<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 15, 1998
SECURITIES ACT FILE NO. 333-58751
INVESTMENT COMPANY ACT FILE NO. 811-08865
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM N-2
[X] REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[X] PRE-EFFECTIVE AMENDMENT NO. 3
[_] POST-EFFECTIVE AMENDMENT NO.
AND/OR
[X] REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
[X] AMENDMENT NO. 3
(CHECK APPROPRIATE BOX OR BOXES)
--------------
ANZ EXCHANGEABLE PREFERRED TRUST*
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
--------------
C/O PUGLISI & ASSOCIATES
850 LIBRARY AVENUE
SUITE 204
NEWARK, DELAWARE 19715
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
--------------
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (302) 738-6680
--------------
RL&F SERVICE CORP.
ONE RODNEY SQUARE
10TH FLOOR
10TH AND KING STREETS
WILMINGTON, DELAWARE 19801
(NAME AND ADDRESS OF AGENT FOR SERVICE)
--------------
COPY TO:
CRAIG E. CHAPMAN, ESQ.
BROWN & WOOD LLP
ONE WORLD TRADE CENTER
NEW YORK, NEW YORK 10048-0557
--------------
APPROXIMATE DATE OF PROPOSED PUBLIC OFFERING: As soon as practicable after
the effective date of this Registration Statement.
If any securities being registered on this form will be offered on a delayed
or continuous basis in reliance on Rule 415 under the Securities Act of 1933,
as amended, other than securities offered in connection with a dividend
reinvestment plan, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
* Formerly ABC Exchangeable Preferred Trust.
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<PAGE>
CROSS-REFERENCE SHEET*
<TABLE>
<CAPTION>
ITEM NUMBER IN FORM N-2 CAPTION IN PROSPECTUS
----------------------- ---------------------
<S> <C>
PART A--INFORMATION REQUIRED IN A PROSPECTUS
1. Outside Front Cover............. Front Cover Page
2. Inside Front and Outside Back
Cover Page...................... Front Cover Page; Inside Front Cover Page;
Underwriting
3. Fee Table and Synopsis.......... Prospectus Summary; Fee Table
4. Financial Highlights............ Not Applicable
5. Plan of Distribution............ Front Cover Page; Prospectus Summary; Net
Asset Value; Underwriting
6. Selling Shareholders............ Not Applicable
7. Use of Proceeds................. Use of Proceeds and Collateral
Arrangements; Investment Objective and
Policies
8. General Description of the Reg-
istrant......................... Front Cover Page; Prospectus Summary; The
Trust; Investment Objective and Policies;
Investment Restrictions; Risk Factors;
Dividends and Distributions; Additional
Information
9. Management...................... Trustees; Management Arrangements
10. Capital Stock, Long-Term Debt
and Other Securities........... Description of the TrUEPrS
11. Defaults and Arrears on Senior
Securities..................... Not Applicable
12. Legal Proceedings.............. Not Applicable
13. Table of Contents of the State-
ment of Additional Informa-
tion........................... Not Applicable
PART B--INFORMATION REQUIRED IN A STATEMENT OF ADDITIONAL INFORMATION
14. Cover Page..................... Not Applicable
15. Table of Contents.............. Not Applicable
16. General Information and Histo-
ry............................. Not Applicable
17. Investment Objective and Poli-
cies........................... Prospectus Summary; Investment Objective
and Policies; Investment Restrictions
18. Management..................... Trustees; Management Arrangements
19. Control Persons and Principal
Holders of Securities.......... Management Arrangements; Underwriting
20. Investment Advisory and Other
Services....................... Management Arrangements
21. Brokerage Allocation and Other
Practices...................... Investment Objective and Policies
22. Tax Status..................... Taxation
23. Financial Statements........... Experts; Independent Auditors' Report;
Statement of Assets and Liabilities
</TABLE>
PART C--OTHER INFORMATION
Information required to be included in Part C is set forth under the
appropriate Item, so numbered, in Part C to this Registration Statement.
- --------
* Pursuant to the General Instructions to Form N-2, all information required
to be set forth in Part B: Statement of Additional Information has been
included in Part A: The Prospectus.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 15, 1998
PROSPECTUS
16,000,000 TrUEPrS(SM)
ANZ EXCHANGEABLE PREFERRED TRUST
----------
Each of the Trust Units Exchangeable for Preference Shares(SM) ("TrUEPrS")
offered hereby (the "Offering") will represent a proportionate share of a
beneficial ownership interest in the Trust and, as described herein, upon the
occurrence of an Exchange Event (as defined herein), will be exchanged for
either (i) American Depositary Receipts ("ADRs") evidencing, for each TrUEPrS,
one American Depositary Share ("ADS") representing four fully-paid non-
cumulative preference shares, liquidation preference US$6.25 per share (the
"ANZ Preference Shares"), issued by Australia and New Zealand Banking Group
Limited ("ANZ") or (ii) cash in an amount of US$25 per TrUEPrS, plus the
accrued dividend distributions thereon for the current quarterly dividend
period. Each TrUEPrS will be sold at an initial public offering price of US$25.
Except as described herein, holders of the TrUEPrS will receive non-cumulative
dividend distributions in an amount equal to US$ per TrUEPrS per annum,
payable quarterly in arrears in an amount equal to US$ per TrUEPrS on each
January 15, April 15, July 15, and October 15 of each year (each, a "Dividend
Payment Date"), to holders of record as of the immediately preceding January 1,
April 1, July 1 and October 1, respectively (each, a "Record Date"), except as
described herein. The first dividend distribution in respect of the period from
and including September , 1998 (the "Issue Date") to but excluding October
15, 1998 will equal US$ per TrUEPrS.
(continued on following page)
SEE "PROSPECTUS SUMMARY--RISK FACTORS," BEGINNING ON PAGE 8 OF THIS
PROSPECTUS, AND "RISK FACTORS," BEGINNING ON PAGE 19 OF THIS PROSPECTUS, FOR
CERTAIN CONSIDERATIONS RELEVANT TO AN INVESTMENT IN THE TRUEPRS.
The TrUEPrS have been approved for listing on the New York Stock Exchange
(the "NYSE"), subject to official notice of issuance. Trading of the TrUEPrS on
the NYSE is expected to commence within the 30-day period after the Issue Date.
See "Underwriting."
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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<TABLE>
<CAPTION>
PRICE TO SALES PROCEEDS TO
PUBLIC(1) LOAD(2) TRUST(3)(4)
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<S> <C> <C> <C>
Per TrUEPrS.................................. $25.00 (4) $25.00
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Total(5)..................................... $400,000,000 (4) $400,000,000
</TABLE>
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(1) Plus accrued dividend distributions, if any, from September , 1998 or, if
the purchase date is after October 15, 1998, from October 15, 1998.
(2) In view of the fact that the proceeds of the sale of the TrUEPrS will
ultimately be invested in the ANZ Preference Shares, the Trust and ANZ have
agreed to indemnify the several Underwriters against certain liabilities,
including liabilities under the Securities Act of 1933, as amended. See
"Underwriting."
(3) Before deducting estimated expenses of $630,000 payable by the Trust. See
"Management Arrangements--Estimated Expenses."
(4) In view of the fact that the proceeds of the sale of the TrUEPrS will
ultimately be invested in the ANZ Preference Shares, ANZ has agreed to pay
the Underwriters, as compensation (the "Underwriters' Compensation"), $
per TrUEPrS or $ in the aggregate (or $ in the aggregate if the
Underwriters' over-allotment option is exercised in full); provided that
such compensation for sales of more than 10,000 TrUEPrS to any single
purchaser will be $ per TrUEPrS and, to the extent such sales are made,
the actual amount of Underwriters' Compensation will be less than the
aggregate amounts specified above. See "Underwriting."
(5) The Trust has granted the Underwriters an option, exercisable for 30 days
from the date hereof, to purchase up to 2,396,000 additional TrUEPrS,
solely to cover over-allotments, if any. If all such TrUEPrS are purchased,
the total Price to Public and Proceeds to Trust will be $459,900,000. See
"Underwriting." Also, the total Price to Public and Proceeds to Trust
excludes $100,000 relating to 4,000 TrUEPrS sold to ML IBK Positions, Inc.
in accordance with the requirements of the Investment Company Act of 1940,
as amended.
----------
The TrUEPrS are offered by the several Underwriters, subject to prior sale,
when, as and if issued to and accepted by them, and subject to approval of
certain legal matters by counsel for the Underwriters and certain other
conditions. The Underwriters reserve the right to withdraw, cancel or modify
such offer and to reject orders in whole or in part. It is expected that
delivery of the TrUEPrS will be made through the facilities of The Depository
Trust Company on or about September , 1998.
- -----
(SM) Service mark of Merrill Lynch & Co., Inc.
----------
MERRILL LYNCH & CO.
MORGAN STANLEY DEAN WITTER
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY
----------
The date of this Prospectus is September , 1998.
<PAGE>
(continued from cover page)
The Trust is a newly-created Delaware business trust established for the
sole purpose of (a) issuing the TrUEPrS, (b) investing the proceeds thereof in
and holding % Mandatorily Redeemable Debt Securities due 2047 (the "Debt
Securities") issued by Carlotta (UK) Company, a special purpose unlimited
company incorporated under the laws of England and Wales, and domiciled in the
United Kingdom (the "U.K. Company"), with an aggregate principal amount equal
to such proceeds and (c) entering into the ADSs Purchase Contract between the
Trust and the Jersey Subsidiary herein referred to (the "ADSs Purchase
Contract"). The Trust's investment objective is to distribute to the holders
of TrUEPrS (a) prior to an Exchange Date (as defined herein), pro rata based
on the number of TrUEPrS outstanding the interest the Trust receives on the
Debt Securities from time to time, and (b) upon the occurrence of an Exchange
Event, (i) if the Exchange Event is anything other than a redemption or
mandatory repurchase (such mandatory repurchase being a "Buy-Back") of the ANZ
Preference Shares for cash, ADRs evidencing, for each TrUEPrS, one ADS
representing four ANZ Preference Shares and (ii) if the Exchange Event is a
redemption or Buy-Back of the ANZ Preference Shares for cash, US$25 per
TrUEPrS plus an amount equal to the accrued but unpaid interest on US$25
principal amount of the Debt Securities from and including the Interest
Payment Date immediately preceding the Exchange Date to but excluding such
Exchange Date. Prior to the Exchange Date, the ANZ Preference Shares will not
pay dividends. On and after the Exchange Date (unless the Exchange Event is
the redemption or Buy-Back of the ANZ Preference Shares for cash), each ANZ
Preference Share will accrue non-cumulative dividends at the rate of US$
per share per annum, payable quarterly in arrears in an amount equal to US$
per share on each Dividend Payment Date to holders of record as of the
immediately preceding Record Date. See "Investment Objective and Policies."
The Trust will not be managed like a typical closed-end investment company.
The Trust has adopted a fundamental policy (a) to invest 100% of its portfolio
in the Debt Securities and not to dispose of the Debt Securities during the
term of the Trust other than in connection with a mandatory redemption thereof
as a result of an Exchange Event and (b) to enter into the ADSs Purchase
Contract and not to dispose of the ADSs Purchase Contract during the term of
the Trust. For information concerning the ADSs that may be received by the
holders of TrUEPrS upon the occurrence of an Exchange Event and the ANZ
Preference Shares represented thereby, see the accompanying prospectus of ANZ.
The TrUEPrS are a suitable investment only for investors who are able to
understand the unique nature of the Trust and the economic characteristics of
the Debt Securities and the ADSs and the ANZ Preference Shares that may be
delivered in exchange for TrUEPrS upon an Exchange Event. See "Investment
Objective and Policies."
The Trust will be treated as a grantor trust for U.S. Federal income tax
purposes. In general, for U.S. Federal income tax purposes no gain or loss
should be recognized by U.S. holders of the TrUEPrS upon receipt of the ADSs
upon an exchange or dissolution of the Trust. However, U.S. holders will
recognize taxable gain or loss upon receipt of cash, if any, upon an exchange
or dissolution of the Trust. See "Taxation--Certain United States Federal
Income Tax Considerations."
Prior to the Offering there has been no public market for the TrUEPrS.
Shares of closed-end investment companies have in the past frequently traded
at a discount from their net asset values and initial public offering prices.
The risk of loss associated with this characteristic of closed-end investment
companies may be greater for investors expecting to sell shares of a closed-
end investment company soon after the completion of an initial public
offering.
This Prospectus sets forth concisely information about the Trust that a
prospective investor should know before investing and should be read and
retained for future reference.
---------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE TRUEPRS AT A
LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. FOR A DESCRIPTION
OF THESE ACTIVITIES, SEE "UNDERWRITING."
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF, OR AN INVITATION TO
PURCHASE OR SUBSCRIBE FOR, THE TRUEPRS IN THE COMMONWEALTH OF AUSTRALIA OR ANY
OF ITS STATES OR TERRITORIES. THE TRUEPRS MAY NOT BE OFFERED, SOLD OR
DELIVERED IN OR TO ANY RESIDENT OF THE COMMONWEALTH OF AUSTRALIA OR ANY OF ITS
STATES OR TERRITORIES. SEE "UNDERWRITING."
2
<PAGE>
PROSPECTUS SUMMARY
The following summary should be read in conjunction with the more detailed
information appearing elsewhere in this Prospectus. Unless otherwise indicated,
the information contained in this Prospectus assumes that the Underwriters'
over-allotment option is not exercised.
THE TRUST
ANZ Exchangeable Preferred Trust is a newly-created Delaware business trust
that will be registered as a non-diversified closed-end management investment
company under the U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act"). The term of the Trust will expire on or shortly
after the occurrence of an Exchange Event. The Trust will be treated as a
grantor trust for United States Federal income tax purposes.
THE OFFERING
The Trust is offering 16,000,000 TrUEPrS, each representing a proportionate
share of beneficial interest in the assets of the Trust, at an initial public
offering price of US$25 per TrUEPrS. The Underwriters have been granted an
option, exercisable for 30 days from the date of this Prospectus, to purchase
up to an aggregate of 2,396,000 additional TrUEPrS, solely to cover over-
allotments, if any. See "Underwriting." In accordance with the requirements of
the Investment Company Act, on September 1, 1998, the Trust issued 4,000
TrUEPrS (the "Initial TrUEPrS") to ML IBK Positions, Inc., an affiliate of
Merrill Lynch, Pierce, Fenner & Smith Incorporated, for the purchase price of
US$25 per TrUEPrS.
USE OF PROCEEDS AND COLLATERAL ARRANGEMENTS
The following transactions will take place on the Issue Date. The Trust will
use the proceeds from the sale of the TrUEPrS in the Offering and the Initial
TrUEPrS to subscribe for and purchase from the U.K. Company Debt Securities
with an aggregate principal amount equal to such proceeds. The Trust will also
enter into the ADSs Purchase Contract. The Trust, as the holder of the Debt
Securities, will be entitled to receive interest due thereon quarterly in
arrears on each Dividend Payment Date (each, an "Interest Payment Date"), at
the rate per annum of %. The Debt Securities will be issued only in bearer
form and will be denominated and pay interest in U.S. dollars. The Debt
Securities will be listed on the Luxembourg Stock Exchange and, unless redeemed
on an earlier Exchange Date, will be redeemed on October 15, 2047. The U.K.
Company will use the proceeds from the sale of the Debt Securities to purchase
at a price equal to their liquidation preference fully paid, non-dividend
paying preference shares, liquidation preference US$25 per share (the "Jersey
Preference Shares"), issued by Carlotta (Investments) Limited, a company
incorporated with limited liability under the laws of, and domiciled in,
Jersey, the Channel Islands (the "Jersey Subsidiary"). The Jersey Subsidiary
will use the proceeds from the sale of the Jersey Preference Shares to make a
payment to ANZ in consideration for the issuance of ANZ Preference Shares by
ANZ to the ADR depositary and the issuance of ADSs by the ADR depositary to the
Jersey Subsidiary equal to the aggregate liquidation preference of the ANZ
Preference Shares represented thereby. Pursuant to a security and pledge
agreement (the "ADRs Security and Pledge Agreement") to be entered into among
the Trust, the U.K. Company, the Jersey Subsidiary and The Bank of New York, as
collateral agent (the "Collateral Agent"), the Jersey Subsidiary will
irrevocably and unconditionally deposit ADRs evidencing the ADSs with the
Collateral Agent and pledge the ADRs to the holder of the Jersey Preference
Shares (initially the U.K. Company) to secure its redemption obligations under
the Jersey Preference Shares and to the Trust to secure its obligation to
deliver ADSs under the ADSs Purchase Contract. Also pursuant to the ADRs
Security and Pledge Agreement, the U.K. Company, with the consent of the Jersey
Subsidiary, will irrevocably and unconditionally assign and hypothecate its
interest in such pledge to the Trust to secure its redemption obligations under
the Debt Securities. Pursuant to a separate security and pledge agreement (the
"Jersey Preference Shares Security and Pledge Agreement" and, together with the
ADRs Security and Pledge
3
<PAGE>
Agreement, the "Security and Pledge Agreements") to be entered into among the
Trust, the U.K. Company and the Collateral Agent, the U.K. Company will
irrevocably and unconditionally deposit the Jersey Preference Shares with the
Collateral Agent and pledge the Jersey Preference Shares to secure its
obligations to the Trust under the Debt Securities. Prior to the occurrence of
an Exchange Event, ownership of the Jersey Preference Shares and the ADSs will
remain with the U.K. Company and the Jersey Subsidiary, respectively, although
pursuant to the ADRs Security and Pledge Agreement, the Jersey Subsidiary will
agree to, or will cause the Collateral Agent to, direct the ADR depositary to
vote the ANZ Preference Shares represented by the ADSs as directed by the
holders of the TrUEPrS.
On the Issue Date, ANZ will use the proceeds from the issue of the ANZ
Preference Shares to make a capital contribution to a business trust
established under the laws of the State of Delaware (the "Distribution Trust").
The Distribution Trust will use ANZ's capital contribution to make one or more
loans (each, an "ANZ Loan") to ANZ and/or one or more wholly-owned subsidiaries
or branches of ANZ (each, an "ANZ Borrower").
Reference is made to page 11 for a diagram of the foregoing transactions.
ANZ
Reference is made to the accompanying prospectus of ANZ with respect to the
ANZ Preference Shares represented by the ADSs that may be received by a holder
of TrUEPrS upon the occurrence of an Exchange Event. THE PROSPECTUS OF ANZ IS
BEING ATTACHED HERETO AND DELIVERED TO PROSPECTIVE PURCHASERS OF TRUEPRS
TOGETHER WITH THIS PROSPECTUS FOR CONVENIENCE OF REFERENCE ONLY. THE PROSPECTUS
OF ANZ DOES NOT CONSTITUTE A PART OF THIS PROSPECTUS, NOR IS IT INCORPORATED BY
REFERENCE HEREIN.
INVESTMENT OBJECTIVE AND POLICIES; DIVIDENDS AND DISTRIBUTIONS
The Trust's investment objective is to distribute to the holders of TrUEPrS
(a) prior to an Exchange Date, pro rata based on the number of TrUEPrS
outstanding, the interest the Trust receives on the Debt Securities from time
to time, and (b) upon the occurrence of an Exchange Event, (i) if the Exchange
Event is anything other than a redemption or Buy-Back of the ANZ Preference
Shares for cash, ADRs evidencing, for each TrUEPrS, one ADS and (ii) if the
Exchange Event is a redemption or Buy-Back of the ANZ Preference Shares for
cash, US$25 per TrUEPrS plus an amount equal to the accrued but unpaid interest
on each US$25 principal amount of the Debt Securities from and including the
Interest Payment Date immediately preceding the Exchange Date to but excluding
such Exchange Date. See "Investment Objective and Policies."
Except as described herein, holders of TrUEPrS will receive non-cumulative
dividend distributions in an amount equal to US$ per TrUEPrS per annum,
payable quarterly in arrears in an amount equal to US$ per TrUEPrS on each
Dividend Payment Date to holders of record on the immediately preceding Record
Date. The first distribution in respect of the period from and including the
Issue Date to but excluding October 15, 1998 will equal US$ per TrUEPrS. See
"Investment Objective and Policies--Trust Assets."
Dividend payments on the TrUEPrS will be made from the interest payments
received by the Trust on the Debt Securities. Interest payments on the Debt
Securities will be made by the U.K. Company to the extent that it receives
payments (the "Income Entitlements") as the income beneficiary of the
Distribution Trust. The U.K. Company's right to receive Income Entitlements
will not represent an absolute ownership interest in the Distribution Trust or
the income thereof, but rather an entitlement to receive Income Entitlements
only to the extent actually distributed to the U.K. Company by the Distribution
Trust; if any Income Entitlement payable on any Interest Payment Date is not
paid to the U.K. Company on such date for any reason, the Distribution Trust
will have no obligation to pay such Income Entitlement to the U.K. Company and
the U.K. Company will have no right to require such payment. In the event an
Income Entitlement is not paid to the U.K. Company for any reason, an Exchange
Event will occur because the U.K. Company will have insufficient funds to pay
interest due on the Debt Securities.
