trust II (such
trust and the trustees thereof acting in their capacities as such being referred
to herein as the "Trust"), a business trust created pursuant to the Business
Trust Act (the "Delaware Act") of the State of Delaware (Chapter 38, Title 12,
of the Delaware Code, 12 Del. C. (Sections 3801 et seq.)) and governed by an
Amended and Restated Trust Agreement by and among ML IBK Positions, Inc., as
sponsor, Xxxxx Xxxxxxxxx, as depositor, the Trustees named therein and the
Holders from time to time, dated as of November 6, 1998 (the "Trust Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management investment
company, as defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"), created for the purposes of issuing the Trust's Trust
Units Exchangeable for Preference SharesSM ("TrUEPrSSM") in accordance with the
terms and conditions of the Trust Agreement and investing the proceeds thereof
in and holding Mandatorily Redeemable Debt Securities due 2048 (the "Debt
Securities") issued by Aldobrandini (UK) Company (the "U.K. Company");
WHEREAS, the Trust desires to engage the services of the Paying Agent to
assume certain responsibilities and to perform certain duties as the paying
agent, transfer agent and registrar with respect to the TrUEPrS upon the terms
and conditions of this Agreement; and
WHEREAS, the Paying Agent is qualified and willing to assume such
responsibilities and to perform such duties, subject to the supervision of the
Trust, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the respective meanings specified in the Trust Agreement.
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/SM/ Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
ARTICLE II
PAYING AGENT
2.1 APPOINTMENT OF PAYING AGENT AND ACCEPTANCE. The Trust Agreement
provides that The Bank of New York shall act as the initial Paying Agent. The
Bank of New York accepts such appointment and agrees to act in accordance with
its standard procedures and the provisions of the Trust Agreement and the
provisions set forth in this Article II as Paying Agent with respect to the
TrUEPrS. Without limiting the generality of the foregoing, The Bank of New
York, as Paying Agent, agrees that it shall establish and maintain the Trust
Account, subject to the provisions of Section 2.3 hereof.
2.2 CERTIFICATES AND NOTICES. The Trust shall deliver to the Paying Agent
the certificates and notices required to be delivered to the Paying Agent
pursuant to the Trust Agreement, and the Paying Agent shall mail or publish such
certificates or notices as required by the Trust Agreement, but the Paying Agent
shall have no responsibility to confirm or verify the accuracy of certificates
or notices of the Trust so delivered.
2.3 PAYMENTS AND INVESTMENTS. The Paying Agent shall make payments out of
the Trust Account as provided for in Section 3.02 of the Trust Agreement. The
Paying Agent shall make payments for any of the Trust's ongoing expenses out of
a separate expense account as provided for in Section 3.05 of the Trust
Agreement. The Paying Agent on behalf of the Trust shall take the actions set
forth in Sections 2.06, 2.07, 3.02, 3.04, 3.05, 7.02 and 7.03 of the Trust
Agreement upon instructions to do so from the Administrator of the
Administration Agreement (except that with respect to its obligations under
Section 7.03 of the Trust Agreement, the Paying Agent shall act without
instructions from the Administrator).
2.4 INSTRUCTIONS FROM ADMINISTRATOR. The Paying Agent shall receive and
execute all instructions from the Administrator, except to the extent they
conflict with or are contrary to the terms of the Trust Agreement or this
Agreement. In such cases wherein the Administrator and the Paying Agent are the
same party, the Paying Agent shall act in conjunction with the duties it agreed
to and responsibilities it accepted in the Administration Agreement.
ARTICLE III
TRANSFER AGENT AND REGISTRAR
3.1 ORIGINAL ISSUE OF CERTIFICATES. On the date the TrUEPrS sold pursuant
to the Purchase Agreement are originally issued, certificates for the TrUEPrS
shall be issued by the Trust, and, at the written request of the Trust,
registered in such names and such denominations as the Underwriters shall have
previously requested of the Trust, executed manually or in facsimile by the
Managing Trustee and countersigned by the Paying Agent. At no time shall the
aggregate number of TrUEPrS represented by such countersigned certificates
exceed the number of then outstanding TrUEPrS, except as permitted by Section
3.4 hereof.
