EXHIBIT 99(K)(7)
TRUST EXPENSE AGREEMENT
This TRUST EXPENSE AGREEMENT dated as of this ____ day of November, 1998,
between Aldobrandini (Holdings) Limited, a special purpose limited liability
company incorporated under the laws of, and domiciled in, Jersey, Channel
Islands (the "Jersey Holding Company") and The Bank of New York (the "Service
Provider"), in its capacities as administrator, custodian and paying agent for
ANZ Exchangeable Preferred Trust II (the "Trust").
WHEREAS, the Trust is a business trust created pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)), under and by virtue of the Amended and
Restated Trust Agreement dated as of November 6, 1998 (the "Trust Agreement");
and
WHEREAS, in consideration of the investment by the Trust in the Debt
Securities, the Jersey Holding Company desires to make provisions for the
payment of certain ongoing expenses of the Trust;
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the Trust Agreement, the Expense and
Indemnity Agreement or the Purchase Agreement.
2. AGREEMENT TO PAY EXPENSES. On each Dividend Payment Date, the Jersey
Holding Company shall pay to the Service Provider on behalf of the Trust in
immediately available funds the Quarterly Amount (as defined in the Expense and
Indemnity Agreement) of the Trust for the period commencing on such Dividend
Payment Date to but excluding the next succeeding Dividend Payment Date (the
"Quarterly Dividend Period"). Such payments shall be deposited and held in an
expense account maintained by the Service Provider on behalf of the Trust that
is separate from the Trust Account pursuant to Section 3.05 of the Trust
Agreement (the "Trust Expense Account"). In the event that the aggregate amount
of expenses payable by the Trust during any Quarterly Dividend Period exceeds
the sum of its Quarterly Amount for such Quarterly Dividend Period and its cash
balance at the beginning of such period, the Jersey Holding Company shall pay to
the Trust the amount of such excess; provided, however, that the foregoing shall
only apply to expenses incurred by the Trust as permitted by, and reasonably
related to the business purpose specified in, the Trust Agreement or required or
incurred by operation of applicable law or regulation or executive, judicial or
administrative order or decree.
3. CONDITION TO PAYMENT. The obligations of the Jersey Holding Company
under Section 2 hereof shall be subject to the condition that (i) the TrUEPrS
issued by the Trust shall have been issued and paid for at the Closing Time (as
defined in the Purchase Agreement)
and (ii) the Trust has performed its obligations under the Expense and Indemnity
Agreement, including Section 5 thereof.
4. TERM OF CONTRACT; TRUST DISSOLUTION. This Agreement shall survive the
Exchange Date and continue in effect until the dissolution of the Trust in
accordance with Section 7.03 of the Trust Agreement but only with respect to
Quarterly Amounts payable prior to the Exchange Date or expenses arising, or
relating to periods ending, on or prior to the Exchange Date. After the
Exchange Date and prior to the dissolution of the Trust, any amount remaining in
the Trust Expense Account, after deducting any expenses payable by the Trust,
shall be paid to the ANZ Affiliate pursuant to the Expense and Indemnity
Agreement as an Additional Indemnity Fee (as defined therein).
5. STATEMENTS AND REPORTS. The Service Provider shall collect and
safekeep all demands, bills, invoices or other written communications received
from third parties in connection with any expenses payable pursuant to this
Agreement and shall prepare and maintain (or cause to be prepared and
maintained) adequate books and records showing all receipts and disbursements of
funds in connection therewith. The Jersey Holding Company shall have the right
to inspect and to copy, at its expense, all such documents, books and records at
all reasonable times and from time to time during the term of this Agreement.
6. NO ASSIGNMENT. No party to this Agreement may assign its rights or
delegate its duties hereunder without the prior written consent of the other
party.
7. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the matters contained herein and supersedes all
prior agreements or understandings. No amendment or modification of this
Agreement shall be valid unless the amendment or modification is in writing and
is signed by all the parties to this Agreement.
8. NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other address for a particular party as shall be specified by such
party in a like notice given pursuant to this Section 8):
The Service Provider: The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxx Xxxxxxxx
The Jersey Holding
Company: Aldobrandini (Holdings) Limited
Xxxxxxx Xxxxx, Xxx Xxxx
Xx. Xxxxxx, Xxxxxx XX0 0XX
British Channel Islands
Telecopier: 44-1534-500-450
Attention: Company Secretary
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Except as otherwise specifically provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be deemed to
have been duly given if either (i) personally delivered (including delivery by
courier service or by Federal Express or any other nationally recognized
overnight delivery service for next day delivery) to the offices set forth
above, in which case they shall be deemed received on the first Business Day by
which delivery shall have been made to said offices, (ii) transmitted by any
standard form of telecommunication to the offices set forth above, in which case
they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case delivery shall be deemed to
have been received on the first Business Day on which such acknowledgment is
refused).
9. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
10. CONSENT TO JURISDICTION. The Jersey Holding Company agrees that any
legal suit, action or proceeding brought by the Service Provider or by any
person controlling the Service Provider, arising out of or based upon this
Agreement may be instituted in any State or Federal court in the Borough of
Manhattan, City and State of New York, and, to the fullest extent permitted by
law, waives any objection which it may now or hereafter have to the laying of
venue of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such court in any suit, action or proceeding. The Jersey
Holding Company has appointed CT Corporation System ("CT Corporation") as its
authorized agent (the "Authorized Agent") upon which process may be instituted
in any State or Federal court in the Borough of Manhattan, City and State of New
York by the Service Provider and expressly accepts the jurisdiction of any such
court in respect of such action. Such appointment shall be irrevocable unless
and until a successor authorized agent, located or with an office in the Borough
of Manhattan, City and State of New York, shall have been appointed by the
Jersey Holding Company and such appointment shall have been accepted by such
successor authorized agent. The Jersey Holding Company represents and warrants
that CT Corporation has agreed to act as said agent for service of process, and
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Jersey Holding Company shall be deemed, in
every respect, effective service of process upon the Jersey Holding Company.
11. JUDGMENT CURRENCY. The Jersey Holding Company hereby agrees to
indemnify the Service Provider against any loss incurred by the Service Provider
as a result of any judgment or order being given or made for any amount due
hereunder and such judgment or order being expressed and paid in a currency (the
"Judgment Currency") other than U.S. dollars and as a result of any variation as
between (i) the rate of exchange at which the U.S. dollar amount is converted
into the Judgment Currency for the purpose of such judgment or order, and (ii)
the rate of exchange at which the Service Provider would have been able to
purchase U.S.
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dollars with the amount of the Judgment Currency actually received by the
Service Provider had the Service Provider utilized such amount of Judgment
Currency to purchase U.S. dollars as promptly as practicable upon the receipt
thereof. The foregoing indemnity shall constitute a separate and independent
obligation of the Jersey Holding Company and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include an allowance for any customary or reasonable premium
and costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
12. WAIVER OF IMMUNITIES. To the extent that the Jersey Holding Company
or any of its properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from set-
off or process, from attachment upon or prior to judgment, from attachment in
aid of execution of judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with this Agreement, the Jersey Holding Company
hereby irrevocably and unconditionally, to the extent permitted by applicable
law, waives, and agrees not to plead or claim, any such immunity and consents to
such relief and enforcement.
13. 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.
14. 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives the date first above written.
THE BANK OF NEW YORK
By:___________________________________
Name:
Title:
ALDOBRANDINI (HOLDINGS) LIMITED
By:___________________________________
Name:
Title:
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