On and after an Exchange Date, the U.K. Company will cease to be the income
beneficiary of the Distribution Trust and an affiliate of ANZ will receive all
the Income Entitlements of the Distribution Trust thereafter; provided,
however, if the Exchange Event is the cash redemption or Buy-Back of the ANZ
Preference
4
<PAGE>
Shares, the U.K. Company will be entitled to receive an Income Entitlement
equal to the accrued but unpaid interest on the Debt Securities for the period
from and including the Interest Payment Date immediately preceding the Exchange
Date to but excluding the Exchange Date.
Under the terms of the Distribution Trust, other than in connection with a
cash redemption or Buy-Back of ANZ Preference Shares, no Income Entitlement
shall be paid or payable to the U.K. Company on any Interest Payment Date if
(i) an Exchange Event has occurred on or prior to such Interest Payment Date,
(ii) the amount of Income Entitlement payable on such date, together with the
aggregate amount of dividends paid on or before such date during the then
current fiscal year of ANZ on any preference shares or ordinary shares of ANZ,
would exceed ANZ's earnings during the prior fiscal year or (iii) the payment
of such Income Entitlement would be prohibited or limited by applicable law,
regulation or order or by any instrument or agreement to which ANZ is subject
(collectively, the "Payment Prohibitions").
On each Interest Payment Date, (i) the ANZ Borrower will make an interest
payment on the ANZ Loan to the Distribution Trust; (ii) if no Payment
Prohibition exists, the Distribution Trust will distribute such interest
payment as an Income Entitlement to the U.K. Company; and (iii) the U.K.
Company will use the proceeds from any such distribution of an Income
Entitlement to pay (a) interest on the Debt Securities to the Trust, (b)
ongoing costs and expenses of the U.K. Company and the Jersey Subsidiary, (c)
quarterly dividend payments on the U.K. Company's voting shares to the Jersey
Holding Company (as defined herein), which dividends will be used by the Jersey
Holding Company to pay ongoing expenses of the Jersey Holding Company, the
Jersey Charitable Trust, the Collateral Agent and (pursuant to an expense
agreement (the "Trust Expense Agreement") between the Jersey Holding Company
and The Bank of New York, as the Administrator, Custodian and Paying Agent of
the Trust) the Trust, and (d) an indemnity fee payable to ANZMB Limited, an
affiliate of ANZ (the "ANZ Affiliate"). On each Interest Payment Date (which
will also be a Dividend Payment Date), The Bank of New York, as Administrator,
will use all the interest received by the Trust on the Debt Securities to pay
dividend distributions on the TrUEPrS.
TRUST ASSETS
Prior to the Exchange Date, the Trust's assets will consist of (a)
US$400,100,000 aggregate principal amount of Debt Securities (US$460,000,000
aggregate principal amount of Debt Securities if the Underwriters' over-
allotment option is exercised in full), and any distributions thereon, and (b)
the ADSs Purchase Contract. See "Investment Objective and Policies--Trust
Assets."
EXCHANGE EVENT
The earliest occurrence of any of the following dates or events shall
constitute an "Exchange Event" as of the "Exchange Date" applicable to such
Exchange Event as specified below:
(i) October 15, 2047 or the date of any earlier redemption or Buy-Back of
the ANZ Preference Shares for cash (see "Investment Objective and
Policies--Exchange Event"), in which case the Exchange Date will be the
earlier of such dates;
(ii) any date selected by ANZ in its absolute discretion, in which case
the Exchange Date will be such date;
(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 Tier 1 Capital Ratio or the Total Capital
Adequacy Ratio of ANZ (either as reported quarterly by ANZ to the
Australian Prudential Regulation Authority or any successor or
5
<PAGE>
replacement body ("APRA") or as determined at any time by APRA in its
absolute discretion) is below 4% or 8%, respectively or, in each case, such
lesser percentage as may be prescribed by APRA for ANZ at the time (the
applicable percentage in each such case being the "Required Percentage"),
and is not increased by ANZ to at least the Required Percentage, within 90
days after the date on which ANZ makes such quarterly report or receives
notice from APRA of such determination by APRA, as applicable, 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 (as specified in the constituent
documents) of the Distribution Trust, in which case the Exchange Date will
be the date on which the change occurs;
(vii) the common securities of the Distribution Trust cease to be wholly-
owned, directly or indirectly, by ANZ or a directly or indirectly wholly-
owned subsidiary or branch of ANZ, in which case the Exchange Date will be
the date on which the common securities of the Distribution Trust cease to
be wholly-owned, directly or indirectly, by ANZ or a direct or indirect
wholly-owned subsidiary or branch of ANZ;
(viii) any ANZ Borrower ceases to be ANZ or a direct or indirect wholly-
owned subsidiary or branch of ANZ, in which case the Exchange Date will be
the date on which such ANZ Borrower ceases to be ANZ or a direct or
indirect wholly-owned subsidiary or branch of ANZ;
(ix) (A) a proceeding is commenced by ANZ, the U.K. Company, the Jersey
Holding Company, the Jersey Charitable Trust, the Jersey Subsidiary, the
Distribution Trust or any ANZ Borrower (each, a "Relevant Entity") or a
person that controls the Relevant Entity for an order that the Relevant
Entity be wound up 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 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 (as defined herein)
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
(x) 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 ANZ 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.
6
<PAGE>
Notwithstanding the foregoing, any ANZ Borrower may, with the consent of the
Distribution Trust, assign its ANZ Loan or the Distribution Trust may replace
any ANZ Loan with another loan, in each case, to ANZ or to one or more direct
or indirect wholly-owned subsidiaries or branches of ANZ with prospective
payment terms identical to, and other terms substantially the same as, those of
such ANZ Loan, in which case ANZ or such other subsidiary or branch and loan
will be deemed to be such ANZ Borrower and such ANZ Loan, respectively, and any
such action will not constitute an Exchange Event.
Upon the occurrence of an Exchange Event, each holder of a TrUEPrS will be
entitled to receive a distribution of either (i) if the Exchange Event is
anything other than a redemption or Buy-Back of the ANZ Preference Shares for
cash, one ADS per TrUEPrS or (ii) if the Exchange Event is a redemption or Buy-
Back of the ANZ Preference Shares for cash, US$25 per TrUEPrS plus an amount
equal to the accrued but unpaid interest on US$25 principal amount of the Debt
Securities from and including the Interest Payment Date immediately preceding
the Exchange Date to but excluding such Exchange Date. In the case of any such
distribution of ADSs, the holders of TrUEPrS shall become the record holders of
the ADSs as of the opening of business on the Exchange Date, and ADRs
evidencing such ADSs will be delivered to such holders as soon as practicable
on or after the Exchange Date.
Dividend distributions on the TrUEPrS will cease to accrue on and after the
Exchange Date. In the case of any Exchange Event other than a redemption or
Buy-Back of the ANZ Preference Shares for cash, no dividend distributions will
be payable on the TrUEPrS on the Exchange Date (even if such Exchange Date is a
Dividend Payment Date). Instead, non-cumulative dividends will begin to accrue
on the ANZ Preference Shares from and including the last Interest Payment Date
in respect of which interest on the Debt Securities has been paid or provided
for in full. Accordingly, the dividends for any quarterly dividend period
ending on or after the Exchange Date will be payable as dividends on the ANZ
Preference Shares and in accordance with the terms of the ANZ Preference
Shares.
TERM OF THE TRUST
The Trust will dissolve as soon as practicable after the exchange of the
TrUEPrS for ADSs or cash, as the case may be, upon the occurrence of an
Exchange Event. See "Investment Objective and Policies--Trust Dissolution" and
"Risk Factors--Limited Term."
CERTAIN TAX CONSIDERATIONS
United States
The Trust will be classified as a grantor trust for United States Federal
income tax purposes and the Debt Securities held by the Trust will be treated
as equity in ANZ. Accordingly, each holder will be treated for United States
Federal income tax purposes as owning equity of ANZ and will be required to
include in income, as dividends, the holder's pro rata share of the gross
amount of the interest paid on the Debt Securities to the extent of the current
and accumulated earnings and profits (as determined for United States Federal
income tax purposes) of ANZ.
A holder's exchange of TrUEPrS for ADSs upon the occurrence of an Exchange
Event generally will not constitute a taxable event for United States Federal
income tax purposes. However, the receipt of cash upon exchange of the TrUEPrS
in connection with the redemption or Buy-Back of the ANZ Preference Shares for
cash would constitute a taxable event for United States Federal income tax
purposes, and a holder of TrUEPrS generally would be required to recognize gain
or loss in respect of TrUEPrS exchanged for cash. See "Taxation--Certain United
States Federal Income Tax Considerations."
7
<PAGE>
Australia
The Trust would not be treated as a resident of Australia for Australian
income tax purposes. As it is not in receipt of Australian source income it
will not be subject to Australian tax on income earned. Therefore, quarterly
distributions by the Trust to non-Australian resident holders of TrUEPrS will
not be subject to Australian tax whether by withholding or otherwise.
There should be no Australian tax consequences to the Trust of the delivery
of the ADSs to holders of TrUEPrS upon the occurrence of an Exchange Event. The
sale of TrUEPrS or the ANZ Preference Shares represented by the ADSs may
generate assessable income to certain U.S. holders. The sale of TrUEPrS or ADSs
by a U.S. holder may be subject to Australian capital gains tax where a U.S.
holder is a non-Australian resident but the U.S. holder and the U.S. holder's
associates together beneficially hold or at any time during the five years
preceding such sale held shares or interests in shares representing 10% or more
in value of the issued capital of an Australian listed company, such as ANZ.
Subject to certain conditions, the terms of the ANZ Preference Shares provide
for holders to be grossed-up for Australian withholding tax on payments paid on
the ANZ Preference Shares being dividends or amounts deemed to be dividends for
Australian tax purposes. See "Taxation--Certain Australian Tax Considerations."
MANAGEMENT ARRANGEMENTS
The Trust will be internally managed and will not have an investment adviser.
Prior to the Exchange Date, the Trust's portfolio will consist only of (a)
US$400,100,000 aggregate principal amount of Debt Securities (US$460,000,000
aggregate principal amount of Debt Securities if the Underwriters' over-
allotment option is exercised in full), and any distributions thereon, and (b)
the ADSs Purchase Contract. The Trust's portfolio will not be actively managed.
The activities of the Trust will be limited so as to ensure that the Trust will
qualify as a grantor trust for United States Federal income tax purposes. The
administration of the Trust will be overseen by the trustees (the "Trustees")
thereof. The day-to-day administration of the Trust will be carried out by The
Bank of New York (or its successor), as the Administrator. The Bank of New York
(or its successor) will also act as custodian (the "Custodian") for the Trust's
assets and as paying agent, transfer agent and registrar (the "Paying Agent")
with respect to the TrUEPrS. Except as aforesaid, and except for The Bank of
New York's role as Collateral Agent and securities intermediary under the
Security and Pledge Agreements, as paying and transfer agent for the Debt
Securities and the ANZ Preference Shares and as depositary for the ADRs, The
Bank of New York will have no other affiliation with, and will not be engaged
in any other transaction with, the Trust. For their services, the fees of the
Administrator, the Custodian, the Trustees and the Paying Agent will be paid by
the Jersey Holding Company pursuant to the Trust Expense Agreement. See
"Management Arrangements."
RISK FACTORS
The Trust has adopted a fundamental policy (a) to invest 100% of its
portfolio in the Debt Securities, and the distributions thereon, and not to
dispose of the Debt Securities during the term of the Trust other than in
connection with a mandatory redemption thereof as a result of an Exchange
Event, and (b) to enter into the ADSs Purchase Contract and not to dispose of
the ADSs Purchase Contract during the term of the Trust. The Trust will not be
managed like a typical closed-end investment company.
The Trust is classified as a "non-diversified" investment company under the
Investment Company Act. Consequently, the Trust is not limited by the
Investment Company Act in the proportion of its assets that may be invested in
the securities of a single issuer. Since the only securities held by the Trust
prior to the Exchange Date will be the Debt Securities, the Trust may be
subject to greater risk than would be the case for an investment company with
more diversified investments.
8
<PAGE>
The TrUEPrS have no trading history and it is not possible to predict how
they will trade in the secondary market. The Underwriters currently intend, but
are not obligated, to make a market in the TrUEPrS. There can be no assurance
that a secondary market will develop or, if a secondary market does develop,
that it will provide the holders of the TrUEPrS with liquidity of investment or
that it will continue for the life of the TrUEPrS.
The Trust is a newly organized closed-end investment company with no previous
operating history. Shares of closed-end investment companies frequently trade
at a discount from their net asset value, which is a risk separate and distinct
from the risk that the Trust's net asset value will decrease. The risk of loss
associated with this characteristic of closed-end investment companies may be
greater for investors expecting to sell shares of a closed-end investment
company soon after the completion of an initial public offering.
Except as described below, holders of the TrUEPrS will not be entitled to any
rights with respect to the ANZ Preference Shares (including, without
limitation, rights to receive any dividends or other distributions in respect
thereof) until such time, if any, as the Trust shall have delivered ADSs
representing the ANZ Preference Shares in exchange for TrUEPrS upon the
occurrence of an Exchange Event (which will not occur if the Exchange Event is
the redemption or Buy-Back of the ANZ Preference Shares for cash). Pursuant to
the ADRs Security and Pledge Agreement and the ADR deposit agreement, each
TrUEPrS will entitle the holder thereof to direct the exercise of the voting
rights attaching to four ANZ Preference Shares represented by one ADS. The
holders of the ANZ Preference Shares will be entitled to vote together with the
holders of ordinary shares of ANZ on the basis of one vote per ANZ Preference
Share on any poll (a) in all cases with respect to certain matters specified
herein and (b) during a Special Voting Period (as defined herein), with respect
to all matters on which the holders of the ordinary shares of ANZ are entitled
to vote. A "Special Voting Period" is the period from and including (i) any
Dividend Payment Date on which ANZ fails to pay in full the dividends accrued
in respect of the quarterly dividend period then ended or (ii) the fourth
Business Day after any Exchange Date occurring as a result of any failure by
the Trust to receive in full the interest payable on the Debt Securities
unless, prior to such date, ANZ has paid in full an optional dividend on the
ANZ Preference Shares in an aggregate amount equal to the amount of interest
not so received (an "Optional Dividend"), in each case to but excluding the
first Dividend Payment Date thereafter as of which ANZ has paid in full four
consecutive quarterly dividends on the ANZ Preference Shares. In addition, the
holders of the ANZ Preference Shares will have the right to vote separately as
a class in certain circumstances involving a variation of the rights of holders
of the ANZ Preference Shares. Pursuant to the ADRs Security and Pledge
Agreement, as long as the ADSs are owned by the Jersey Subsidiary, the Jersey
Subsidiary will, or will cause the Collateral Agent to, direct the ADR
depositary to vote the ANZ Preference Shares represented by the ADSs as
directed by the holders of TrUEPrS. See "Risk Factors."
LISTING
The TrUEPrS have been approved for listing on the NYSE, subject to official
notice of issuance. Trading of the TrUEPrS on the NYSE is expected to commence
within the 30-day period after the Issue Date.
9
<PAGE>
FEE TABLE
<TABLE>
<S> <C>
SHAREHOLDER TRANSACTION EXPENSES
Maximum Sales Load (as a percentage of offering price)......... 0%(a)
Automatic Dividend Reinvestment Plan Fees...................... Not Applicable
ANNUAL EXPENSES (as a percentage of net assets)
Management Fees(b)............................................. 0%
Other Expenses(c).............................................. 0%
--------------
Total Annual Expenses(c)..................................... 0%
==============
</TABLE>
<TABLE>
<CAPTION>
1 YEAR 3 YEARS
------ -------
<S> <C> <C>
EXAMPLE
An investor would pay the following expenses on a $1,000
investment, including the maximum sales load of $0 and assuming
(1) no annual expenses and (2) a 5% annual return throughout
the periods.................................................... $ 0 $ 0
</TABLE>
- --------
(a) There is no sales load because, in view of the fact that the proceeds of
the sale of the TrUEPrS will ultimately be invested in the ANZ Preference
Shares, ANZ has agreed to pay the Underwriters' compensation. See the cover
page of this Prospectus and "Underwriting."
(b) See "Management Arrangements." The Trust will be internally managed;
consequently there will be no separate investment advisory fee paid by the
Trust. The Bank of New York will act as the Administrator of the Trust.
(c) The organization costs of the Trust in the amount of $32,000 and the costs
associated with the initial registration and the Offering, estimated to be
approximately $598,000, will be paid by the Trust out of the facility fee
to be paid on the Issue Date to the Trust by the U.K. Company in connection
with the investment by the Trust in the Debt Securities. The ongoing
administrative and other expenses of the Trust will be paid by the Jersey
Holding Company pursuant to the Trust Expense Agreement. Subject to the
satisfaction of certain conditions, expenses of the Trust not paid by the
Trust's arrangements with the Jersey Holding Company under the Trust
Expense Agreement will be paid by the ANZ Affiliate pursuant to an expense
and indemnity agreement among it, the U.K. Company, the Trust, the Jersey
Holding Company, the Jersey Subsidiary and the Jersey Charitable Trust. See
"Management Arrangements--Estimated Expenses." Absent such arrangements,
the Trust's "Other Expenses" and "Total Annual Expenses" are estimated to
initially be $310,000 in the aggregate or 0.078% of the Trust's net assets.
The foregoing Fee Table is intended to assist investors in understanding the
costs and expenses that a holder of TrUEPrS will bear directly or indirectly.
The Example set forth above utilizes a 5% annual rate of return as mandated by
Securities and Exchange Commission regulations. THE EXAMPLE SHOULD NOT BE
CONSIDERED A REPRESENTATION OF FUTURE EXPENSES OR ANNUAL RATES OF RETURN, AND
ACTUAL EXPENSES OR ANNUAL RATES OF RETURN MAY BE MORE OR LESS THAN THOSE
ASSUMED FOR PURPOSES OF THE EXAMPLE.
10
<PAGE>
[a STRUCTURAL DIAGRAM of transaction parties, intervening vehicles
and payment obligations appears here on the printed material]
11
<PAGE>
THE TRUST
ANZ Exchangeable Preferred Trust (the "Trust") is a newly-created Delaware
business trust and will be registered as a closed-end management investment
company under the U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act"). The Trust was formed on July 6, 1998 pursuant to a
Certificate of Trust as filed with the Secretary of State of the State of
Delaware on July 8, 1998 and as restated and filed on September 1, 1998 and a
Trust Agreement dated as of such date, which was amended and restated (as
amended and restated, the "Declaration of Trust"). The term of the Trust will
expire as soon as possible after the exchange of the TrUEPrS for ADSs or cash,
as the case may be, upon the occurrence of an Exchange Event. The Trust will
be treated as a grantor trust for United States Federal income tax purposes.
The Trust's principal office is located at 850 Library Avenue, Suite 204,
Newark, Delaware 19715, and its telephone number is (302) 738-6680.
USE OF PROCEEDS AND COLLATERAL ARRANGEMENTS
The proceeds of the Offering (without giving effect to the expenses of the
Offering payable by the Trust) and the 4,000 TrUEPrS (the "Initial TrUEPrS")
issued by the Trust to ML IBK Positions, Inc. will be $400,100,000 (or
$460,000,000 if the Underwriters' over-allotment option is exercised in full).
On the Issue Date (as defined herein), the proceeds of the Offering and the
proceeds from the sale of the Initial TrUEPrS will be used to purchase
US$400,100,000 aggregate principal amount (or US$460,000,000 aggregate
principal amount if the Underwriters' over-allotment option is exercised in
full) of % Mandatorily Redeemable Debt Securities due 2047 (the "Debt
Securities") from Carlotta (UK) Company, a special purpose unlimited company
incorporated under the laws of England and Wales, and domiciled in, the United
Kingdom (the "U.K. Company"). The Trust, as the holder of the Debt Securities,
will be entitled to receive interest thereon at the rate per annum of %,
payable quarterly in arrears on each Dividend Payment Date (each, an "Interest
Payment Date"). The Debt Securities will be listed on the Luxembourg Stock
Exchange and, unless redeemed on an earlier Exchange Date (as defined herein),
will be redeemed on October 15, 2047. The Debt Securities will be issued only
in bearer form and will be denominated and pay interest in U.S. dollars. See
"Investment Objective and Policies--Trust Assets."
The following transactions will take place on the Issue Date. Reference is
made to page 11 for a diagram of the transactions.