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3.2 REGISTRY OF HOLDERS. The Paying Agent shall maintain a registry of
the Holders of the TrUEPrS.
3.3 REGISTRATION OF TRANSFER OF THE TrUEPrS. The TrUEPrS shall be
registered for transfer or exchange, and new certificates shall be issued in
accordance with Section 5.02 of the Trust Agreement, in the name of the
designated transferee or transferees, upon surrender of the old certificates if
the requirements of Section 8-401 of the New York Uniform Commercial Code are
met.
3.4 REPLACEMENT CERTIFICATES. Mutilated, destroyed, lost or stolen
certificates for TrUEPrS shall be replaced by the Paying Agent subject to, and
in accordance with, the provisions of Section 5.03 of the Trust Agreement. Any
request by the Managing Trustee to the Paying Agent to issue a replacement or
new certificate pursuant to Section 5.03 of the Trust Agreement shall be deemed
to be a representation and warranty by the Trust to the Paying Agent that such
issuance will comply with provisions of law, the Trust Agreement and the
resolutions adopted by the Trustees with respect to lost securities.
3.5 TRANSFER BOOKS. The Paying Agent shall maintain the transfer books
listing the Holders of the TrUEPrS. In case of any written request or demand
for the inspection of the transfer books of the Trust or any other books in the
possession of the Paying Agent, the Paying Agent will notify the Trust and
secure instructions as to permitting or refusing such inspection. The Paying
Agent reserves the right, however, to exhibit the transfer books or other books
to any person in case it is advised by its counsel that its failure to do so
would be unlawful.
3.6 DISPOSITION OF CANCELLED CERTIFICATES; RECORDS. The Paying Agent
shall retain certificates which have been cancelled in transfer or in exchange
and accompanying documentation in accordance with applicable rules and
regulations of the Securities and Exchange Commission (the "Commission") for six
calendar years from the date of such cancellation, and shall make such records
available during this period at any time, or from time to time, for reasonable
periodic, special, or other examinations by representatives of the Commission
and the Board of Governors of the Federal Reserve System. In case of any
request or demand for the inspection of the register of the Trust or any other
books in the possession of the Paying Agent, the Paying Agent will notify the
Trust and seek to secure instructions as to permitting or refusing such
inspection. The Paying Agent reserves the right, however, to exhibit the
register or other records to any person in case it is advised by its counsel
that its failure to do so would (i) be unlawful, or (ii) expose it to liability,
unless the Trust shall have offered indemnification satisfactory to the Paying
Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Paying Agent that:
(a) the Trust is a validly existing business trust under the Delaware Act
and has full power under the Trust Agreement to execute and deliver this
Agreement and to authorize, create and issue the TrUEPrS;
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(b) this Agreement has been duly and validly authorized, executed and
delivered by the Trust and constitutes the valid and binding agreement of the
Trust, enforceable against the Trust in accordance with its terms, subject as to
such enforceability to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equitable principles;
(c) the form of the certificate evidencing the TrUEPrS complies with all
applicable laws of the State of Delaware;
(d) the TrUEPrS have been duly and validly authorized, executed and
delivered by the Trust and are validly issued;
(e) the offer and sale of the TrUEPrS pursuant to the Purchase Agreement
has been registered under the Securities Act of 1933, as amended, and the Trust
has been registered under the Investment Company Act and no further action by or
before any governmental body or authority of the United States or of any state
thereof is required in connection with the execution and delivery of this
Agreement or the issuance of the TrUEPrS;
(f) the execution and delivery of this Agreement and the issuance and
delivery of the TrUEPrS do not and will not conflict with, violate, or result in
a breach of, the terms, conditions or provisions of, or constitute a default
under, the Trust Agreement, any law or regulation, any order or decree of any
court or public authority having jurisdiction over the Trust, or any mortgage,
indenture, contract, agreement or undertaking to which the Trust is a party or
by which it is bound; and
(g) no taxes are payable upon or in respect of the execution of this
Agreement or the issuance of the TrUEPrS.