The U.K. Company will use the proceeds from the sale of the Debt Securities
to purchase at a price equal to their liquidation preference fully paid, non-
dividend paying preference shares, liquidation preference US$25 per share (the
"Jersey Preference Shares"), issued by Carlotta (Investments) Limited, a
company incorporated with limited liability under the laws of, and domiciled
in, Jersey, the Channel Islands (the "Jersey Subsidiary"). The Jersey
Subsidiary will use the proceeds from the sale of the Jersey Preference Shares
to make a payment to Australia and New Zealand Banking Group Limited ("ANZ")
in consideration for the issuance by the ADR (as defined herein) depositary to
the Jersey Subsidiary of American Depositary Shares ("ADSs"), each
representing four fully paid non-cumulative preference shares, liquidation
preference US$6.25 per share (the "ANZ Preference Shares"), of ANZ, at a price
per ADS equal to US$25 (i.e., the aggregate liquidation preference of the four
ANZ Preference Shares represented thereby). No dividends will accrue or be
paid on the ANZ Preference Shares represented by the ADSs unless an Exchange
Event (other than a redemption or mandatory repurchase (such mandatory
repurchase being a "Buy-Back") of the ANZ Preference Shares) occurs. On and
after such an Exchange Date, non-cumulative dividends will be payable, if and
when declared by the board of directors of ANZ out of profits legally
available therefor, in U.S. dollars in an amount equal to US$ per ANZ
Preference Share per annum, payable quarterly in arrears in an amount equal to
US$ per ANZ Preference Share on each Dividend Payment Date (as defined
herein) to holders of record as of the immediately preceding Record Date (as
defined herein).
ANZ will use the proceeds from the issue of the ANZ Preference Shares to
make a capital contribution to a business trust established under the laws of
the State of Delaware (the "Distribution Trust"). The Distribution Trust will
use ANZ's capital contribution to make one or more loans (each, an "ANZ Loan")
to ANZ and/or one or more wholly-owned subsidiaries or branches of ANZ (each,
an "ANZ Borrower").
12
<PAGE>
The American Depositary Receipts ("ADRs") evidencing the ADSs will be
deposited with The Bank of New York, as the collateral agent (the "Collateral
Agent"), pursuant to a security and pledge agreement (the "ADRs Security and
Pledge Agreement") to be entered into among the Trust, the U.K. Company, the
Jersey Subsidiary and the Collateral Agent. Pursuant to the terms of the ADRs
Security and Pledge Agreement, the Jersey Subsidiary will irrevocably and
unconditionally deposit the ADRs evidencing the ADSs with the Collateral Agent
and (i) the Jersey Subsidiary will irrevocably and unconditionally pledge its
interest in the ADRs to the holder of the Jersey Preference Shares (initially
the U.K. Company) to secure its redemption obligations under the Jersey
Preference Shares and to the Trust to secure its obligation to deliver ADSs
under the ADSs Purchase Contract, (ii) the U.K. Company, with the consent of
the Jersey Subsidiary, will irrevocably and unconditionally assign and
hypothecate to the Trust its interest in such pledge to secure its redemption
obligations under the Debt Securities and (iii) the Jersey Subsidiary and the
U.K. Company will irrevocably and unconditionally direct the Collateral Agent,
upon the occurrence of an Exchange Event (other than a redemption or Buy-Back
of the ANZ Preference Shares for cash), to transfer the ADRs to the Trust.
Pursuant to a separate security and pledge agreement (the "Jersey Preference
Shares Security and Pledge Agreement" and, together with the ADRs Security and
Pledge Agreement, the "Security and Pledge Agreements") to be entered into
among the Trust, the U.K. Company and the Collateral Agent, the U.K. Company
will irrevocably and unconditionally deposit the Jersey Preference Shares with
the Collateral Agent and pledge the Jersey Preference Shares to secure its
redemption obligations to the Trust under the Debt Securities. Prior to the
occurrence of an Exchange Event, ownership of the Jersey Preference Shares and
the ADSs will remain with the U.K. Company and the Jersey Subsidiary,
respectively, although pursuant to the ADRs Security and Pledge Agreement, the
Jersey Subsidiary will agree to, or will cause the Collateral Agent to, direct
the ADR depositary to vote the ANZ Preference Shares represented by the ADSs
as directed by the holders of the TrUEPrS. Each TrUEPrS will entitle the
holder to direct the exercise of the voting rights attaching to one ADS and
the four ANZ Preference Shares represented thereby.
The Trust will also enter into the ADSs Purchase Contract between the Trust
and the Jersey Subsidiary (the "ADSs Purchase Contract") pursuant to which the
Jersey Subsidiary will deliver the ADSs to the Trust for distribution to the
holders of TrUEPrS after the occurrence of an Exchange Event (other than a
redemption or Buy-Back of the ANZ Preference Shares for cash) and the
redemption of the Debt Securities and the Jersey Preference Shares.
The Debt Securities, the Jersey Preference Shares (if applicable), the ADSs
Purchase Contract and (if applicable) the ADSs to be purchased pursuant to the
terms of the ADSs Purchase Contract will be held by the Custodian for the
Trust.
INVESTMENT OBJECTIVE AND POLICIES
GENERAL
The Trust will invest the proceeds of the Offering in the Debt Securities
issued by the U.K. Company. The Trust's investment objective is to distribute
to the holders of TrUEPrS (a) prior to an Exchange Event, pro rata based on
the number of TrUEPrS outstanding the interest the Trust receives on the Debt
Securities from time to time, and (b) upon the occurrence of an Exchange
Event, (i) if the Exchange Event is anything other than a redemption or
mandatory repurchase ("Buy-Back") of the ANZ Preference Shares for cash, ADRs
evidencing, for each TrUEPrS, one ADS representing four ANZ Preference Shares,
and (ii) if the Exchange Event is a redemption or Buy-Back of the ANZ
Preference Shares for cash, US$25 per TrUEPrS plus an amount equal to the
accrued but unpaid interest on each US$25 principal amount of the Debt
Securities from and including the Interest Payment Date immediately preceding
the Exchange Date to but excluding such Exchange Date. Upon the occurrence of
an Exchange Event, the ANZ Preference Shares will accrue non-cumulative
dividends at the rate of US$ per share per annum, payable quarterly in
arrears in an amount equal to US$ per share on each Dividend Payment Date
to holders of record as of the immediately preceding Record Date. Upon the
occurrence of an Exchange Event, the Administrator will notify The Depository
Trust Company (the "Depository") and publish a notice in The Wall Street
Journal or another daily newspaper of national circulation stating whether
ADSs or cash will be delivered in exchange for the TrUEPrS.
The Trust has adopted a fundamental policy as required by the Declaration of
Trust (a) to invest 100% of its portfolio in the Debt Securities, and any
distributions thereon, and not to dispose of the Debt Securities during
13
<PAGE>
the term of the Trust other than in connection with a mandatory redemption
thereof as a result of an Exchange Event and (b) to enter into the ADSs
Purchase Contract and not to dispose of the ADSs Purchase Contract during the
term of the Trust. The foregoing fundamental policy of the Trust may not be
changed without the vote of 100% of the holders of the TrUEPrS.
TRUST ASSETS
Prior to an Exchange Date, the Trust's assets will consist of (a)
US$400,100,000 aggregate principal amount of Debt Securities (US$460,000,000
aggregate principal amount of Debt Securities if the Underwriters' over-
allotment option is exercised in full), and any distributions thereon, and (b)
the ADSs Purchase Contract.
As described above under "--General," upon the occurrence of an Exchange
Event, each TrUEPrS will be exchanged for either (i) one ADS or (ii) US$25 in
cash plus the accrued dividend distribution thereon for the current quarterly
dividend period. The procedure by which the Trust will obtain the ADSs or cash
to be distributed to the holders of TrUEPrS will vary depending upon the nature
of the Exchange Event and, in the case of an Exchange Event resulting from a
redemption or Buy-Back of the ANZ Preference Shares for cash, the value, for
purposes of calculating United Kingdom tax on capital gains, of one U.S. dollar
or the equivalent thereof in any successor legal currency of the United States
in terms of British pounds or the equivalent thereof in any successor legal
currency of the United Kingdom (the "Dollar Value") on the Exchange Date
(expressed as (Pounds)/US$).
In the case of any Exchange Event other than a redemption or Buy-Back of the
ANZ Preference Shares for cash, the Trust will obtain the ADSs to be
distributed to holders of TrUEPrS as a result of the following sequence of
events: (i) the U.K. Company will redeem the Debt Securities for cash at their
aggregate principal amount, (ii) under the terms of the Debt Securities, the
cash proceeds from the redemption referred to in clause (i) above will
automatically be applied to effect the purchase by the Trust of the Jersey
Preference Shares from the U.K. Company, (iii) the Jersey Subsidiary will
redeem the Jersey Preference Shares for cash at their aggregate liquidation
preference, and (iv) under the terms of the ADSs Purchase Contract, the cash
redemption proceeds of the Jersey Preference Shares will be used by the Trust
to purchase the ADSs from the Jersey Subsidiary.
In the case of an Exchange Event resulting from a redemption or Buy-Back of
the ANZ Preference Shares for cash, the Trust will obtain the cash to be
distributed to the holders of TrUEPrs as a result of one of the two sequences
described below, depending on the Dollar Value on the Exchange Date.
If the Dollar Value on the Exchange Date is higher than the Dollar Value on
any date on which the ANZ Preference Shares are originally issued (i.e., if the
British pound has depreciated against the U.S. dollar between such dates), then
the sequence of events preceding the distribution of cash to holders of TrUEPrS
will be as follows: (i) the U.K. Company will redeem the Debt Securities for
cash at their aggregate principal amount plus accrued interest from and
including the Interest Payment Date immediately preceding the Exchange Date to
but excluding the Exchange Date, (ii) under the terms of the Debt Securities,
the cash proceeds from the redemption referred to in clause (i) above
(excluding the accrued interest portion thereof) will automatically be applied
to effect the purchase by the Trust of the Jersey Preference Shares from the
U.K. Company, (iii) there will be a redemption or Buy-Back of the ANZ
Preference Shares for cash in an amount equal to their aggregate liquidation
preference, and (iv) the Jersey Subsidiary will use the cash proceeds from the
redemption or Buy-Back referred to in clause (iii) above to redeem the Jersey
Preference Shares for cash at their aggregate liquidation preference.
If the Dollar Value on the Exchange Date is equal to or less than the Dollar
Value on any date on which the ANZ Preference Shares are originally issued
(i.e., if the British pound has remained the same or appreciated against the
U.S. dollar between such dates), then the sequence of events preceding the
distribution of cash to holders of TrUEPrS will be as follows: (i) there will
be a redemption or Buy-Back of the ANZ Preference Shares for cash in an amount
equal to their aggregate liquidation preference, (ii) the Jersey Subsidiary
will use the cash proceeds from the redemption or Buy-Back referred to in
clause (i) above to redeem the Jersey Preference Shares for cash at their
aggregate liquidation preference, and (iii) the U.K. Company will use the
proceeds from the redemption of the Jersey Preference Shares referred to in
clause (i) above and the Income Entitlement it receives on the Exchange Date to
redeem the Debt Securities for cash at their aggregate principal amount plus
accrued interest from and including the Interest Payment Date immediately
preceding the Exchange Date to but excluding such Exchange Date.
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Except as described herein, holders of the TrUEPrS will receive non-
cumulative dividend distributions in an amount equal to US$ per TrUEPrS per
annum, payable quarterly in arrears in an amount equal to US$ per TrUEPrS
on each January 15, April 15, July 15 and October 15 of each year (each, a
"Dividend Payment Date"), to holders of record as of the immediately preceding
January 1, April 1, July 1 and October 1 (each, a "Record Date"),
respectively. The first dividend distribution in respect of the period from
and including the September , 1998 (the "Issue Date") to but excluding
October 15, 1998 will equal US$ per TrUEPrS. The Record Date for such first
dividend distribution will be October 1 or, with respect to TrUEPrS issued
after October 1 and before October 15, the date of issuance thereof. See
"Dividends and Distributions."
In the event that any Dividend Payment Date for the TrUEPrS or Interest
Payment Date for the Debt Securities is not a Business Day, then the dividend
or interest payable on such date need not be made on such Dividend Payment
Date or Interest Payment Date, as applicable, but instead may be made on the
next succeeding Business Day with the same force and effect as if made on such
Dividend Payment Date or Interest Payment Date, as the case may be. As used
herein, "Business Day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in Sydney, Australia,
New York, New York or any city or cities in which the principal place of
business of any ANZ Borrower is located from time to time (initially
Wellington, New Zealand) are authorized or obliged by law or executive order
to close.
ANZ
THIS PROSPECTUS RELATES ONLY TO THE TrUEPrS OFFERED HEREBY AND DOES NOT
RELATE TO ANZ, THE ADSs OR THE ANZ PREFERENCE SHARES. ANZ HAS FILED A
REGISTRATION STATEMENT ON FORM F-3 WITH THE SECURITIES AND EXCHANGE COMMISSION
(THE "COMMISSION") WITH RESPECT TO THE ANZ PREFERENCE SHARES AND A
REGISTRATION STATEMENT ON FORM F-6 WITH RESPECT TO THE ADSs THAT MAY BE
RECEIVED BY A HOLDER OF TrUEPrS UPON THE OCCURRENCE OF AN EXCHANGE EVENT. THE
PROSPECTUS OF ANZ CONSTITUTING A PART OF SUCH REGISTRATION STATEMENT ON FORM
F-3 INCLUDES INFORMATION RELATING TO ANZ, THE ADSs AND THE ANZ PREFERENCE
SHARES. THE PROSPECTUS OF ANZ IS BEING ATTACHED HERETO AND DELIVERED TO
PROSPECTIVE PURCHASERS OF TrUEPrS TOGETHER WITH THIS PROSPECTUS FOR
CONVENIENCE OF REFERENCE ONLY. THE PROSPECTUS OF ANZ DOES NOT CONSTITUTE A
PART OF THIS PROSPECTUS, NOR IS IT INCORPORATED BY REFERENCE HEREIN.
EXCHANGE EVENT
The earliest occurrence of any of the following dates or events shall
constitute an "Exchange Event" as of the "Exchange Date" applicable to such
Exchange Event as specified below:
(i) October 15, 2047 or the date of any earlier redemption or Buy-Back of
the ANZ Preference Shares for cash, in which case the Exchange Date will be
the earlier of such dates;
(ii) any date selected by ANZ in its absolute discretion, in which case
the Exchange Date will be such date;
(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 Tier 1 Capital Ratio or the Total Capital
Adequacy Ratio of ANZ (either as reported quarterly by ANZ to the
Australian Prudential Regulation Authority or any successor or replacement
body ("APRA") or as determined at any time by APRA in its absolute
discretion) is below 4% or 8%, respectively or, in each case, such lesser
percentage as may be prescribed by APRA for ANZ at the time (the applicable
percentage in each such case being the "Required Percentage"), and is not
increased by ANZ to at least the Required Percentage, within 90 days after
the date on which ANZ makes such quarterly report or receives notice from
APRA of such determination by APRA, as applicable, in which
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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 (as specified in the constituent
documents) of the Distribution Trust, in which case the Exchange Date will
be the date on which the change occurs;
(vii) the common securities of the Distribution Trust cease to be wholly-
owned, directly or indirectly, by ANZ or a directly or indirectly wholly-
owned subsidiary or branch of ANZ, in which case the Exchange Date will be
the date on which the common securities of the Distribution Trust cease to
be wholly-owned, directly or indirectly, by ANZ or a direct or indirect
wholly-owned subsidiary or branch of ANZ;
(viii) any ANZ Borrower ceases to be ANZ or a direct or indirect wholly-
owned subsidiary or branch of ANZ, in which case the Exchange Date will be
the date on which such ANZ Borrower ceases to be ANZ or a direct or
indirect wholly-owned subsidiary or branch of ANZ;
(ix) (A) a proceeding is commenced by ANZ, the U.K. Company, the Jersey
Holding Company, the Jersey Charitable Trust, the Jersey Subsidiary, the
Distribution Trust or the ANZ Borrower (each, a "Relevant Entity") or a
person that controls the Relevant Entity for an order that the Relevant
Entity be wound up 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 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 such21-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
(x) 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 ANZ 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, any ANZ Borrower may, with the consent of the
Distribution Trust, assign its ANZ Loan or the Distribution Trust may replace
any ANZ Loan with another loan, in each case, to ANZ or to another directly or
indirectly wholly-owned subsidiary or branch of ANZ with prospective payment
terms identical to, and other terms substantially the same as, those of such
ANZ Loan, in which case ANZ or such other subsidiary or branch and loan will
be deemed to be such ANZ Borrower and such ANZ Loan, respectively, and any
such action will not constitute an Exchange Event.
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Total Capital Adequacy Ratio means the total capital adequacy ratio as
prescribed by APRA in its capital adequacy guidelines for Australian banks, as
modified from time to time. Tier 1 Capital Ratio means the ratio of Tier 1
capital to risk weighted assets (on a consolidated group basis) prescribed by
APRA in its capital adequacy guidelines for Australian banks, as modified from
time to time. Tier 1 capital means capital which is regarded as "tier 1
capital" for the purposes of the capital adequacy guidelines of APRA.
The redemption or Buy-Back component of the Exchange Event set forth in
clause (i) above is a result of the terms of the ANZ Preference Shares, which
provide that, with the prior consent of APRA (if required) or in the case of a
Buy-Back, if no consent is required, with the confirmation that APRA has no
objection, and in accordance with the terms of issue of the ANZ Preference
Shares, ANZ may, in its absolute discretion, redeem or Buy-Back the ANZ
Preference Shares for cash (a) prior to the fifth anniversary of the Issue
Date, in whole, but only upon the occurrence of certain tax, regulatory or
registration events and (b) at any time on or after the fifth anniversary of
the Issue Date, in whole or, after an Exchange Date, in whole or in part.
If the Exchange Event is anything other than a redemption or Buy-Back of the
ANZ Preference Shares for cash, then the Trust will distribute to holders of
the TrUEPrS one ADS per TrUEPrS. If a redemption or Buy-Back of the ANZ
Preference Shares for cash occurs, then the Trust will distribute to holders
of the TrUEPrS cash in the amount of US$25 per TrUEPrS, plus the accrued
dividends thereon for the current quarterly dividend period. After the
occurrence of any such Exchange Event, the Collateral Agent will deliver the
ADSs or the cash, as the case may be, to the Administrator and the
Administrator, on behalf of the Trust, will (i) in the case of a redemption or
Buy-Back of the ANZ Preference Shares for cash, distribute the proceeds to the
holders of TrUEPrS at the rate of US$25 per TrUEPrS then outstanding together
with an amount equal to the accrued but unpaid interest on each US$25
principal amount of Debt Securities from and including the Interest Payment
Date immediately preceding the Exchange Date to but excluding the Exchange
Date, or (ii) in all other cases, distribute the ADSs to the holders of
TrUEPrS at the rate of one ADS per TrUEPrS then outstanding. The distribution
described in the preceding sentence will be made to holders of record as of
the opening of business on the Exchange Date. The holders of the TrUEPrS will
thereafter have no further claims against the Trust and the Administrator will
wind up the Trust.
Dividend distributions on the TrUEPrS will cease to accrue on and after the
Exchange Date. In the case of any Exchange Event other than a redemption or
Buy-Back of the ANZ Preference Shares for cash, no dividend distributions will
be payable on the TrUEPrS on the Exchange Date (even if such Exchange Date is
a Dividend Payment Date). Instead, non-cumulative dividends will begin to
accrue on the ANZ Preference Shares from and including the last Interest
Payment Date in respect of which interest on the Debt Securities has been paid
or provided for in full. Accordingly, the dividends for any quarterly dividend
period ending on or after the Exchange Date will be payable as dividends on
the ANZ Preference Shares and in accordance with the terms of the ANZ
Preference Shares.
INTERVENING VEHICLES
The U.K. Company. The U.K. Company is a special purpose unlimited company
incorporated under the laws of England and Wales, and domiciled in the United
Kingdom. The U.K. Company is wholly-owned by a special purpose company
incorporated with limited liability under the laws of, and domiciled in,
Jersey, the Channel Islands (the "Jersey Holding Company"), which holds all of
the U.K. Company's ordinary shares. These ordinary shares will be the only
capital stock of the U.K. Company. The ordinary shares of the Jersey Holding
Company will be the only capital stock of the Jersey Holding Company and are
held by a charitable trust established under the laws of, and domiciled in,
Jersey, the Channel Islands (the "Jersey Charitable Trust").
The U.K. Company was established for the purpose of, among other things,
issuing the Debt Securities to the Trust and investing the proceeds thereof in
the Jersey Preference Shares. The U.K. Company will elect to be treated as a
partnership for United States Federal income tax purposes under U.S. Treasury
Regulations Sections 301.7701-1 through -3.
The U.K. Company will have at least two directors and an independent
auditor. The Memorandum and Articles of Association of the U.K. Company will
prohibit it from taking any action that would have a material
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adverse effect on the rights of the holders of the TrUEPrS. There will be no
annual shareholder meetings. There will be one directors' meeting each year at
which the director(s) will nominate directors, if necessary, and approve the
annual accounts. The U.K. Company will also appoint a paying agent located in
The City of New York to receive Income Entitlements from the Distribution
Trust, to make payments on the Debt Securities to the Trust and to meet the
ongoing costs and expenses of various entities as described below.
The Jersey Subsidiary. The Jersey Subsidiary is a special purpose company
incorporated with limited liability under the laws of, and domiciled in,
Jersey, Channel Islands. The U.K. Company will own all the ordinary shares of
the Jersey Subsidiary unless an Exchange Event (other than a redemption or Buy-
Back of the ANZ Preference Shares for cash if the Dollar Value on the Exchange
Date is equal to or less than the Dollar Value on any date on which the ANZ
Preference Shares are originally issued) occurs, in which case, the U.K.
Company will sell all the ordinary shares it owns in the Jersey Subsidiary to
the Jersey Holding Company immediately prior to the redemption of the Jersey
Preference Shares. The Jersey Subsidiary was established for the purpose of,
among other things, issuing the Jersey Preference Shares and investing the
proceeds thereof in the ADSs. The Jersey Subsidiary will elect to be
disregarded as an entity that is separate from its owner (i.e., the U.K.
Company) for United States Federal income tax purposes under U.S. Treasury
Regulations Sections 301.7701-1 through -3.
The Jersey Subsidiary will be managed by a Board of Directors and have an
independent auditor. The Memorandum and the Articles of Association of the
Jersey Subsidiary will prohibit the Board of Directors from taking any action
that would have a material adverse effect on the rights of the holders of the
TrUEPrS. There will be no annual shareholder meetings. There will be one
directors' meeting each year at which the director(s) will nominate directors,
if necessary, and approve the annual accounts.
The Distribution Trust. The Distribution Trust is a business trust
established under the laws of the State of Delaware. The Distribution Trust
will operate in accordance with the distribution trust agreement that
establishes its terms; the U.K. Company will have no right to cause any
variation of such terms. The Distribution Trust will elect to be disregarded as
an entity that is separate from its owner (i.e., the holder of the common
securities of the Distribution Trust) for United States Federal income tax
purposes under U.S. Treasury Regulations Sections 301.7701-1 through -3.
The administration of the Distribution Trust will be overseen by the trustees
thereof.
On the Issue Date, ANZ will use the proceeds from the issuance of the ANZ
Preference Shares to make a capital contribution of US$400,100,000 (or
US$460,000,000 if the Underwriters exercise their over-allotment option in
full) to the Distribution Trust and the Distribution Trust will use the capital
contribution to make the ANZ Loan to the ANZ Borrower. The ANZ Loan will mature
five years after the maturity date of the Debt Securities on October 15, 2052.
The ANZ Loan will be the only asset, and interest thereon will be the only
source of revenue, of the Distribution Trust. Interest on the ANZ Loan will
accrue from the date on which such loan is made and be due and payable on each
Interest Payment Date at the rate of % per annum. The interest paid on the ANZ
Loan will be used by the Distribution Trust to pay the Income Entitlements to
the U.K. Company. The interest rate represents the sum of % (the interest rate
on the Debt Securities, which equals the dividend rate on the TrUEPrS) and a
spread of 0.25%. The spread is designed to enable the U.K. Company to pay (a)
its ongoing costs and expenses and those of the Jersey Subsidiary, (b)
dividends to the Jersey Holding Company in an amount sufficient to enable it to
pay its expenses and those of the Jersey Charitable Trust, the Collateral Agent
and (pursuant to the Trust Expense Agreement (as defined herein)) the Trust and
(c) the indemnity fee payable to ANZMB Limited, an affiliate of ANZ (the "ANZ
Affiliate").
On and after an Exchange Date, the U.K. Company will cease to be an income
beneficiary of the Distribution Trust and ANZ Funds Pty Ltd, an affiliate of
ANZ, will receive all the Income Entitlements of the Distribution Trust
thereafter; provided, however, if the Exchange Event is the cash redemption or
Buy-Back of the ANZ Preference Shares, the U.K. Company will be entitled to
receive an Income Entitlement equal to the accrued but unpaid interest on the
Debt Securities for the period from and including the Interest Payment Date
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immediately preceding the Exchange Date to but excluding the Exchange Date. In
the event an Income Entitlement is not paid for any reason, an Exchange Event
will occur because the U.K. Company will have insufficient funds to pay
interest on the Debt Securities.
Under the terms of the Distribution Trust, other than in connection with a
redemption or Buy-Back of ANZ Preference Shares for cash, no Income
Entitlement shall be paid or payable to the U.K. Company on any Interest
Payment Date if (i) an Exchange Event has occurred on or prior to such
Interest Payment Date, (ii) the amount of Income Entitlement payable on such
date, together with the aggregate amount of dividends paid on or before such
date during the then current fiscal year of ANZ on any preference shares or
ordinary shares of ANZ, would exceed ANZ's earnings during the prior fiscal
year or (iii) the payment of such Income Entitlement would be prohibited or
limited by applicable law, regulation or order or by any instrument or
agreement to which ANZ is subject (collectively, the "Payment Prohibitions").
In the event a Payment Prohibition exists or will exist on any Interest
Payment Date, ANZ will notify the Administrator no later than the third
Business Day prior to such date.
TRUST DISSOLUTION
The Trust will dissolve as soon as possible after the exchange of the
TrUEPrS for ADSs or cash, as the case may be, upon the occurrence of an
Exchange Event.
INVESTMENT RESTRICTIONS
The Trust has adopted a fundamental policy that the Trust may not purchase
any securities or instruments other than (a) the Debt Securities and any
distributions thereon, (b) the Jersey Preference Shares, if applicable, and
(c) if applicable, the ADSs to be purchased pursuant to the ADSs Purchase
Contract; issue any securities or instruments except for the TrUEPrS; make
short sales or purchase securities on margin; write put or call options;
borrow money; underwrite securities; purchase or sell real estate, commodities
or commodities contracts; or make loans. The Trust has adopted a fundamental
policy (a) to invest 100% of its portfolio in the Debt Securities and any
distributions thereon, and not to dispose of the Debt Securities during the
term of the Trust, other than in connection with a mandatory redemption
thereof as a result of an Exchange Event, and (b) to enter into the ADSs
Purchase Contract and not to dispose of the ADSs Purchase Contract during the
term of the Trust.
Because of the foregoing limitations, the Trust's investments will be
concentrated initially in the financial services industry, which is the
industry in which ANZ currently operates. However, to the extent that in the
future ANZ diversifies its operations into one or more other industries, the
Trust's investments will be less concentrated in the financial services
industry.
RISK FACTORS
NO ACTIVE PORTFOLIO MANAGEMENT
It is a fundamental policy of the Trust (a) to invest 100% of its portfolio
in the Debt Securities and any distributions thereon, and not to dispose of
the Debt Securities during the term of the Trust, other than in connection
with a mandatory redemption thereof as a result of an Exchange Event, and (b)
to enter into the ADSs Purchase Contract and not to dispose of the ADSs
Purchase Contract during the term of the Trust. The Trust will not be managed
like a typical closed-end investment company.
ABSENCE OF TRADING HISTORY; MARKETABILITY; POSSIBILITY OF THE TRUEPRS TRADING
AT A DISCOUNT FROM NET ASSET VALUE
The TrUEPrS have no trading history and it is not possible to predict how
they will trade in the secondary market. The trading price of the TrUEPrS may
vary considerably prior to an Exchange Event due to, among
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other things, complex and interrelated political, economic, financial and
other factors that can affect the capital markets generally, the stock
exchanges or quotation systems on which ANZ's shares are traded and the market
segment of which ANZ is a part and fluctuations in interest rates and rates of
exchange between the Australian dollar and the U.S. dollar and other factors
that are difficult to predict and beyond the Trust's control. Reference is
made to the accompanying prospectus of ANZ.
The TrUEPrS are a new issue of securities and, accordingly, have no
established trading market. The Underwriters currently intend, but are not
obligated, to make a market in the TrUEPrS. There can be no assurance that a
secondary market will develop or, if a secondary market does develop, that it
will provide the holders of the TrUEPrS with liquidity of investment or that
it will continue for the life of the TrUEPrS. The TrUEPrS have been approved
for listing on the New York Stock Exchange (the "NYSE"), subject to official
notice of issuance. Trading of the TrUEPrS on the NYSE is expected to commence
within the 30-day period after the Issue Date. In the event of a delisting or
suspension of trading on such exchange, the Trust will apply for listing of
the TrUEPrS on another national securities exchange or for quotation on
another trading market. If the TrUEPrS are not listed or traded on any
securities exchange or trading market, or if trading of the TrUEPrS is
suspended, pricing information for the TrUEPrS may be more difficult to
obtain, and the price and liquidity of the TrUEPrS may be adversely affected.
The Trust is a newly organized closed-end investment company with no
previous operating history. Shares of closed-end investment companies
frequently trade at a discount from their net asset value, which is a risk
separate and distinct from the risk that the Trust's net asset value will
decrease. The Trust cannot predict whether the TrUEPrS will trade at, below or
above their net asset value. The risk of purchasing investments that might
trade at a discount is more pronounced for investors who wish to sell their
investments in a relatively short period of time after completion of the
Trust's initial public offering because for those investors realization of a
gain or loss on their investments is likely to be more dependent upon the
existence of a premium or discount than upon portfolio performance. TrUEPrS
are not subject to redemption.
LIMITED TERM
The term of the Trust will expire as soon as possible after the exchange of
the TrUEPrS for ADSs or cash, as the case may be, upon the occurrence of an
Exchange Event.
NON-DIVERSIFIED PORTFOLIO
Prior to the Exchange Date, the Trust's assets will consist of (a) the Debt
Securities and distributions thereon and (b) the ADSs Purchase Contract. As a
result, investments in the Trust may be subject to greater risk than would be
the case for a company with a more diversified portfolio of investments.
LIMITED STOCKHOLDER RIGHTS
Except as described below, holders of the TrUEPrS will not be entitled to
any rights with respect to the ADSs or the ANZ Preference Shares (including,
without limitation, rights to receive any dividends or other distributions in
respect thereof) until such time, if any, as the Trust shall have delivered
the ADSs in exchange for TrUEPrS upon the occurrence of an Exchange Event
(unless the Exchange Event is the redemption or Buy-Back of the ANZ Preference
Shares for cash). In addition, the Trust as the holder of the Debt Securities,
has no voting rights in relation to the U.K. Company.
Each TrUEPrS will entitle the holder thereof to direct the exercise of the
voting rights attaching to four ANZ Preference Shares represented by one ADS.
The holders of the ANZ Preference Shares will be entitled to vote together
with the holders of ordinary shares of ANZ, on the basis of one vote per ANZ
Preference Share on any poll, (a) in all cases, with respect to certain
matters specified herein and (b) during a Special Voting Period (as defined
below), with respect to all matters on which the holders of the ordinary
shares of ANZ are entitled to vote. A "Special Voting Period" is the period
from and including (i) any Dividend Payment Date on which
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ANZ fails to pay in full the dividends accrued in respect of the quarterly
dividend period then ended or (ii) the fourth Business Day after any Exchange
Date occurring as a result of any failure by the Trust to receive in full the
interest payable on the Debt Securities, unless, prior to such date, ANZ has
paid in full an optional dividend on the ANZ Preference Shares in an aggregate
amount equal to the amount of interest not so received (an "Optional
Dividend"), in each case to but excluding the first Dividend Payment Date
thereafter as of which ANZ has paid in full four consecutive quarterly
dividends on the ANZ Preference Shares. In addition, the holders of the ANZ
Preference Shares will have the right to vote separately as a class in certain
circumstances involving a variation of the rights of holders of the ANZ
Preference Shares. As long as the ADSs are owned by the Jersey Subsidiary, the
Jersey Subsidiary will, or will cause the Collateral Agent to, direct the ADR
depositary to vote the ANZ Preference Shares represented by the ADSs as
directed by the holders of the TrUEPrS.
YEAR 2000 NONCOMPLIANCE
Many computer systems were designed using only two digits to designate years.
These systems may not be able to distinguish the Year 2000 from the Year 1900
(commonly known as the "Year 2000 Problem"). Like other investment companies
and financial and business organizations, the Trust could be adversely affected
if the computer systems used by the Trust or the Trust's service providers do
not properly address this problem prior to January 1, 2000. The Trust has
sought assurances from its service providers that they are taking all necessary
steps to ensure that their computer systems will accurately reflect the Year
2000, and the Trust will continue to monitor the situation. At this time,
however, no assurance can be given that the Trust's service providers have
anticipated every step necessary to avoid any adverse effect on the Trust
attributable to the Year 2000 Problem.
DESCRIPTION OF THE TRUEPRS
Each TrUEPrS represents a proportionate share of beneficial interest in the
assets of the Trust. A total of 16,000,000 TrUEPrS will be issued in the
Offering, assuming no exercise of the Underwriters' over-allotment option, and
excluding 4,000 TrUEPrS issued to ML IBK Positions, Inc. in accordance with the
requirements of the Investment Company Act. Upon liquidation of the Trust,
holders of TrUEPrS are entitled to share pro rata based on the number of
TrUEPrS outstanding in the net assets of the Trust available for distribution.
Holders of TrUEPrS have no preemptive, redemption or conversion rights. The
TrUEPrS, when issued and outstanding, will be fully paid and nonassessable.
VOTING RIGHTS
Holders are entitled to one vote for each TrUEPrS on all matters to be voted
on by holders and are not able to cumulate their votes in the election of
Trustees. The Trust intends to hold annual meetings as required by the rules of
the NYSE. The holders have the right, upon the declaration in writing or vote
of more than two-thirds of the outstanding TrUEPrS, to remove a Trustee. The
Trustees will call a meeting of holders to vote on the removal of a Trustee
upon the written request of the record holders of 10% of the TrUEPrS or to vote
on other matters upon the written request of the record holders of more than
50% of the TrUEPrS (unless substantially the same matter was voted on during
the preceding 12 months).
Pursuant to the ADRs Security and Pledge Agreement and the ADR deposit
agreement, each TrUEPrS will entitle the holder thereof to direct the exercise
of the voting rights attaching to one ADS and four ANZ Preference Shares. The
holders of the ANZ Preference Shares will be entitled to vote together with the
holders of ordinary shares of ANZ, on the basis of one vote per ANZ Preference
Share on any poll, (a) in all cases, with respect to certain matters specified
below and (b) during a Special Voting Period, with respect to all matters on
which the holders of the ordinary shares of ANZ are entitled to vote. The
matters referred to in clause (a) of the preceding sentence upon which the
holders of ANZ Preference Shares will have a right to vote, together with the
holders of ordinary shares of ANZ, are: any proposal to reduce the share
capital of ANZ; any resolution to approve the terms of a share buy-back
arrangement; any proposal that affects the rights attached to the ANZ
Preference Shares; any proposal to wind up ANZ; any proposal for the disposal
of the whole of the property, business and undertaking of ANZ; and any matter
during the winding up of ANZ. In addition, the holders of the
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ANZ Preference Shares will have the right to vote separately as a class in
certain circumstances involving a variation of the rights of holders of the
ANZ Preference Shares. Pursuant to the ADRs Security and Pledge Agreement, as
long as the ADSs are held by the Jersey Subsidiary, the Jersey Subsidiary
will, or will cause the Collateral Agent to, direct the ADR depositary to vote
the ANZ Preference Shares as directed by the holders of the TrUEPrS.
Merrill Lynch, Pierce, Fenner & Smith Incorporated has applied to the
Commission for an exemptive order that would, if issued, among other things,
permit other investment companies and companies excepted from the definition
of investment company under Sections 3(c)(1) and 3(c)(7) of the Investment
Company Act to own more than 3% of the total outstanding TrUEPrS. Under the
Declaration of Trust, however, any such company owning TrUEPrS in excess of
the limits imposed by Sections 12(d)(1)(A)(i) and 12(d)(1)(C) of the
Investment Company Act must vote their TrUEPrS in proportion to the vote of
all other holders of TrUEPrS that are not such companies. There is no
assurance that the application for an exemptive order will be granted by the
Commission.
Modifications and amendments of the terms of the TrUEPrS, the Debt
Securities, the ADSs Purchase Contract and the Jersey Preference Shares may be
made with the consent of not less than a majority of the holders of the
TrUEPrS; provided that, no such modification or amendment may, without the
consent of 100% of the holders of the TrUEPrS, change the amount or timing of
any dividend on the TrUEPrS, the amount or timing of interest payments on the
Debt Securities, the liquidation preference of the Jersey Preference Shares,
the redemption amount of the Debt Securities and the Jersey Preference Shares,
the purchase price for or the number of ADSs deliverable pursuant to the ADSs
Purchase Contract or otherwise adversely affect the foregoing terms or cause
an Exchange Event to occur. Modifications and amendments may be made without
the consent of any holder of the TrUEPrS to cure any ambiguity, defect or
inconsistency in the Declaration of Trust or any instrument defining the terms
of the TrUEPrS, the Debt Securities and the Jersey Preference Shares or the
ADSs Purchase Contract, provided that, such action will not adversely affect
in any material respect the rights of the holders of the TrUEPrS or cause an
Exchange Event to occur.
RESTRICTIONS ON OWNERSHIP AND TRANSFER
Generally, under the Australian Corporations Law, the concept of voting
share does not include certain types of preference shares with limited voting
rights. Because holders of the ANZ Preference Shares have been conferred a
right to vote following a missed dividend, the ANZ Preference Shares will be
treated as voting shares for relevant purposes. Therefore, a person with an
entitlement to ANZ Preference Shares, including holders of TrUEPrS, should
consider this entitlement with any entitlement to other voting shares in ANZ
in the context of the regulatory thresholds summarized below and seek
appropriate legal advice.
In summary, under the Australian Corporations Law, a person or group of
persons cannot acquire voting shares in a public company if that person or
group of persons or another person would then be "entitled" (which is defined
very broadly) to more than 20% of the voting shares in ANZ unless those shares
are acquired in a manner specifically permitted by law. This restriction also
limits the options available to a shareholder wanting to sell a shareholding
of more than 20% in an Australian public company. The Australian Corporations
Law also imposes certain substantial shareholding disclosure obligations on
persons who are or become "entitled" to 5% or more of the voting shares in a
company listed on the Australian Stock Exchange, such as ANZ.
BOOK-ENTRY SYSTEM
The TrUEPrS will be issued in the form of one or more global securities (the
"Global Securities") deposited with the Depository and registered in the name
of a nominee of the Depository.
The Depository has advised the Trust and the Underwriters as follows: The
Depository is a limited-purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository
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was created to hold securities of persons who have accounts with the
Depository ("participants") and to facilitate the clearance and settlement of
securities transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of certificates. Such participants
include securities brokers and dealers, banks, trust companies and clearing
corporations. Indirect access to the Depository's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
Upon the issuance of a Global Security, the Depository or its nominee will
credit the respective TrUEPrS represented by such Global Security to the
accounts of participants. The accounts to be credited shall be designated by
the Underwriters. Ownership of beneficial interests in such Global Securities
will be limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in such Global
Securities will be shown on, and the transfer of those ownership interests
will be effected only through, records maintained by the Depository or its
nominee for such Global Securities. Ownership of beneficial interests in such
Global Securities by persons that hold through participants will be shown on,
and the transfer of that ownership interest within such participant will be
effected only through, records maintained by such participant. The laws of
some jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the TrUEPrS.
Except as set forth below, owners of beneficial interests in such Global
Securities will not be entitled to have the TrUEPrS registered in their names
and will not receive or be entitled to receive physical delivery of the
TrUEPrS in definitive form and will not be considered the owners or holders
thereof.
Delivery of ADSs or payment of amounts or delivery of other consideration
deliverable on exchange of, and any quarterly distributions on, TrUEPrS
registered in the name of or held by the Depository or its nominee will be
made to the Depository or its nominee, as the case may be, as the registered
owner or the holder of the Global Security. None of the Trust, any Trustee,
the Administrator, the Paying Agent or the Custodian for the TrUEPrS will have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Trust expects that the Depository, upon receipt of any payment in
respect of a Global Security, will credit immediately participants' accounts
with payments in amounts proportionate to their respective beneficial
interests in such Global Security as shown on the records of the Depository.
The Trust also expects that payments by participants to owners of beneficial
interests in such Global Security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in "street
name", and will be the responsibility of such participants.
A Global Security may not be transferred except as a whole by the Depository
to a nominee or a successor of the Depository. If the Depository is at any
time unwilling or unable to continue as depository and a successor depository
is not appointed by the Trust within ninety days, the Trust will issue TrUEPrS
in definitive registered form in exchange for the Global Security representing
such TrUEPrS. In addition, the Trust may at any time and in its sole
discretion determine not to have any TrUEPrS represented by one or more Global
Securities and, in such extent, will issue TrUEPrS in definitive form in
exchange for all of the Global Securities representing the TrUEPrS. Further,
if the Trust so specifies with respect to the TrUEPrS, an owner of a
beneficial interest in a Global Security representing TrUEPrS may, on terms
acceptable to the Trust and the Depository for such Global Security, receive
TrUEPrS in definitive form. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to physical delivery in
definitive form of TrUEPrS represented by such Global Security equal in number
to that represented by such beneficial interest and to have such TrUEPrS
registered in its name.
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TRUSTEES
The Trustees of the Trust consist of three individuals, none of whom is an
"interested person" of the Trust as defined in the Investment Company Act. The
Trustees of the Trust are responsible for the overall supervision of the
operations of the Trust and perform the various duties imposed on the trustees
of management investment companies by the Investment Company Act.