ARTICLE V
DUTIES AND RIGHTS
5.1 DUTIES. (a) The Paying Agent is acting solely as agent for the Trust
hereunder and owes no fiduciary duties to any other Person by reason of this
Agreement.
(b) In the absence of bad faith, gross negligence or willful misfeasance on
its part in the performance of its duties hereunder or its reckless disregard of
its duties and obligations hereunder, the Paying Agent shall not be liable for
any action taken, suffered, or omitted in the performance of its duties under
this Agreement or in accordance with any direction or request of the Managing
Trustee not inconsistent with the provisions of this Agreement. The Paying
Agent shall under no circumstances be liable for any punitive, exemplary,
indirect or consequential damages hereunder.
5.2 RIGHTS. (a) The Paying Agent may rely and shall be protected in
acting in good faith or refraining from acting upon any communication authorized
hereby and upon any written instruction, notice, request, direction, consent,
report, certificate, share certificate or other instrument, paper or document
reasonably believed by it to be genuine. The Paying Agent shall
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not be liable for acting upon any telephone communication authorized hereby
which the Paying Agent believes in good faith to have been given by the Managing
Trustee.
(b) The Paying Agent may consult with legal counsel and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Paying Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys appointed with
due care by it hereunder but shall be liable for the acts and omissions of such
persons to the same extent as if the functions had been performed by the Paying
Agent itself.
5.3 DISCLAIMER. The Paying Agent makes no representation as to (a) the
first two recitals of this Agreement or (b) the validity, sufficiency,
marketability or adequacy of the TrUEPrS.
5.4 COMPENSATION, EXPENSES AND INDEMNIFICATION. (a) The Paying Agent
shall receive for all services rendered by it under this Agreement and, upon the
prior written approval of the Trust, for all reasonable expenses, disbursements
and advances incurred or made by the Paying Agent in accordance with any
provision of this Agreement (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel), as provided in
Section 3.1 of the Administration Agreement.
(b) The Trust shall indemnify the Paying Agent for and hold it harmless
against any loss, liability or claim arising out of or in connection with the
performance of its obligations under this Agreement and any reasonable cost or
expense (including the reasonable costs of investigation, preparation for and
defense of legal and/or administrative proceedings relating to a claim against
it and reasonable attorneys' fees and disbursements) incurred in connection with
any such loss, liability or claim, provided such loss, liability, claim or
reasonable cost or expense is not the result of gross negligence, willful
misfeasance or bad faith on its part in the performance of its duties hereunder
or its reckless disregard of its duties or obligations hereunder.
Notwithstanding the foregoing, it is understood that (i) the Trust shall not, in
respect of the legal expenses of the Paying Agent 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 Paying Agent from and against any loss or
liability by reason of such settlement or judgment, (iii) the Trust may not pay
any amounts to the Paying Agent under this Section 5.4(b) from the Trust Estate
and (iv) the Trust shall not be liable for any loss, 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 Paying Agent and reasonable attorneys' fees and disbursements) in an amount
in excess of the amount received by the Trust under the Trust Expense Agreement
and the Expense and Indemnity Agreement in connection with such loss, liability
or claim. The indemnification provided by this Section 5.4(b) shall survive the
termination of this Agreement.
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ARTICLE VI
MISCELLANEOUS
6.1 TERM OF AGREEMENT. (a) The term of this Agreement is unlimited
unless terminated as provided in this Section 6.1 or unless the Trust is
dissolved, in which case this Agreement shall terminate ten days after the date
of dissolution of the Trust. This Agreement may be terminated by the Paying
Agent or by the Trust without penalty upon 60 days prior written notice to the
other party hereto; provided that neither party hereto may terminate this
Agreement pursuant to this Section 6.1(a) unless a successor Paying Agent shall
have been appointed and shall have accepted the duties of the Paying Agent.