The Trustees of the Trust are:
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION
NAME, AGE AND ADDRESS TITLE DURING PAST FIVE YEARS
- --------------------- ---------------- ----------------------
<S> <C> <C>
Donald J. Puglisi, 53................... Managing Trustee Professor of Finance
Department of Finance University of Delaware
University of Delaware
Newark, DE 19716
William R. Latham III, 54............... Trustee Professor of Economics
Department of Economics University of Delaware
University of Delaware
Newark, DE 19716
James B. O'Neill, 59.................... Trustee Professor of Economics
Center for Economic University of Delaware
Education & Entrepreneurship
University of Delaware
Newark, DE 19716
</TABLE>
COMPENSATION OF TRUSTEES
The annual fees and anticipated out-of-pocket expenses of each unaffiliated
Trustee and any additional fees of the Trust's Managing Trustee will be paid
by the Jersey Holding Company pursuant to an expense agreement (the "Trust
Expense Agreement") between it and The Bank of New York, as the Administrator,
Custodian and Paying Agent of the Trust. The Trustees will not receive, either
directly or indirectly, any compensation, including any pension or retirement
benefits, from the Trust. None of the Trustees receives any compensation for
serving as a trustee or director of any other affiliated investment company.
MANAGEMENT ARRANGEMENTS
PORTFOLIO MANAGEMENT AND ADMINISTRATION
The Trust will be internally managed and will not have an investment
adviser. Prior to the Exchange Date, the Trust's portfolio will consist only
of (a) US$400,100,000 aggregate principal amount of Debt Securities
(US$460,000,000 aggregate principal amount of Debt Securities if the
Underwriters' over-allotment option is exercised in full), and any
distributions thereon, and (b) the ADSs Purchase Contract. The Trust's
portfolio will not be actively managed. The Trustees of the Trust will
authorize the purchase of the Debt Securities as directed by the Declaration
of Trust. It is a fundamental policy of the Trust that the Debt Securities may
not be disposed of during the term of the Trust other than in connection with
a mandatory redemption thereof as a result of an Exchange Event, and that the
ADSs Purchase Contract not be disposed of during the term of the Trust.
The Trust will pay all expenses incurred in the Trust's formation and other
initial expenses and expenses relating to the Offering out of the facility fee
to be paid on the Issue Date to the Trust by the U.K. Company in connection
with the investment by the Trust in the Debt Securities. The ongoing
administrative and other 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,
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mailing and other expenses properly payable by the Trust will be paid by the
Jersey Holding Company pursuant to the Trust Expense Agreement. Subject to the
satisfaction of certain conditions, any operating expenses of the Trust not
covered by the Trust's arrangements with the Jersey Holding Company will be
paid by the ANZ Affiliate pursuant to an expense and indemnity agreement (the
"Expense and Indemnity Agreement") among it, the U.K. Company, the Trust, the
Jersey Holding Company, the Jersey Subsidiary and the Jersey Charitable Trust.
See "--Estimated Expenses."
Administrator. The day-to-day affairs of the Trust will be managed by The
Bank of New York, as the Administrator pursuant to an administration agreement
(the "Administration Agreement"). Under the Administration Agreement, the
Trustees have delegated most of their operational duties to the Administrator,
including without limitation, the duties to: (i) pay, or cause to be paid, all
expenses incurred by the Trust;(ii) with the approval of the Trustees, engage
legal and other professional advisors (other than the independent public
accountants for the Trust); (iii) instruct the Paying Agent to pay
distributions on TrUEPrS as described herein; (iv) cause the legal and other
professional advisors engaged by it to prepare and mail, file or publish all
notices, proxies, reports, tax returns and other communications and documents
for the Trust, and keep all books and records for the Trust; (v) at the
direction of the Trustees, and upon being furnished with reasonable security
and indemnity as the Administrator may require, institute and prosecute legal
and other appropriate proceedings to enforce the rights and remedies of the
Trust; and (vi) make, or cause to be made, all necessary arrangements with
respect to meetings of Trustees and any meetings of holders of TrUEPrS. The
Administrator will not, however, select the independent public accountants for
the Trust or sell or otherwise dispose of the Trust assets (except in
connection with the occurrence of an Exchange Event).
The Administration Agreement may be terminated by either the Trust or the
Administrator upon 60 days prior written notice, except that no termination
shall become effective until a successor Administrator has been chosen and has
accepted the duties of the Administrator.
Except for its roles as Administrator, Custodian and Paying Agent of the
Trust, and except for its role as Collateral Agent and securities intermediary
under the Security and Pledge Agreements, as paying and transfer agent for the
Debt Securities and the ANZ Preference Shares, and as depositary for the ADRs,
The Bank of New York has no other affiliation with, and is not engaged in any
other transactions with, the Trust.
The address of the Administrator is 101 Barclay Street, New York, New York
10286.
CUSTODIAN
The Trust's custodian (the "Custodian") is The Bank of New York pursuant to
a custodian agreement (the "Custodian Agreement"). In the event of any
termination of the Custodian Agreement by the Trust or the resignation of the
Custodian, the Trust must engage a new Custodian to carry out the duties of
the Custodian as set forth in the Custodian Agreement. The Custodian will also
act as Collateral Agent under the Security and Pledge Agreements, under which
it will hold a perfected security interest in the ADSs, the Jersey Preference
Shares or other assets consistent with the terms of the securities pledged
thereunder on behalf of the Trust, and as depositary for the ADRs.
PAYING AGENT
The paying agent, transfer agent and registrar (the "Paying Agent") for the
TrUEPrS is The Bank of New York pursuant to a paying agent agreement (the
"Paying Agent Agreement"). In the event of any termination of the Paying Agent
Agreement by the Trust or the resignation of the Paying Agent, the Trust will
use its best efforts to engage a new Paying Agent to carry out the duties of
the Paying Agent.
INDEMNIFICATION
The Trust will, to the fullest extent permitted by applicable law, indemnify
each Trustee, the Administrator, the Paying Agent and the Custodian with
respect to any claim, liability, loss which it may incur in acting as Trustee,
Administrator, Paying Agent or Custodian, as the case may be, and any
reasonable expense incurred in connection with any such claim, liability or
loss (including the reasonable costs and expenses of the defense
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against any claim or liability) except in the case of willful misfeasance, bad
faith, gross negligence or reckless disregard of their respective duties.
Subject to the satisfaction of certain conditions, pursuant to the Expense and
Indemnity Agreement, the ANZ Affiliate will reimburse the Trust for any
amounts it may be required to pay as indemnification to any Trustee, the
Administrator, the Paying Agent or the Custodian.
ESTIMATED EXPENSES
Organization costs of the Trust in the amount of $32,000 and estimated costs
of the Trust in connection with the initial registration of the TrUEPrS and
the Offering in the amount of approximately $598,000 will be paid by the Trust
out of the facility fee to be paid on the Issue Date to the Trust by the U.K.
Company in connection with the investment by the Trust in the Debt Securities.
The ongoing administrative and other expenses of the Trust will be paid by the
Jersey Holding Company pursuant to the Trust Expense Agreement. Subject to the
satisfaction of certain conditions, any operating expenses of the Trust not
covered by the Trust's arrangements with the Jersey Holding Company will be
paid by the ANZ Affiliate pursuant to the Expense and Indemnity Agreement.
DIVIDENDS AND DISTRIBUTIONS
The Trust intends to distribute to holders dividend distributions in an
amount equal to US$ per TrUEPrS per annum, payable quarterly in arrears
in an amount equal to US$ per TrUEPrS on each Dividend Payment Date to
holders of record on the immediately preceding Record Date. The first
distribution in respect of the period from and including the Issue Date to but
excluding October 15, 1998 will equalUS$ per TrUEPrS.
Dividend payments on the TrUEPrS will be made from the interest payments
received by the Trust on the Debt Securities. Interest payments on the Debt
Securities will be made by the U.K. Company only to the extent that it
receives Income Entitlements as the income beneficiary of the Distribution
Trust. The U.K. Company's right to receive Income Entitlements will not
represent an absolute ownership interest in the Distribution Trust or the
income thereof, but rather an entitlement to receive Income Entitlements only
to the extent actually distributed to the U.K. Company by the Distribution
Trust; if any Income Entitlement payable on any Interest Payment Date is not
paid to the U.K. Company or at its direction on such date for any reason, the
Distribution Trust will have no further obligation to pay such Income
Entitlement to the U.K. Company and the U.K. Company will have no right to
require such payment. See "Investment Objective and Policies--Intervening
Vehicles." In the event an Income Entitlement is not paid for any reason, an
Exchange Event will occur because the U.K. Company will have insufficient
funds to pay interest on the Debt Securities.
On and after the Exchange Date, the U.K. Company will cease to be the income
beneficiary of the Distribution Trust and ANZ Funds Pty Ltd, an affiliate of
ANZ, will receive all the Income Entitlements of the Distribution Trust
thereafter; provided, however, if the Exchange Event is the cash redemption or
Buy-Back of the ANZ Preference Shares, the U.K. Company will be entitled to
receive an Income Entitlement equal to the accrued but unpaid interest on the
Debt Securities for the period from and including the Interest Payment Date
immediately preceding the Exchange Date to but excluding the Exchange Date.
On each Interest Payment Date, (i) the ANZ Borrower will make an interest
payment on the ANZ Loan to the Distribution Trust; (ii) if no Payment
Prohibition exists, the Distribution Trust will distribute such interest
payment as an Income Entitlement to the U.K. Company; and (iii) the U.K.
Company will pay (a) interest on the Debt Securities to the Trust, (b) ongoing
costs and expenses of the U.K. Company and the Jersey Subsidiary, (c)
quarterly dividend payments on the U.K. Company's voting shares to the Jersey
Holding Company, which dividends will be used by the Jersey Holding Company to
pay ongoing expenses of the Jersey Holding Company, the Jersey Charitable
Trust, the Collateral Agent and (pursuant to the Trust Expense Agreement) the
Trust and (d) an indemnity fee payable to the ANZ Affiliate. On such Interest
Payment Date (which will also be a Dividend Payment Date), the Administrator
of the Trust will use all the interest received by the Trust on the Debt
Securities to pay dividends on the TrUEPrS.
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Dividend distributions on the TrUEPrS will cease to accrue on and after the
Exchange Date. In the case of any Exchange Event other than a redemption or
Buy-Back of the ANZ Preference Shares for cash, no dividend distributions will
be payable on the TrUEPrS on the Exchange Date (even if such Exchange Date is
a Dividend Payment Date). Instead, non-cumulative dividends will begin to
accrue on the ANZ Preference Shares from and including the last Interest
Payment Date in respect of which interest on the Debt Securities has been paid
or provided for in full. Accordingly, the dividends for any quarterly dividend
periods ending on or after the Exchange Date will be payable only as dividends
on the ANZ Preference Shares and only in accordance with the terms of the ANZ
Preference Shares.
NET ASSET VALUE
The net asset value of the TrUEPrS will be calculated by the Trust no less
frequently than quarterly by dividing the value of the net assets of the Trust
(the value of its assets less its liabilities) by the total number of TrUEPrS
outstanding. The Trust's net asset value will be published semi-annually as
part of the Trust's semi-annual report to holders and at such other times as
the Trustees may determine. The value of (a) the Debt Securities and (b) the
ADSs Purchase Contract held by the Trust will be determined in good faith by
the Board of Trustees pursuant to procedures adopted by them.
TAXATION
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain United States Federal income tax
consequences of the purchase, ownership and disposition of TrUEPrS is based
upon the advice of Sullivan & Cromwell, counsel to ANZ. The summary addresses
only the tax consequences to persons that acquire TrUEPrS in connection with
the Offering and hold the TrUEPrS as a capital asset. It does not address all
tax consequences of the ownership of TrUEPrS and does not take into account
the specific circumstance of investors such as tax-exempt entities, banks,
certain insurance companies, broker dealers, traders in securities that elect
to mark to market, investors liable for the alternative minimum tax, investors
that hold TrUEPrS as part of a straddle or hedging or conversion transaction
or investors whose functional currency is not the U.S. dollar. The summary is
based on the Internal Revenue Code of 1986, as amended, its legislative
history, existing and proposed regulations thereunder, published rulings and
court decisions as well as the income tax treaty between the United States and
Australia (the "Treaty") all of which are subject to change possibly with
retroactive effect.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS AS
TO THE UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE PURCHASE,
OWNERSHIP AND DISPOSITION OF TrUEPrS, AS WELL AS THE EFFECT OF ANY STATE,
LOCAL OR FOREIGN TAX LAWS.
U.S. Holders
A "U.S. Holder" is any beneficial owner of TrUEPrS that is (i) a citizen or
resident of the United States, (ii) a domestic corporation, (iii) an estate
the income of which is subject to United States Federal income tax without
regard to its source, or (iv) a trust if a court within the United States is
able to exercise primary supervision over administration of the trust and one
or more United States persons have authority to control all substantial
decisions of the trust. A "Non-U.S. Holder" is any beneficial owner that is
not a United States person for United States Federal income tax purposes.
Classification of the Trust and the Debt Securities and Distributions on
TrUEPrS. For United States federal income tax purposes the Trust will be
classified as a grantor trust and not as an association taxable as a
corporation, and the Debt Securities held by the Trust will be treated as
equity in ANZ. Accordingly, for United States Federal income tax purposes,
each U.S. Holder generally will be treated as owning equity of ANZ and
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will be required to include in income, as a dividend, the holder's share of
the gross amount of the interest paid to the Trust on the Debt Securities to
the extent of the current and accumulated earnings and profits (as determined
for United States Federal income tax purposes) of ANZ. For foreign tax credit
limitation purposes the payments will be income from sources without the
United States, but generally will be treated separately, together with the
other items of "passive income" (or in the case of certain holders, "financial
services income").
Sale of the TrUEPrS. Upon a sale or other disposition of the TrUEPrS
(including generally the receipt of a distribution of cash in redemption of
all of a U.S. Holder's TrUEPrS), a U.S. Holder will recognize gain or loss in
an amount equal to the difference between the amount realized and the U.S.
Holder's adjusted tax basis. Generally, such gain or loss will be capital gain
or loss and will be long-term capital gain or loss if the U.S. Holder's
holding period exceeds one year. Any such gain will be income from sources
within the United States for foreign tax credit limitation purposes.
Consequences of an Exchange Event. As described above under "Investment
Objective and Policies--Exchange Event" upon the occurrence of an Exchange
Event, the Trust will distribute ADSs or, under certain circumstances, cash to
holders of TrUEPrS in exchange for their TrUEPrS and in liquidation of the
Trust. A U.S. Holder's exchange of TrUEPrS for ADSs generally will not be a
taxable event for United States Federal income tax purposes. A U.S. Holder's
basis in the ADSs received upon exchange will generally be the same as the
U.S. Holder's basis in the property exchanged therefor and such holder's
holding period in the ADSs would include their holding period in such
property.
Upon the occurrence of certain Exchange Events, holders of the TrUEPrS may
receive cash. For U.S. federal income tax purposes such receipt of cash would
constitute a taxable disposition of the TrUEPrS and a U.S. Holder would
generally recognize gain or loss in the same manner if there had been a sale
or disposition as described under "--Sale of the TrUEPrS" above. Amounts
representing accrued but unpaid interest on the Debt Securities will be
treated as a distribution on TrUEPrS as discussed under "--Classification of
the Trust and the Debt Securities and Distributions on TrUEPrS" above.
ADSs Received in an Exchange Event
Distributions on the ADSs. U.S. Holders will include in gross income the
gross amount of any dividend paid including Additional Amounts (as defined and
described in the accompanying prospectus of ANZ), if any, before reduction for
Australian withholding taxes by ANZ, out of its current or accumulated
earnings and profits (as determined for U.S. federal income tax purposes) as
ordinary income when the dividend is actually or constructively received by
the U.S. Holder. The dividend will not be eligible for the dividends received
deduction generally allowed to United States corporations in respect of
dividends received from other United States corporations.
Subject to certain limitations, the Australian tax withheld, if any, in
accordance with the Treaty and paid over to Australia will be creditable
against the U.S. Holder's United States federal income tax liability. For
foreign tax credit limitation purposes, the dividend will be income from
sources without the United States, but generally will be treated separately,
together with the other items of "passive income" (or in the case of certain
holders "financial services income").
Sale or Other Disposition of ADSs. A U.S. Holder will recognize gain or loss
for U.S. federal income tax purposes upon the sale or other disposition of
ADSs in an amount equal to the difference between the U.S. dollar value of the
amount realized and the U.S. Holder's adjusted tax basis (determined in U.S.
dollars) in the ADSs. Generally, such gain will be capital gain or loss, will
be long-term capital gain or loss if the U.S. Holder's holding period for the
ADSs exceeds one year and any such gain will be income from sources within the
United States for foreign tax credit limitation purposes.
PFIC Considerations
ANZ does not believe that it will be treated as a passive foreign investment
company (a "PFIC") for United States Federal income tax purposes but that is a
factual determination made annually and therefore may be
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subject to change. Because a U.S. Holder of TrUEPrS will be treated as owning
an equity interest in ANZ for United States Federal income tax purposes, if
ANZ were a PFIC a U.S. Holder of TrUEPrS as well as a holder of ADSs would be
subject to certain adverse tax consequences.
Non-U.S. Holders
Distributions on the TrUEPrS and ADSs. Distributions to a Non-U.S. Holder
will not be subject to United States Federal income tax unless such
distributions are effectively connected with the conduct of a trade or
business within the United States by such Non-U.S. Holder (and are
attributable to a permanent establishment maintained in the United States by
such Non-U.S. Holder, if an applicable income tax treaty so requires as a
condition for such Non-U.S. Holder to be subject to United States taxation on
a net income basis in respect of income from TrUEPrS or ADSs), in which case
such Non-U.S. Holder generally will be subject to tax in respect of
distributions in the same manner as a U.S. Holder. Any such effectively
connected distributions received by a non-U.S. corporation may also, under
certain circumstances, be subject to an "additional branch profits" tax at a
30% rate of such lower rate as may be specified by an applicable income tax
treaty.
Sale or Disposition of the TrUEPrS and ADSs. A Non-U.S. Holder will not be
subject to United States Federal income tax in respect of gain recognized on a
sale or other disposition of TrUEPrS or ADSs unless (i) the gain is
effectively connected with a trade or business of the Non-U.S. Holder in the
United States (and is attributable to a permanent establishment maintained in
the United States by such Non-U.S. Holder, if an applicable income tax treaty
so requires as a condition for such Non-U.S. Holder to be subject to United
States taxation on a net income basis in respect of gain from the sale or
other disposition of the TrUEPrS or ADSs) or (ii) in the case of a Non-U.S.
Holder who is an individual, such holder is present in the United States for
183 or more days in the taxable year of the sale and certain other conditions
apply. Effectively connected gains realized by a corporate Non-U.S. Holder may
also, under certain circumstances, be subject to an additional "branch
profits" tax at a 30% rate or such lower rate as may be specified by an
applicable income tax treaty.
Information Reporting and Backup Withholding Tax
In general, information reporting requirements will apply to payments of
dividends made within the United States by the Trust or any of its paying
agents on the TrUEPrS or, in the case of ADSs, by a U.S. paying agent or other
U.S. intermediary and "backup withholding" at a rate of 31% will apply to such
payments made to a U.S. Holder (other than a corporation or other exempt U.S.
Holder) unless the U.S. Holder furnishes its taxpayer identification number in
the manner required by United States law and applicable regulations, certifies
that such number is correct, certifies as to no loss or exemption from backup
withholding and meets certain other conditions. A Non-U.S. Holder will be
exempt from back-up withholding provided that certain certification
requirements are satisfied.
Payment of the proceeds from the disposition of TrUEPrS or ADSs to or
through the United States office of a broker is subject to both information
reporting and backup withholding unless the holder establishes an exemption
from information reporting and backup withholding. United States information
reporting and backup withholding generally will not apply to a payment made
outside the United States of the proceeds of a sale of TrUEPrS or ADSs through
an office outside the United States of a non-United States broker. However,
United States information reporting will apply to a payment made outside the
United States of the proceeds of a sale of TrUEPrS or ADSs through an office
outside the United States of a broker (i) that is a United States person, (ii)
that derives 50% or more of its gross income for a specified three year period
from the conduct of a trade or business in the United States, (iii) that is a
"controlled foreign corporation" as to the United States, or (iv) with respect
to payments made after December 31, 1999, that is a foreign partnership if, at
any time during its tax year, one or more of its partners are U.S. persons (as
defined in U.S. Treasury Regulations) who in the aggregate hold more than 50%
of the income or capital interest in the partnership or if, at any time during
its tax year, such foreign partnership is engaged in a United States trade or
business, unless the broker has documentary evidence in its files that the
holder or beneficial owner is not a United States person or the holder or
beneficial owner otherwise establishes an exemption. Backup withholding will
not apply to such payments unless the broker has actual knowledge that the
payee is a U.S. person.
29
<PAGE>
Any amounts withheld from a holder under the backup withholding rules will
be allowed as a refund or a credit against such holder's United States federal
income tax liability, provided the required information is furnished to the
Internal Revenue Service.
CERTAIN AUSTRALIAN TAX CONSIDERATIONS
The taxation discussion below of certain Australian tax consequences is
based on the advice of PricewaterhouseCoopers Securities Limited, Australia
and outlines certain Australian tax considerations for U.S. holders in
relation to the purchase, ownership and disposition of the TrUEPrs and the
acquisition, ownership and disposition of the ANZ Preference Shares
represented by the ADSs. The discussion is intended only as a descriptive
summary and does not purport to be a complete technical analysis or listing of
all potential Australian tax effects. This discussion is based upon laws,
regulations, rulings and decisions now in effect and is subject to changes in
Australian law, including in any double taxation convention between Australia
and the United States (the "Treaty"), including retroactive changes in
effective dates, or possible differing interpretations.
Persons considering the purchase of the TrUEPrS should consult their own tax
advisors concerning the application of Australia's tax laws to their
particular situations as well as any consequences of the purchase, ownership
and disposition of TrUEPrS or the ANZ Preference Shares represented by the
ADSs arising under the laws of any other taxing jurisdiction.
The Trust would not be treated as a resident of Australia for Australian
income tax purposes. As it is not in receipt of Australian source income it
will not be subject to Australian tax on income earned. Therefore, quarterly
distributions by the Trust to non-Australian resident holders of TrUEPrS will
not be subject to Australian tax whether by withholding or otherwise.
Upon an Exchange Event, the Trust will acquire ADSs and then immediately
deliver the ADSs to the holders of TrUEPrS. There should be no Australian tax
consequences to the Trust of the delivery of the ADSs to holders of TrUEPrS.
Alternatively, upon an Exchange Event, the Trust may receive cash repayment
of principal and interest due on the Debt Securities. No Australian tax will
be payable by the Trust on such receipts.
The sale of TrUEPrS or the ANZ Preference Shares represented by the ADSs may
generate assessable income to certain U.S. holders, such as banks, insurance
companies and other persons or institutions in the business of investment. The
provisions of the Treaty, however, are designed to ensure that this income,
less all allowable deductions, is subject to Australian tax only if the U.S.
holder who is a U.S. resident carries on business in Australia through a
permanent establishment and the income earned is effectively connected with
that permanent establishment.
The sale of TrUEPrS or ADSs by a U.S. holder will not generate a net capital
gain and therefore will not be subject to Australian capital gains tax unless:
. the ANZ Preference Shares are held by U.S. citizens or U.S. corporations
who are residents of Australia;
. the U.S. holder is a non-Australian resident but the U.S. holder and the
U.S. holder's associates together beneficially hold or at any time during
the five years prior to the sale held shares or interests in shares
representing ten percent or more in value of the issued capital of ANZ;
or
. the U.S. holder is a non-Australian resident but has at any time used the
TrUEPrS or ADSs in carrying on trade or business through a permanent
establishment in Australia.
and the consideration received for the TrUEPrS or the ADSs, (or their market
value, if the disposition is not at arm's length or for no consideration)
exceeds the U.S. holder's cost base in the TrUEPrS or the ADSs after that cost
base is adjusted, where appropriate, for the effect of inflation.
30
<PAGE>
The Australian income tax rate on capital gains is the same as the ordinary
income tax rate applicable to the relevant taxpayer, subject to capital gains
tax averaging where applicable. In the case of companies this rate is
presently 36%.
An individual who is a U.S. holder will be a resident of Australia if, for
example, that person:
. is domiciled in Australia, unless the person's permanent place of abode
is outside Australia; or
. has been in Australia for 183 days or more in a year of income unless
that person has a usual place of abode outside Australia and does not
intend to take up residence in Australia.
However, if that individual would be a resident of the United States for the
purposes of U.S. law, the Treaty allocates residence for the purposes of the
Treaty solely to the country in which the person maintains a permanent home
(or habitual abode) or with which the person has closer personal and economic
ties.
A corporation who is a U.S. holder will be a resident of Australia if it is
incorporated in Australia or if it carries on business in Australia and has
either its central management and control in Australia or its voting power
controlled by shareholders who are residents of Australia.
Where the U.S. holder acquires ADSs on the Exchange Date, there may be
Australian tax consequences in relation to dividends paid by that Australian
listed corporation. Dividends paid by ANZ may be paid as franked or unfranked
dividends. Australian corporations are required to provide shareholders with
notices detailing the extent to which the dividend is franked or unfranked and
the deductions (if any) of dividend withholding tax. Broadly, to the extent to
which those dividends are paid out of profits which have been subject to
Australian company income tax, they will be franked dividends. Fully franked
dividends paid to a non-resident will be exempt from Australian dividend
withholding tax. Unfranked or partially franked dividends will be subject to
Australian dividend withholding tax to the extent to which the dividend is
unfranked, unless a specific exemption is available.
The interaction of Australian income tax law and the Treaty limits the
Australian dividend withholding tax on unfranked or partially franked
dividends paid to a U.S. resident who is beneficially entitled to the dividend
to 15 percent of the unfranked part of the gross dividend. However, where the
U.S. resident carries on business in Australia through a permanent
establishment or performs independent personal services from a fixed base in
Australia and the holding is effectively connected with the permanent
establishment or fixed base, the 15 percent limit should not apply and a
dividend withholding tax at the rate of 30 percent should apply in respect of
such dividends in such circumstances. However, under Australian law an
Australian payer of dividends to a U.S. resident in such circumstances is only
obliged to withhold at the rate of 15 percent and, as a matter of policy, the
Australian Taxation Office does not seek to collect any further withholding
tax.
Subject to certain conditions, the terms of the ANZ Preference Shares
provide for holders to be grossed-up for Australian withholding tax on
payments on the ANZ Preference Shares being dividends or amounts deemed to be
dividends for Australian tax purposes.
No stamp, issue, registration or similar taxes are payable in Australia in
connection with the issue of TrUEPrS by the Trust or of ADSs. Transfers of ANZ
Preference Shares by U.S. holders would be subject to stamp duty.
There are no specific estate, inheritance or gift taxes or duties imposed in
Australia. In practice, no Revenue Authority in any State or Territory of
Australia should seek to recover stamp duty on any transfer of or agreement to
transfer ADSs provided that the instruments are not executed and the purchaser
of the ADSs is not resident in Australia.
31
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in a purchase agreement (the
"Purchase Agreement"), the Trust has agreed to sell to each of the
underwriters named below (the "Underwriters"), and each of the Underwriters,
for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley &
Co. Incorporated, PaineWebber Incorporated, Prudential Securities Incorporated
and Salomon Smith Barney Inc. are acting as representatives (the
"Representatives"), has severally agreed to purchase, the aggregate number of
TrUEPrS set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER TRUEPRS
----------- ----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............................................
Morgan Stanley & Co. Incorporated.................................
PaineWebber Incorporated..........................................
Prudential Securities Incorporated................................
Salomon Smith Barney Inc..........................................
----------
Total........................................................ 16,000,000
==========
</TABLE>
In the Purchase Agreement, the Underwriters named therein have agreed,
subject to the terms and conditions set forth therein, to purchase all of the
TrUEPrS being sold pursuant to the Purchase Agreement if any of such TrUEPrS
are purchased. Under certain circumstances, under the Purchase Agreement, the
commitments of non-defaulting Underwriters may be increased. In the event of a
failure to close, any funds debited from any investor's account maintained
with an Underwriter will be credited to such account and any funds received by
such Underwriter by check or money order from any investor will be returned to
such investor by check.
The Representatives have advised the Trust that the Underwriters propose to
offer the TrUEPrS offered hereby in the Offering to the public initially at
the public offering price set forth on the cover page of this Prospectus and
to certain dealers at such price less a concession not in excess of $ per
TrUEPrS; provided that such concession for sales of more than 10,000 TrUEPrS
to any single purchaser will be $ per TrUEPrS. The Underwriters may allow,
and such dealers may reallow, a discount not in excess of $ per TrUEPrS to
certain other dealers. After the initial public offering, the public offering
price, concession and discount may be changed. Investors must pay for any
TrUEPrS purchased in the initial public offering on or before , 1998.
The Trust has granted the Underwriters an option to purchase up to an
additional 2,396,000 TrUEPrS at the initial public offering price. Such
option, which will expire 30 days after the date of this Prospectus, may be
exercised solely to cover over-allotments. To the extent that the Underwriters
exercise such option, each of the Underwriters will have a firm commitment,
subject to certain conditions, to purchase from the Trust approximately the
same percentage of the option shares that the number of shares to be purchased
initially by that Underwriter is of the 16,000,000 TrUEPrS initially purchased
by the Underwriters.
In view of the fact that the proceeds of the sale of the TrUEPrS will
ultimately be invested in ADSs representing the ANZ Preference Shares, the
Purchase Agreement provides that ANZ will pay, as compensation (the
"Underwriters' Compensation") to the Underwriters, an amount in immediately
available funds of $ per TrUEPrS or $ in the aggregate (or $ in the
aggregate if the Underwriters' over-allotment option is exercised in full) for
the accounts of the several Underwriters; provided that such compensation for
sales of more than 10,000 TrUEPrS to any single purchaser will be $ per
TrUEPr and to the extent such sales are made, the actual amount of
Underwriters' Compensation will be less than the aggregate amounts specified
above.
The Underwriters do not intend to confirm sales of TrUEPrS offered hereby to
any accounts over which they exercise discretionary authority.
32
<PAGE>
Prior to the Offering, there has been no public market for the TrUEPrS. The
TrUEPrS have been approved for listing on the NYSE, subject to official notice
of issuance. Trading of the TrUEPrS on the NYSE is expected to commence within
the 30-day period after the Issue Date. The Representatives have advised the
Trust that they intend to make a market in the TrUEPrS prior to the
commencement of trading on the NYSE. The Representatives will have no
obligation to make a market in the TrUEPrS, however, and may cease market
making activities, if commenced, at any time. In connection with the listing,
the Underwriters will undertake that sales of TrUEPrS will meet the NYSE's
minimum distribution standards.
In view of the fact that the proceeds of the sale of the TrUEPrS will
ultimately be invested in ADSs representing the ANZ Preference Shares, the
Trust and ANZ have agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended, or to contribute to payments the Underwriters may be required to make
in respect thereof.
In connection with the formation of the Trust, ML IBK Positions, Inc., an
affiliate of Merrill Lynch, Pierce, Fenner & Smith Incorporated, subscribed
for and purchased 4,000 TrUEPrS for a purchase price of $100,000.
Until the distribution of the TrUEPrS is completed, rules of the Commission
may limit the ability of the Underwriters and any selling group members to bid
for and purchase the TrUEPrS. As an exception to these rules, the
Representatives are permitted to engage in certain transactions that stabilize
the price of the TrUEPrS. Such transactions consist of bids or purchases for
the purpose of pegging, fixing or maintaining the price of the TrUEPrS.
If the Underwriters create a short position in the TrUEPrS in connection
with the Offering, i.e., if they sell more TrUEPrS than are set forth on the
cover page of this Prospectus, the Representatives may reduce that short
position by purchasing TrUEPrS in the open market. The Representatives may
also elect to reduce any short position by exercising all or part of the over-
allotment option described above.
The Representatives may also impose a penalty bid on certain Underwriters
and selling group members. This means that if the Representatives purchase
TrUEPrS in the open market to reduce the Underwriters' short position or to
stabilize the price of the TrUEPrS, they may reclaim the amount of the selling
concession from the Underwriters and any selling group members who sold those
TrUEPrS as part of the Offering.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher
than it might be in the absence of such purchases. The imposition of a penalty
bid might also have an effect on the price of a security to the extent that it
were to discourage resales of the security.
Neither the Trust nor any of the Underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the
transactions described above may have on the price of the TrUEPrS. In
addition, neither the Trust nor any of the Underwriters makes any
representation that the Representatives will engage in such transactions or
that such transactions, once commenced, will not be discontinued without
notice.
The Trust has not authorized, or taken any action to cause, the issue or
distribution in the Commonwealth of Australia, any of its States, territories
or possessions or any political subdivision thereof ("Australia"), or to any
resident of Australia, of this Prospectus or any other document inviting
applications or offers to subscribe for or purchase the TrUEPrS offered hereby
or offering such TrUEPrS for subscription or purchase and, accordingly,
neither this Prospectus (whether in draft or definitive form) nor any such
other document may be issued or distributed in Australia or to any resident of
Australia for the purpose of inviting applications or offers to subscribe for
or purchase the TrUEPrS offered hereby.
No prospectus in relation to the TrUEPrS has been lodged with or registered
by the Australian Securities and Investments Commission. In connection with
the distribution of the TrUEPrS, each of the several Underwriters will
represent and agree that it: (a) has not (directly or indirectly) offered for
subscription or purchase or issued invitations to subscribe for or purchase
nor has it sold the TrUEPrS; (b) will not (directly or indirectly) offer for
subscription or purchase or issue invitations to subscribe for or purchase or
sell the TrUEPrS; and (c) has not distributed and will not distribute any
draft or definitive prospectus, advertisement or other offering material, in
each case in Australia or to any resident of Australia (including corporations
and other entities organized under the laws of Australia but not including a
permanent establishment of such corporations or other entities located outside
Australia).
33
<PAGE>
Each Underwriter has also in the Purchase Agreement represented and agreed
that:
(a) it has not offered or sold and prior to the date six months after the
date of issue of the TrUEPrS will not offer or sell any TrUEPrS to persons
in the United Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
(b) it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in relation
to the TrUEPrS in, from or otherwise involving the United Kingdom; and
(c) it has only issued or passed on, and will only issue or pass on, in
the United Kingdom any document received by it in connection with the issue
of the TrUEPrS to a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom the document may otherwise lawfully be
issued or passed on.
Certain of the Underwriters render investment banking and other financial
services to ANZ from time to time.
LEGAL MATTERS
Certain legal matters will be passed upon for the Trust and the Underwriters
by their counsel, Brown & Wood llp, New York, New York. Certain matters of
Delaware law will be passed upon for the Trust by Richards, Layton & Finger
P.A., Wilmington, Delaware, special Delaware counsel to the Trust. See also
"Taxation."
EXPERTS
The statement of assets and liabilities included in this Prospectus has been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
opinion appearing herein, and has been included in reliance upon such opinion
given on the authority of said firm as experts in auditing and accounting.
ADDITIONAL INFORMATION
The Trust has filed with the Commission, Washington, D.C. 20549, a
Registration Statement on Form N-2 under the Securities Act with respect to
the TrUEPrS offered hereby. Further information concerning the TrUEPrS and the
Trust may be found in the Registration Statement, of which this Prospectus
constitutes a part. The Registration Statement may be inspected without charge
at the public reference facilities maintained by the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all or any part
thereof may be obtained from such office after payment of the fees prescribed
by the Commission. The Commission maintains a Web site at http://www.sec.gov
containing reports, proxy and information statements and other information
regarding registrants, such as the Trust, that file electronically with the
Commission.
34
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Trustees and Shareholder of ANZ Exchangeable Preferred Trust:
We have audited the accompanying statement of assets and liabilities of ANZ
Exchangeable Preferred Trust as of September 1, 1998. This financial statement
is the responsibility of the Trust's management. Our responsibility is to
express an opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statement is free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statement. An audit
also includes assessing the accounting principles used and significant
estimates made by the Trust's management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, such statement of assets and liabilities presents fairly, in
all material respects, the financial position of ANZ Exchangeable Preferred
Trust as of September 1, 1998 in conformity with generally accepted accounting
principles.
Deloitte & Touche LLP
Princeton, New Jersey
September 1, 1998
35
<PAGE>
ANZ EXCHANGEABLE PREFERRED TRUST
STATEMENT OF ASSETS AND LIABILITIES
SEPTEMBER 1, 1998
ASSETS
<TABLE>
<S> <C>
Cash.................................................................. $100,000
--------
Total Assets.......................................................... $100,000
========
LIABILITIES
Total Liabilities..................................................... $ 0
========
NET ASSETS............................................................ $100,000
========
NET ASSET VALUE PER TRUEPRS
4,000 TrUEPrS issued and outstanding (Note 3)......................... $ 25
========
</TABLE>
- --------
(1) The Trust was created as a Delaware business trust on July 8, 1998 and has
had no operations other than matters relating to its organization and
registration as a non-diversified, closed-end management investment
company under the U.S. Investment Company Act of 1940, as amended. Costs
incurred in connection with the organization of the Trust will be paid by
the Trust out of the facility fee paid to the Trust by the U.K. Company in
connection with the investment by the Trust in the Debt Securities. The
ongoing administrative and other expenses of the Trust will be paid by the
Jersey Holding Company pursuant to the Trust Expense Agreement. Any
expenses of the Trust not covered by the Trust's arrangements with the
Jersey Holding Company under the Trust Expense Agreement will be paid by
the ANZ Affiliate pursuant to the Expense and Indemnity Agreement.
(2) Offering expenses will be payable upon completion of the Offering and will
be paid by 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.
(3) On September 1, 1998, the Trust issued 4,000 TrUEPrS to ML IBK Positions,
Inc., an affiliate of Merrill Lynch, Pierce, Fenner & Smith Incorporated,
in consideration for a purchase price of $100,000.
36
<PAGE>
THE FOLLOWING PROSPECTUS OF AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
IS ATTACHED AND DELIVERED FOR CONVENIENCE OF REFERENCE ONLY. THE PROSPECTUS
OF AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED DOES NOT CONSTITUTE A
PART OF THE FOREGOING PROSPECTUS OF ANZ EXCHANGEABLE PREFERRED TRUST, NOR IS
IT INCORPORATED BY REFERENCE THEREIN.
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING DESCRIBED HEREIN AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE TRUST OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURI-
TIES OTHER THAN THOSE SPECIFICALLY OFFERED HEREBY, OR OF ANY SECURITIES OF-
FERED HEREBY, IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
AN OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS
PROSPECTUS OR IN THE AFFAIRS OF THE TRUST SINCE THE DATE HEREOF OR SINCE THE
DATES AS OF WHICH INFORMATION IS SET FORTH HEREIN. IN THE EVENT THAT ANY SUCH
CHANGE SHALL OCCUR DURING THE PERIOD IN WHICH APPLICABLE LAW REQUIRES DELIVERY
OF THIS PROSPECTUS, THIS PROSPECTUS WILL BE AMENDED OR SUPPLEMENTED ACCORDING-
LY.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary......................................................... 3
Fee Table.................................................................. 10
Structural Diagram......................................................... 11
The Trust.................................................................. 12
Use of Proceeds and Collateral Arrangements................................ 12
Investment Objective and Policies.......................................... 13
Investment Restrictions.................................................... 19
Risk Factors............................................................... 19
Description of the TrUEPrS................................................. 21
Trustees................................................................... 24
Management Arrangements.................................................... 24
Dividends and Distributions................................................ 26
Net Asset Value............................................................ 27
Taxation................................................................... 27
Underwriting............................................................... 32
Legal Matters.............................................................. 34
Experts.................................................................... 34
Additional Information..................................................... 34
Independent Auditors' Report............................................... 35
Statement of Assets and Liabilities........................................ 36
</TABLE>
Prospectus relating to Preference Shares
of Australia and New Zealand Banking Group Limited
---------------
UNTIL , 1998 (25 DAYS AFTER THE COMMENCEMENT OF THE OFFERING), ALL DEALERS
EFFECTING TRANSACTIONS IN THE TRUEPRS, WHETHER OR NOT PARTICIPATING IN THIS
DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS DELIVERY REQUIRE-
MENT IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
16,000,000 TrUEPrS(SM)
ANZ EXCHANGEABLE
PREFERRED TRUST
---------------
PROSPECTUS
---------------
MERRILL LYNCH & CO.
MORGAN STANLEY DEAN WITTER
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY
SEPTEMBER , 1998
(SM) Service mark of Merrill Lynch & Co., Inc.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART C
OTHER INFORMATION
ITEM 24. FINANCIAL STATEMENTS AND EXHIBITS
1. FINANCIAL STATEMENTS
Independent Auditors' Report
Statement of Assets and Liabilities as of September 1, 1998
2. EXHIBITS
<TABLE>
<C> <S>
(a)(1) Trust Agreement*
(2) Form of Second Amended and Restated Trust Agreement**
(3) Restated Certificate of Trust*
(b) Not applicable
(c) Not applicable
Form of Specimen certificate for TrUEPrS (included in Exhibit
(d)(1) (a)(2))**
(2) Portions of the Second Amended and Restated Trust Agreement of the
Registrant defining the rights of Holders of TrUEPrS+
(e) Not applicable
(f) Not applicable
(g) Not applicable
(h) Form of Purchase Agreement**
(i) Not applicable
(j) Form of Custodian Agreement**
(k)(1) Form of Administration Agreement**
(2) Form of Paying Agent Agreement**
(3) Form of Specimen for Debt Securities**
(4) Form of ADRs Security and Pledge Agreement**
(5) Form of Jersey Preference Shares Security and Pledge Agreement**
(6) Form of Trust Reimbursement Agreement**
(7) Form of Trust Expense Agreement**
(8) Form of Expense and Indemnity Agreement**
(9) Form of Debt Securities Subscription Agreement**
(10) Form of ADSs Purchase Contract**
(11) Form of Distribution Trust Agreement**
(l) Opinion and Consent of Brown & Wood LLP, counsel to the Trust**
(m) Not applicable
(n)(1) Tax Opinion and Consent of Sullivan & Cromwell**
(2) Tax Opinion and Consent of PricewaterhouseCoopers Securities
Limited, Australian tax adviser to the Trust**
Consent of Deloitte & Touche LLP, independent auditors for the
(3) Trust*
(o) Not applicable
(p) Form of TrUEPrS Subscription Agreement**
(q) Not applicable
(r) Not applicable
</TABLE>
- --------
+ Reference is made to Article III (Section 3.2), Article IV, Article V and
Article VII (Sections 7.1 and 7.6) of the Trust's Second Amended and
Restated Trust Agreement filed as Exhibit (a)(2) to this Registration
Statement
* Previously filed.