Notwithstanding the foregoing, the termination of the Trust Agreement, any
Security and Pledge Agreement, the Administration Agreement or the Custodian
Agreement or the resignation or removal of the Custodian shall cause the
termination of this Agreement simultaneously therewith. If, within 30 days
after notice by the Paying Agent of termination of this Agreement, no successor
Paying Agent shall have been selected and accepted the duties of the Paying
Agent, the Paying Agent may apply to a court of competent jurisdiction for the
appointment of a successor Paying Agent.
(b) The respective rights and duties of the Trust and the Paying Agent
under this Agreement shall cease upon termination of this Agreement, except as
otherwise provided in this paragraph (b) and except that Section 5.4 hereof
shall survive the termination of this Agreement. Upon termination of this
Agreement, the Paying Agent shall, at the Trust's request, promptly deliver to
the Trust or to any successor Paying Agent as requested by the Trust (i) copies
of all books and records maintained by it and (ii) any funds deposited with the
Paying Agent by the Trust.
6.2 COMMUNICATIONS. All notices, requests and other communications given by
any party under this Agreement shall be directed as follows (or to such other
address for a particular party as shall be specified by such party in a like
notice given pursuant to this Section 6.2):
The Trust: ANZ Exchangeable Preferred Trust II
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
The Paying Agent: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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A copy of any notice, request or other communication given by any party
under this Agreement shall be directed to the Administrator if the duties of the
Administrator are being performed by a Person other than the Person performing
the obligations of the Paying Agent. Except for communications authorized to be
made by telephone pursuant to this Agreement, each such notice, request or
communication shall be in writing and shall be deemed to have been duly given if
either (i) personally delivered (including delivery by courier service or by
Federal Express or any other nationally recognized overnight delivery service
for next day delivery in the United States) to the offices set forth above, in
which case they shall be deemed received on the first Business Day by which
delivery shall have been made to said offices, (ii) transmitted by any standard
form of telecommunication to the offices set forth above, in which case they
shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case delivery shall be deemed to
have been received on the first Business Day on which such acknowledgment is
refused). Communications shall be given by the Trust or by the Administrator,
provided that the Trust shall not have delivered previously to the Paying Agent
an instrument in writing revoking the authorization of the Administrator to act
for it pursuant hereto.
6.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings,
oral, written or inferred, between the parties relating to the subject matter
hereof.
6.4 NO THIRD PARTY BENEFICIARIES. Nothing herein, express or implied,
shall give to any Person, other than the Trust, the Paying Agent and their
respective successors and permitted assigns, any benefit of any legal or
equitable right, remedy or claim hereunder.
6.5 AMENDMENT; WAIVER. (a) This Agreement shall not be deemed or
construed to be modified, amended, rescinded, cancelled or waived, in whole or
in part, except by a written instrument signed by a duly authorized
representative of each party hereto. The Trust shall notify the Paying Agent of
any change in the Trust Agreement prior to the effective date of any such
change.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
6.6 SUCCESSORS AND ASSIGNS. Any corporation into which the Paying Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Paying Agent shall be a party, shall be the successor Paying Agent hereunder and
under the Trust Agreement without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto, provided
that such corporation meets the requirements set forth in the Trust Agreement.
This
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Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the respective successors of each of the Trust and the Paying Agent. This
Agreement shall not be assignable by either the Trust or the Paying Agent
without the prior written consent of the other party.
6.7 SEVERABILITY. If any clause, provision or section hereof shall be
ruled invalid or unenforceable by any court of competent jurisdiction, the
invalidity or unenforceability of such clause, provision or section shall not
affect any of the remaining clauses, provisions or sections hereof.
6.8 EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
6.9 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 MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
ANZ EXCHANGEABLE PREFERRED TRUST II
By: __________________________
Xxxxxx X. Xxxxxxx,
as Managing Trustee
THE BANK OF NEW YORK
By: __________________________
Name:
Title:
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