** Filed herewith.
ITEM 25. MARKETING ARRANGEMENTS
See Exhibit (h)(1) to this Registration Statement.
C-1
<PAGE>
ITEM 26. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be incurred in connection with the offering described in
this Registration Statement will be paid by the Trust out of the facility fee
paid on the Issue Date to the Trust by the U.K. Company in connection with the
investment by the Trust in the Debt Securities.
ITEM 27. PERSON CONTROLLED BY OR UNDER COMMON CONTROL WITH REGISTRANT
The Trust will be internally managed and will not have an investment
adviser. The information in the Prospectus under the caption "Management
Arrangements" is incorporated herein by reference.
ITEM 28. NUMBER OF HOLDERS OF SECURITIES
There will be one record holder of the TrUEPrS as of the effective date of
this Registration Statement.
ITEM 29. INDEMNIFICATION
Section 6.06 of the Second Amended and Restated Trust Agreement and Section
6 of the Purchase Agreement provide for indemnification.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "1933 Act"), may be permitted to trustees, officers
and controlling persons of the Registrant, pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that in the opinion
of the Securities and Exchange Commission (the "Commission") such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a trustee, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such trustee, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
ITEM 30. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
The Trust is internally managed and does not have an investment adviser.
ITEM 31. LOCATION OF ACCOUNTS AND RECORDS
All accounts, books and other documents required to be maintained by Section
31(a) of the Investment Company Act of 1940, as amended, and the rules
promulgated thereunder are maintained at the offices of the Registrant (850
Library Avenue, Suite 204, Newark, Delaware 19715), its custodian (101 Barclay
Street, New York, New York 10286) and its paying agent (101 Barclay Street,
New York, New York 10286).
ITEM 32. MANAGEMENT SERVICES
Not applicable.
ITEM 33. UNDERTAKINGS
(a) The Registrant hereby undertakes to suspend the offering of the shares
covered hereby until it amends its prospectuses contained herein if (1)
subsequent to the effective date of this Registration Statement, its net asset
value per share declines more than 10 percent from its net asset value per
share as of the effective date of the Registration Statement or (2) the net
asset value per share increases to an amount greater than its net proceeds as
stated in the prospectuses contained herein.
C-2
<PAGE>
(b) The Registrant hereby undertakes that (i) for purpose of determining any
liability under the 1933 Act, the information omitted from the form of
prospectuses filed as part of this Registration Statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the registrant under
Rule 497(h) under the 1933 Act shall be deemed to be part of this registration
statement as of the time it was declared effective; (ii) for the purpose of
determining any liability under the 1933 Act, each post-effective amendment
that contains a form of prospectus shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of the
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND THE
INVESTMENT COMPANY ACT OF 1940, THE REGISTRANT HAS DULY CAUSED THIS AMENDMENT
TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEWARK, STATE OF DELAWARE, ON THE
14TH DAY OF SEPTEMBER, 1998.
ANZ Exchangeable Preferred Trust
/s/ Donald J. Puglisi
By: _________________________________
DONALD J. PUGLISI
MANAGING TRUSTEE
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS,
IN THE CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<S> <C>
NAME TITLE
DATE
/s/ Donald J. Puglisi Managing Trustee September 14, 1998
- -------------------------------------
DONALD J. PUGLISI
William R. Latham III* Trustee
- -------------------------------------
WILLIAM R. LATHAM III
James B. O'Neill* Trustee
- -------------------------------------
JAMES B. O'NEILL
*By: /s/ Donald J. Puglisi September 14, 1998
- -------------------------------------
DONALD J. PUGLISI
ATTORNEY-IN-FACT
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
(a)(1) Trust Agreement*
(2) Form of Second Amended and Restated Trust Agreement**
(3) Restated Certificate of Trust*
(b) Not applicable
(c) Not applicable
(d)(1) Form of Specimen certificate for TrUEPrS (included in Exhibit
(a)(2))**
(2) Portions of the Second Amended and Restated Trust Agreement
of the Registrant
defining the rights of Holders of TrUEPrS+
(e) Not applicable
(f) Not applicable
(g) Not applicable
(h) Form of Purchase Agreement**
(i) Not applicable
(j) Form of Custodian Agreement**
(k)(1) Form of Administration Agreement**
(2) Form of Paying Agent Agreement**
(3) Form of Specimen for Debt Securities**
(4) Form of ADRs Security and Pledge Agreement**
(5) Form of Jersey Preference Shares Security and Pledge
Agreement**
(6) Form of Trust Reimbursement Agreement**
(7) Form of Trust Expense Agreement**
(8) Form of Expense and Indemnity Agreement**
(9) Form of Debt Securities Subscription Agreement**
(10) Form of ADSs Purchase Contract**
(11) Form of Distribution Trust Agreement**
(l) Opinion and Consent of Brown & Wood LLP, counsel to the
Trust**
(m) Not applicable
(n)(1) Tax Opinion and Consent of Sullivan & Cromwell**
(2) Tax Opinion and Consent of PricewaterhouseCoopers Securities
Limited, Australian tax adviser to the Trust**
(3) Consent of Deloitte & Touche LLP, independent auditors for
the Trust*
(o) Not applicable
(p) Form of TrUEPrS Subscription Agreement**
(q) Not applicable
(r) Not applicable
</TABLE>
- --------
+ Reference is made to Article III (Section 3.2), Article IV, Article V and
Article VII (Sections 7.1 and 7.6) of the Trust's Second Amended and
Restated Trust Agreement filed as Exhibit (a)(2) to this Registration
Statement.
*Previously filed.
**Filed herewith.
<PAGE>
Exhibit 99(a)(2)
SECOND AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
ANZ EXCHANGEABLE PREFERRED TRUST
Dated as of September __, 1998
<PAGE>
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................................................ 8
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........... 9
Section 2.06. PORTFOLIO ACQUISITION............................... 11
Section 2.07. PORTFOLIO ADMINISTRATION............................ 11
Section 2.08. LIMITATIONS ON TRUSTEES' POWERS..................... 12
ARTICLE III.
ACCOUNTS AND PAYMENTS
Section 3.01. THE TRUST ACCOUNT................................... 13
Section 3.02. DISTRIBUTIONS TO HOLDERS............................ 13
Section 3.03. SEGREGATION......................................... 13
Section 3.04. EXPENSES............................................ 13
Section 3.05. APPLICATION OF PAYMENTS UNDER TRUST EXPENSE
AGREEMENT AND EXPENSE AND INDEMNITY AGREEMENT....... 14
ARTICLE IV.
REDEMPTION
Section 4.01. REDEMPTION.......................................... 14
ARTICLE V.
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF TrUEPrS
Section 5.01. FORM OF CERTIFICATE................................ 14
Section 5.02. TRANSFER OF TrUEPrS; ISSUANCE, TRANSFER AND
EXCHANGE OF CERTIFICATES........................... 15
Section 5.03. REPLACEMENT OF CERTIFICATES........................ 16
Section 5.04. LIMITATION ON LIABILITY............................ 16
Section 5.05. GENERAL PROVISIONS REGARDING THE TrUEPrS........... 16
i
<PAGE>
ARTICLE VI.
TRUSTEES
Section 6.01. TRUSTEES........................................... 17
Section 6.02. VACANCIES.......................................... 17
Section 6.03. POWERS............................................. 17
Section 6.04. MEETINGS........................................... 18
Section 6.05. RESIGNATION AND REMOVAL............................ 18
Section 6.06. LIABILITY.......................................... 18
Section 6.07. COMPENSATION....................................... 19
ARTICLE VII.
MISCELLANEOUS
Section 7.01. MEETINGS OF HOLDERS................................ 19
Section 7.02. BOOKS AND RECORDS; REPORTS......................... 20
Section 7.03. DISSOLUTION........................................ 21
Section 7.04. AMENDMENT AND WAIVER............................... 21
Section 7.05. ACCOUNTANTS........................................ 22
Section 7.06. NATURE OF HOLDER'S INTEREST........................ 23
Section 7.07. NO RECOURSE........................................ 23
Section 7.08. ENFORCEMENT OF RIGHTS.............................. 23
Section 7.09. DELAWARE LAW TO GOVERN............................. 24
Section 7.10. NOTICES............................................ 24
Section 7.11. SEVERABILITY....................................... 24
Section 7.12. COUNTERPARTS....................................... 24
Section 7.13. SUCCESSORS AND ASSIGNS............................. 24
ii
<PAGE>
SECOND AMENDED AND RESTATED TRUST AGREEMENT
This Second Amended and Restated Trust Agreement, dated as of September
__, 1998 (the "Trust Agreement"), by and among ML IBK Positions, Inc., as
sponsor (the "Sponsor"), Donald J. Puglisi, William R. Latham III and James B.
O'Neill, as trustees (the "Trustees"), and the Holders (as defined herein) from
time to time, constituting ANZ Exchangeable Preferred Trust (the "Trust").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Emma Nakakuki, as depositor (the "Depositor") and the Trustees,
have previously entered into a Trust Agreement dated as of July 6, 1998 (the
"Original Agreement"), and the Trustees have filed a Certificate of Trust, dated
as of July 6, 1998, with the office of the Secretary of State of the State of
Delaware on July 8, 1998 and have filed a Restated Certificate of Trust on
September 1, 1998, thus creating ANZ Exchangeable Preferred Trust (formerly
known as ABC Exchangeable Preferred Trust);
WHEREAS, on September 1, 1998 the Depositor and the parties to this Trust
Agreement amended and restated the Original Agreement (the "First Restatement");
WHEREAS, the Depositor, simultaneously with the execution of the First
Restatement, transferred all of her right, title and interest in and to ANZ
Exchangeable Preferred Trust to the Sponsor;
WHEREAS, in the First Restatement the Trustees ratified and approved the
transfer of the interest of the Depositor in ANZ Exchangeable Preferred Trust to
the Sponsor;
WHEREAS, the Trust, which was previously known as ABC Exchangeable
Preferred Trust, changed its name to ANZ Exchangeable Preferred Trust pursuant
to a Restated Certificate of Trust that was dated September 1, 1998 and filed
with the Secretary of State of the State of Delaware on September 1, 1998;
WHEREAS, concurrently with the execution and delivery of the First
Restatement, the Trust 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);
WHEREAS, the parties hereto desire to amend and restate the First
Restatement in its entirety; and
NOW, THEREFORE, the parties hereto agree to amend and restate the First
Restatement in its entirety as provided herein. Upon the execution and delivery
of counterpart signature pages hereto by the parties hereto, the First
Restatement will be automatically amended and restated in its entirety to read
as provided herein.
- ------------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
1
<PAGE>
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 four
ANZ Preference Shares.
"ADSs Purchase Contract" means the ADSs Purchase Contract dated as of the
first Issue Date between the Trust and the Jersey Subsidiary.
"ANZ Affiliate" means ANZMB Limited, a limited liability company
incorporated under the laws of England and Wales and an affiliate of the
Company.
"ANZ Borrower" means each direct or indirect wholly-owned subsidiary of ANZ
and/or ANZ or a branch of ANZ, in each case to whom an ANZ Loan has been made
or assigned.
"ANZ Loan" means each outstanding loan made by the Distribution Trust to an
ANZ Borrower, which matures on or about October 15, 2052.
"ANZ Loan Agreement" means each agreement between the Distribution Trust
and an ANZ Borrower pursuant to which a Distribution Loan is made.
"ANZ Preference Shares" means the fully paid non-cumulative preference
shares, liquidation preference US$6.25 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.
"APRA" means the Australian Prudential Regulation Authority, or any
successor or replacement body to which the Company is required to report the
capital adequacy ratios referred to in the definition of Exchange Event.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday or Friday
which is not a day on which banking institutions in Sydney, Australia, New York,
New York or any other city or cities in which the
2
<PAGE>
principal place of business of any ANZ Borrower is located from time to time
(initially Wellington, New Zealand) are authorized or obliged by law or
executive order to close.
"Certificate" means any certificate evidencing the ownership of TrUEPrS
substantially in the form of Exhibit A1 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, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Trust Agreement such Commission is not existing or
performing the duties now assigned to it, then the body performing such duties
on such date.
"Company" means Australia and New Zealand Banking Group Limited, 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.
"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 dated as of the first Original Issue Date 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 dated as of the first
Original Issue Date between the Company and The Bank of New York or its
successor, as depositary for the ANZ Preference Shares (the "Depositary").
"Depositor" has the meaning specified in the recitals hereof.
3
<PAGE>
"Distribution Trust" means the business trust established under the laws of
the State of Delaware pursuant to a distribution trust agreement among the U.K.
Company, the depositor, the distribution trustees, the administrators thereof
and the ANZ Australian Affiliate named therein.
"Dividend Payment Date" means January 15, April 15, July 15 and October 15
of each year, commencing October 15, 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 earlier to occur of any of the following dates
or events which shall constitute an "Exchange Event" as of the applicable
"Exchange Date" specified below:
(i) October 15, 2047 or the date of any earlier redemption or mandatory
repurchase ("Buy-Back") of the ANZ 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;
(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 Tier 1 Capital Ratio or the Total Capital
Adequacy Ratio of the Company (either as reported quarterly by the
Company to APRA or as determined at any time by APRA in its absolute
discretion) is below 4% or 8%, respectively, or, in each case, such
lesser percentage as may be prescribed by APRA for the Company at
the time (the applicable percentage in each such case being the
"Required Percentage"), and is not increased by the Company to at
least the Required Percentage within 90 days after the date on which
the Company makes such quarterly report or receives notice from APRA
of such determination by APRA, as applicable, 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
4
<PAGE>
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 (as specified in the constituent
documents) of the Distribution Trust, in which case the Exchange
Date will be the date on which the 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 on which 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;
(viii) any ANZ 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 any ANZ
Borrower ceases to be the Company or a direct or indirect wholly-
owned subsidiary or branch of the Company;
(ix) (A) a proceeding is commenced by the Company, the U.K. Company, the
Jersey Holding Company, the Jersey Charitable Trust, the Jersey
Subsidiary, the Distribution Trust or the ANZ Borrower (each, a
"Relevant Entity") or a person that controls the Relevant Entity for
an order that the Relevant Entity be wound up 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 the 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 hereof 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
(x) 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 ANZ
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
5
<PAGE>
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, any ANZ Borrower may, with the consent of
the Distribution Trust, assign its ANZ Loan or the Distribution Trust may
replace its ANZ Loan with another loan, in each case, to the Company or to
another direct or indirect wholly-owned subsidiary or branch of the Company with
prospective payment terms identical to, and other terms substantially the same
as, those of such ANZ Loan, in which case the Company or such other subsidiary
or branch and loan will be deemed to be such ANZ Borrower and the ANZ Loan,
respectively, and any such action will not constitute an Exchange Event.
"Exchange Rate Condition" means, in connection with any Exchange Event
resulting from the redemption or Buy-Back of the ANZ 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 Kingdom (expressed in (Pounds)/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 date on which ANZ Preference
Shares are originally issued.
"Expense and Indemnity Agreement" means the Expense and Indemnity Agreement
dated as of the first Issue Date among the Trust, the ANZ 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 January 15, April 15, July 15 and October 15
of each year, commencing October 15, 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 The Carlotta 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.
6
<PAGE>
"Jersey Holding Company" means Carlotta (Holdings) Limited, an exempt
company established under the laws of, and domiciled in, Jersey, the Channel
Islands, which holds all of the U.K. Company's ordinary shares.
"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 Carlotta (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.
"Original Agreement" has the meaning specified in the recitals 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(b) or (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, January 1,
April 1, July 1 or October 1, as the case may be, immediately preceding such
Dividend Payment Date; provided however, that the record date for the first
dividend distribution will be October 1, 1998 or with respect to TrUEPrS issued
after October 1, 1998 and before October 15, 1998, the date of issuance thereof.
"Registration Statement" means the Registration Statement on Form N-2
(Registration Nos. 333-58751 and 811-08865) of the Trust, as amended.
"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.
7
<PAGE>
"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 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 introductory paragraph of this
Trust Agreement.
"Tier 1 capital" means capital which is regarded as "tier 1 capital" for
the purposes of the capital adequacy guidelines of APRA.
"Tier 1 Capital Ratio" means the ratio of Tier 1 capital to risk weighted
assets (on a consolidated group basis) prescribed by APRA in its capital
adequacy guidelines for Australian banks, as modified from time to time.
"Total Capital Adequacy Ratio" means the total capital adequacy ratio as
prescribed by APRA 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 1, 1998, between the Trust and the Sponsor, as amended
pursuant to the terms thereof.
"Trust" has the meaning specified in the introductory paragraph of 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.
"Trust Reimbursement Agreement" means the Trust Reimbursement Agreement
between the Trust and Merrill Lynch & Co., Inc., as amended pursuant to the
terms thereof.
8
<PAGE>
"Trustees" has the meaning specified in the introductory paragraph of this
Trust Agreement.
"U.K. Company" means Carlotta (UK) Company, a special purpose unlimited
company incorporated under the laws of England and Wales, which will hold all of
the Jersey Subsidiary's ordinary shares unless and until an Exchange Date with
respect to an Exchange Event resulting from the redemption or Buy-Back of the
ANZ Preference Shares for cash with respect to which an Exchange Rate Condition
is not satisfied.
"Underwriters" means the several Underwriters named in the Purchase
Agreement.
ARTICLE II.
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.01. NAME. The Trust is named "ANZ 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, 850 Library Avenue, Suite 204, Newark, Delaware 19715.
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.
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:
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(a) 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 TrUEPrS Subscription Agreement, the Debt Securities
Subscription Agreement, the ADSs Purchase Contract and the License 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
22,996,000 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 the purposes of the Trust, subject to the provisions
hereof and applicable law, including, without limitation, the Investment Company
Act;
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(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 ANZ 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 or Buy-Back of the ANZ Preference Shares 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 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;
(b) to enter into the ADSs Purchase Contract and, (1) if the Exchange
Event does not result from the redemption or Buy-Back of the ANZ Preference
Shares for cash, to (A) apply
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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 or Buy-Back of the ANZ 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 or Buy-Back of the ANZ 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
in respect of which interest on the Debt Securities has been paid or provided
for in full 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.
(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.
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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 options;
(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 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
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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 Merrill Lynch & 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 will be paid by
the Administrator on behalf of the Trust out of funds paid by the ANZ Affiliate
pursuant to the Expense and Indemnity Agreement.
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 ANZ Affiliate pursuant to the Expense and Indemnity Agreement as an
Additional Indemnity Fee (as defined in such agreement).
ARTICLE IV.
REDEMPTION
Section 4.01. REDEMPTION. The Trustees shall have no right or obligation
to redeem TrUEPrS.
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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 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
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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.
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
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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
bona fide 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 (S)3803(a) of the
Delaware Business Trust Act, 12 Del. C. (S)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 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
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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 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.
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<PAGE>
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 each January 15, April 15, July 15 and October 15 of each year,
provided the first quarterly fee of $900 for October 15, 1998 shall be payable
at Closing Time. The Managing Trustee, other than a Managing Trustee who is a
director, officer or employee of the Sponsor, any Underwriter or any affiliate
thereof, shall receive an additional quarterly fee of $300 payable on January
15, April 15, July 15 and October 15 of each year, provided the first additional
quarterly fee of $300 for October 15, 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
19
<PAGE>
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)(l) 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 ANZ Preference Shares are
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 ADSs or the ANZ 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 ANZ 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
20
<PAGE>
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 ANZ
Preference Shares.
Such vote shall be taken a sufficient time before the vote of the ADSs
or the ANZ 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 ANZ 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 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.
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<PAGE>
(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. 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 Joseph P. Kennedy Sr., the
former United States Ambassador to the Court of St. James, 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(a) 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, (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 and 3.02 hereof or in the voting
requirements set forth in Section 7.01 hereof or this Section 7.04 or (v) in
such a 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.
22
<PAGE>
(d) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder,
the Company and the ANZ 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.
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
23
<PAGE>
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, North
Tower, New York, New York 10281, 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
c/o The Bank of New York at 101 Barclay Street, New York, New York 10286, 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 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. Notice to
be given to the ANZ Affiliate pursuant to Section 7.04(d) shall be duly given if
mailed or delivered to Minerva House, Montague Close, London SE1 9DH, England,
or at such other address as shall be specified by the ANZ Affiliate to the
parties hereto in writing. Copies of any notices, demands, directions or
instructions given to
24
<PAGE>
the Sponsor, the Trust, the Trustees or the Holders shall be mailed or delivered
to the Company at Level 14, 530 Collins Street, Melbourne, VIC 3000, Australia,
Attn: Company Secretary, or at such other address as shall be specified to the
parties hereto in writing.
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
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
ML IBK POSITIONS, INC.
By:__________________________________
Name:
Title:
TRUSTEES:
____________________________________________
Name: Donald J. Puglisi
Address: 850 Library Avenue, Suite 204
Newark, Delaware 19715
____________________________________________
Name: William R. Latham III
Address: 850 Library Avenue, Suite 204
Newark, Delaware 19715
____________________________________________
Name: James B. O'Neill
Address: 850 Library Avenue, Suite 204
Newark, Delaware 19715
26
<PAGE>
EXHIBIT A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ANZ 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
ANZ EXCHANGEABLE PREFERRED TRUST
CUSIP NO. ______________
NO._______________________ _____________________ TRUST UNITS
EXCHANGEABLE FOR PREFERENCE SHARES(SM)
THIS CERTIFIES THAT CEDE & CO. IS THE RECORD OWNER OF ___________ TRUST UNITS
EXCHANGEABLE FOR PREFERENCE SHARES ("TrUEPrS(SM)") CONSTITUTING A PROPORTIONATE
UNDIVIDED BENEFICIAL INTEREST IN THE ASSETS OF ANZ 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, 101 BARCLAY STREET, NEW YORK, NEW YORK 10286. 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
- -------------------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
A-1-1
<PAGE>
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.
ANZ Exchangeable Preferred Trust
Dated: __________________, 1998
By: ______________________________________
Donald J. Puglisi
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK
as Paying Agent
By: ____________________________
Authorized Signature
A-1-2
<PAGE>
EXHIBIT A-2
ANZ EXCHANGEABLE PREFERRED TRUST
NO. ____________ _________ TRUST UNITS
EXCHANGEABLE FOR PREFERENCE SHARES(SM)
CUSIP NO. ______________
THIS CERTIFIES THAT ________ IS THE RECORD OWNER OF _______ FULLY PAID AND NON-
ASSESSABLE TRUST UNITS EXCHANGEABLE FOR PREFERENCE SHARES ("TrUEPrS(SM)")
CONSTITUTING A PROPORTIONATE UNDIVIDED BENEFICIAL INTEREST IN THE ASSETS OF ANZ
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, 101 BARCLAY STREET, NEW YORK, NEW YORK
10286. 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:
ANZ EXCHANGEABLE PREFERRED TRUST
By:
______________________________
Donald J. Puglisi
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK
as Paying Agent
By: ______________________________
Authorized Signature
- ----------------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
A-2-1
<PAGE>
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:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT--___Custodian___ UNIF TRAN MIN ACT--___Custodian__
TEN ENT--as tenants by the entireties (Cust) (Minor) (Cust) (Minor)
JT TEN-- as joint tenants with right under Uniform Gifts to under Uniform Transfers to
of survivorship and not as Minors Act _________ Minors Act _________
tenants in common (State) (State)
</TABLE>
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
<PAGE>
Exhibit 99(H)
ANZ EXCHANGEABLE PREFERRED TRUST
U.S.$ _______________
TRUST UNITS EXCHANGEABLE FOR PREFERENCE SHARES(SM)
("TrUEPrS(SM)")
PURCHASE AGREEMENT
Dated: September __, 1998
___________________________
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
Table of Contents
Page
----
SECTION 1. Representations and Warranties......................... 5
SECTION 2. Sale and Delivery to Underwriters; Closing............. 17
SECTION 3. Covenants.............................................. 17
SECTION 4. Payment of Expenses.................................... 17
SECTION 5. Conditions of Underwriters' Obligations................ 17
SECTION 6. Indemnification........................................ 30
SECTION 7. Contribution........................................... 33
SECTION 8. Representations, Warranties and Agreements To Survive.. 35
SECTION 9. Termination of Agreement............................... 36
SECTION 10. Default By One Or More Of The Underwriters............ 36
SECTION 11. Notices............................................... 37
SECTION 12. Parties............................................... 37
SECTION 13. Governing Law and Time................................ 37
SECTION 14. Consent to Jurisdiction............................... 37
SECTION 15. Judgment Currency..................................... 38
SECTION 16. Effect of Headings.................................... 38
i
<PAGE>
ANZ EXCHANGEABLE PREFERRED TRUST
TRUST UNITS EXCHANGEABLE FOR PREFERENCE SHARES(SM)
("TrUEPrS(SM)")
PURCHASE AGREEMENT
September ___, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Smith Barney Inc.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
ANZ Exchangeable Preferred Trust, a Delaware business trust (the "Trust"),
and Australia and New Zealand Banking Group Limited, Australia Company Number
005 357 522, a corporation organized under the laws of the State of Victoria,
Commonwealth of Australia (the "Company"), confirm their respective agreements
with each other and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch, Morgan Stanley & Co. Incorporated, PaineWebber
Incorporated, Prudential Securities Incorporated and Salomon Smith Barney Inc.
are acting as representatives (in such capacity, the "Representatives"), with
respect to (i) the issue and sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective Trust Units
Exchangeable for Preference Shares of the Trust (the "Initial Securities") set
forth in said
___________________________
(SM) Service mark of Merrill Lynch & Co., Inc.
1
<PAGE>
Schedule A, and (ii) the grant by the Trust to the Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of ___________ additional Trust Units Exchangeable for
Preference Shares of the Trust to cover over-allotments, if any (the "Option
Securities"). The Initial Securities and the Option Securities are hereinafter
called, collectively, the "TrUEPrS."
The TrUEPrS will be issued pursuant to the Second Amended and Restated
Trust Agreement, dated as of September __, 1998, among the trustees of the Trust
(the "Trustees"), ML IBK Positions, Inc. ("ML IBK Positions"), as sponsor, and
the holders of TrUEPrS from time to time (the "Trust Agreement"). The Trust has
issued four thousand TrUEPrS to ML IBK Positions pursuant to the TrUEPrS
Subscription Agreement, dated September 1, 1998, between the Trust and ML IBK
Positions (the "TrUEPrS Subscription Agreement") in consideration of a purchase
price of $100,000 in satisfaction of the requirements of Section 14(a)(1) of the
1940 Act (as herein defined).
Upon the occurrence of an Exchange Event (as defined in the Trust
Agreement), each TrUEPrS will be exchangeable for American Depositary Receipts
("ADRs") evidencing one American Depositary Share ("ADS") representing four
fully paid non-cumulative preference shares, liquidation preference U.S. $6.25
per share, of the Company (a "Preference Share") with a quarterly non-cumulative
dividend payable at the annual rate of ___%, provided that, if the Exchange
Event is the redemption of the Preference Shares for cash, each TrUEPrS will be
exchangeable for U.S. $25.00 plus accrued dividends for the then current
quarterly dividend period.
The ADRs, the ADSs and the Preference Shares issuable in exchange for the
TrUEPrS are hereinafter called the "Company Securities" and the TrUEPrS and the
Company Securities are hereinafter called the "Securities." The ADRs will be
issued pursuant to a Deposit Agreement, dated as of September __, 1998, between
the Company and The Bank of New York, as depositary (the "Deposit Agreement").
The Trust and the Company understand that the Underwriters propose to make
a public offering of the TrUEPrS as soon as the Representatives deem advisable
after this Agreement has been executed and delivered.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") (i) a notification on Form N-8A (the "Notification") of
registration of the Trust as an investment company; and (ii) a registration
statement on Form N-2 relating to the TrUEPrS (File Nos. 333-58751 and 811-
08865), for the registration of the TrUEPrS under the Securities Act of 1933, as
amended (the "1933 Act") and Pre-Effective Amendments No. 1, No. 2 and No. 3
thereto, including the related preliminary prospectus or prospectuses relating
to the offering of the TrUEPrS (the "Trust Registration Statement"). Promptly
after execution and delivery of this Agreement, the Trust will either (i)
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (h) of Rule 497 ("Rule 497 (h)") of
the 1933 Act Regulations or (ii) if the Trust has elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Trust Term Sheet") in accordance with the provisions of Rule 434 and Rule
497(h). The information included in such prospectus or in
2
<PAGE>
such Trust Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Any prospectus relating to the offering and sale of the TrUEPrS used before such
registration statement became effective, and any prospectus relating to the
Trust Registration Statement that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"Trust preliminary prospectus." Such registration statement (as so amended),
including the exhibits thereto and schedules thereto, if any, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called a "Trust Registration Statement."
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations relating to the Trust Registration Statement is herein referred to
as a "Trust Rule 462(b) Registration Statement," and after such filing the term
"Trust Registration Statement" shall include the Trust Rule 462(b) Registration
Statement. The final prospectus relating to the offering and sale of the
TrUEPrS, excluding any Company Prospectus (as defined below) attached thereto,
in the form first furnished to the Underwriters for use in connection with the
offering of the TrUEPrS is herein called the "Trust Prospectus." If Rule 434 is
relied on, the term "Trust Prospectus" shall refer to the preliminary Trust
Prospectus dated September 2, 1998, together with the applicable Trust Term
Sheet and all references in this Agreement to the date of such Trust Prospectus
shall mean the date of the applicable Trust Term Sheet. For purposes of this
Agreement, all references to the Trust Registration Statement, any Trust
preliminary prospectus, the Trust Prospectus or any Trust Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
The Company has filed with the Commission a registration statement on Form
F-3 (File No. 333-9366) for the registration of the Company Securities under the
1933 Act, and Pre-Effective Amendment No. 1 thereto, including the related
preliminary prospectus or prospectuses (the "Company Registration Statement").
Each prospectus relating to the Company Securities deliverable upon exchange of
the TrUEPrS used before such registration statement (as so amended) became
effective, in each case excluding any Trust preliminary prospectus attached
thereto, is herein called a "Company preliminary prospectus." Promptly after
execution and delivery of this Agreement, the Company will either (i) prepare
and file a prospectus in accordance with the provisions of Rule 430A of the
rules and regulations of the Commission under the 1933 Act Regulations and Rule
424(b) or (ii) if the Company has elected to rely upon Rule 434, prepare and
file a term sheet (a "Company Term Sheet") in accordance with the provisions of
Rule 434 and Rule 424(b). The information included in such form of prospectus
or in any such Company Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." The Company Prospectus used before such registration statement
became effective, and any prospectus relating to the Company Registration
Statement that omitted, as applicable, the Rule 430A Information or the Rule 434
Information, that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "Company preliminary
prospectus." Such registration statement, including the exhibits thereto,
3
<PAGE>
schedules thereto, if any, at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called a "Company Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations relating to the Company
Registration Statement is herein referred to as a "Company Rule 462(b)
Registration Statement," and after such filing the term "Company Registration
Statement" shall include the Company Rule 462(b) Registration Statement. The
final Form of Company Prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form F-3 under the 1933 Act, but
excluding any Trust Prospectus attached thereto, in the form first furnished to
the Underwriters for use in connection with the offering of the TrUEPrS is
herein called the "Company Prospectus." If Rule 434 is relied on, the terms
"Company Prospectus" shall refer to the Company preliminary prospectus dated
September 2, 1998, together with any Company Term Sheet and all references in
this Agreement to the date of such Prospectus shall mean the date of the
applicable Company Term Sheet.
The Company has filed with the Commission a registration statement on Form
F-6 and a related prospectus for the registration under the 1933 Act of the ADSs
evidenced by the ADRs. Such registration statement and prospectus, at the time
such registration statement became effective, in each case as then amended, are
hereinafter called the "ADR Registration Statement" and the "ADR Prospectus,"
respectively.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Company
Registration Statement, any Company preliminary prospectus or the Company
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Company Registration Statement, any Company
preliminary prospectus or the Company Prospectus, as the case may be; and shall
be deemed to exclude all financial statements and schedules and other
information which are included in any Trust preliminary prospectus or the Trust
Prospectus which is attached to any Company preliminary prospectus or Company
Prospectus; and all references in this Agreement to amendments or supplements to
the Company Registration Statement, any Company preliminary prospectus or the
Company Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Company Registration Statement, such Company
preliminary prospectus or the Company Prospectus, as the case may be.
The Trust Prospectus, the Company Prospectus and the ADR Prospectus are
herein called individually a "Prospectus" and collectively the "Prospectuses";
the Trust preliminary prospectus and the Company preliminary prospectus are
herein called individually a "Preliminary Prospectus" and collectively the
"Preliminary Prospectuses"; and the Trust Registration Statement, the Company
Registration Statement and the ADR Registration Statement are called
individually a "Registration Statement" and collectively the "Registration
Statements."
Each Trust preliminary prospectus will be accompanied by the then current
Company preliminary prospectus and each Trust Prospectus will be accompanied by
the then current Company Prospectus. No Company preliminary prospectus or
Company Prospectus will be separately distributed by the Trust, the Company or
the Underwriters.
4
<PAGE>
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Trust Registration Statement.
SECTION 1. Representations and Warranties .
(a) Representations and Warranties by the Trust. The Trust represents and
warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. Each of the Trust
Registration Statement and any Trust Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Trust Registration Statement or any Trust Rule 462(b)
Registration Statement pursuant to Section 8(d) of the 1933 Act, or order
pursuant to Section 8(e) of the Investment Company Act of 1940, as amended
(the "1940 Act"), has been issued and no proceedings for either such
purpose have been instituted or are pending or, to the knowledge of the
Trust or the Company, are contemplated by the Commission, and any request
on the part of the Commission for, additional information has been complied
with.
At the respective times the Trust Registration Statement, any Trust
Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective, the Notification, the Trust Registration
Statement, the Trust Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and the
1940 Act and the rules and regulations of the Commission under the 1940 Act
(the "1940 Act Regulations"), and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Neither the Trust Prospectus nor any amendments or supplements
thereto, at the time the Trust Prospectus or any such amendment or
supplement was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
If Rule 434 is used, the Trust will comply with the requirements of Rule
434. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Trust Registration Statement (or any
amendments thereto) or the Trust Prospectus (or any amendments or
supplements thereto) made in reliance upon and in conformity with
information furnished to the Trust in writing by the Underwriters through
Merrill Lynch expressly for use in the Trust Registration Statement (or any
amendments thereto) or Trust Prospectus (or any amendments or supplements
thereto).
Each Trust preliminary prospectus and the prospectus relating to the
offering of the TrUEPrS filed as part of the Trust Registration Statement
as originally filed or as part of any amendment thereto, or filed pursuant
to Rule 497(h) under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and the 1940 Act
5
<PAGE>
Regulations, and, if applicable, each Trust preliminary prospectus and the
Trust Prospectus delivered to the Underwriters for use in connection with
the offering of the TrUEPrS was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(ii) Independent Accountants. The accountants who certified certain
financial statements and supporting schedules included in the Trust
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statement. The statement of assets, liabilities and
capital included in the Trust Registration Statement and the Trust
Prospectus, together with the notes thereto, present fairly the financial
position of the Trust at the date indicated; said financial statement has
been prepared in conformity with generally accepted accounting principles.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Trust Registration Statement
and the Trust Prospectus, the Company Registration Statement and the
Company Prospectus, except as otherwise stated therein or contemplated
thereby, (A) there has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business prospects,
management, investment objectives or investment policies of the Trust or on
the ability of the Trust to perform its obligations under this Agreement,
any Fundamental Trust Agreement (as defined herein) or the other agreements
or instruments contemplated by this Agreement or the Trust Registration
Statement, whether or not arising in the ordinary course of business and
(B) there have been no transactions entered into by the Trust, other than
those in the ordinary course of business, which are material with respect
to the Trust.
(v) Good Standing of the Trust; No Subsidiaries. The Trust has been
duly created and is validly existing as a business trust in good standing
under the Delaware Act with power and authority to own its properties and
to conduct its business as described in the Trust Prospectus and to enter
into and perform its obligations under this Agreement and the Fundamental
Trust Agreements (as defined herein); the Trust is and will, under current
law, be classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a corporation; and the
Trust has no subsidiaries.
(vi) Registration Under the 1940 Act. The Trust is registered with the
Commission as a non-diversified, closed-end management investment company
under the 1940 Act. No order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to the
knowledge of the Trust, threatened by the Commission. No person is serving
or acting as an officer or trustee of the Trust, except in accordance with
the provisions of the 1940 Act.
(vii) Outstanding TrUEPrS. All of the outstanding TrUEPrS have been
duly and validly authorized and issued and are fully paid and non-
assessable undivided beneficial
6
<PAGE>
interests in the assets of the Trust; and the form of certificate used to
evidence the TrUEPrS is in due and proper form and complies with all
provisions of applicable law.
(viii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Trust. The performance of this
Agreement and the consummation of the transactions contemplated in this
Agreement and the Trust Registration Statement (including the issuance and
sale of the TrUEPrS and the use of the proceeds from the sale of the
TrUEPrS as described in the Trust Prospectus under the caption "Use of
Proceeds and Collateral Arrangements") and compliance by the Trust with its
obligations under this Agreement have been duly authorized by the Trust.
(ix) Authorization and Description of the TrUEPrS. The TrUEPrS have
been duly authorized by the Trust for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered by the Trust
pursuant to this Agreement against payment of the purchase price therefor
as provided herein, will be validly issued and fully paid and non-
assessable undivided beneficial interests in the assets of the Trust; the
TrUEPrS conform to all statements relating thereto contained in the Trust
Prospectus and such description conforms to the rights set forth in the
instruments defining the same; no holder of the TrUEPrS will be subject to
personal liability by reason of being such a holder; and the issuance of
the TrUEPrS is not subject to the preemptive or other similar rights of any
securityholder of the Trust.
(x) Authorization of Fundamental Trust Agreements. Each of the
Administration Agreement, to be dated September __ , 1998, between the
Trust and The Bank of New York as administrator, the Custodian Agreement,
dated September 1, 1998, between the Trust and The Bank of New York as
custodian, the Paying Agent Agreement, to be dated September ____, 1998,
between the Trust and The Bank of New York as paying agent, the Expense and
Indemnity Agreement, to be dated September __, 1998, among the Trust, the
U.K. Company, the Jersey Subsidiary, the Jersey Holding Company, the Jersey
Charitable Trust and the ANZ Affiliate (the "Expense and Indemnity
Agreement"), the Debt Securities Subscription Agreement, dated September
__, between the Trust and the U.K. Company, the Reimbursement Agreement,
dated September __, 1998, between the Trust and Merrill Lynch, the Jersey
Preference Shares Security and Pledge Agreement, to be dated September __,
1998, among the Trust, the U.K. Company and The Bank of New York, as
collateral agent, the ADRs Security and Pledge Agreement, to be dated
September _____, 1998, among the Trust, the U.K. Company, the Jersey
Subsidiary and The Bank of New York, as collateral agent, the License
Agreement, dated September __, 1998, between the Trust and the Company (the
"License Agreement"), the ADSs Purchase Contract, to be dated September __,
1998, between the Trust and the Jersey Subsidiary and the TrUEPrS
Subscription Agreement (such agreements are collectively referred to herein
as the "Fundamental Trust Agreements"), has been duly authorized by the
Trust and, at the Closing Time, will have been duly executed and delivered
by the Trust and (assuming the due authorization, execution and delivery by
the other parties thereto) will constitute a valid and binding agreement of
the Trust, enforceable against the Trust in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar
7
<PAGE>
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(xi) Compliance with Acts. The Trust Agreement and the Fundamental
Trust Agreements comply with any and all applicable provisions of the 1933
Act and the 1940 Act, and all approvals of such documents required under
the 1940 Act by the holders of the TrUEPrS and the Trustees have been
obtained and are in full force and effect.
(xii) Description of Trust Agreement and Fundamental Trust
Agreements. The Trust Agreement and the Fundamental Trust Agreements will
conform in all material respects to the respective statements relating
thereto contained in the Trust Prospectus and, to the extent forms thereof
were filed as exhibits to the Trust Registration Statement, will be in
substantially the respective forms so filed.
(xiii) Absence of Defaults and Conflicts. The execution, delivery and
performance by the Trust of this Agreement and each Fundamental Trust
Agreement and the consummation of the transactions contemplated herein,
therein and in the Trust Registration Statement (including the issuance and
sale of the TrUEPrS and any exchange of Company Securities pursuant thereto
and the use of the proceeds from the sale of the TrUEPrS as described in
the Trust Prospectus under the caption "Use of Proceeds and Collateral
Arrangements") and compliance by the Trust with its obligations hereunder,
under the TrUEPrS and under each Fundamental Trust Agreement do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Trust
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Trust pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Trust is a party or by which it may be bound, or to which any of
the property or assets of the Trust is subject (collectively, "Agreements
and Instruments") (except for such conflicts, breaches, defaults or Trust
Repayment Events or liens, charges or encumbrances that would not result in
a material adverse effect on the condition, financial or otherwise, or on
the earnings, business prospects, management, investment objectives or
investment policies of the Trust or on the ability of the Trust to perform
its obligations under this Agreement, any Fundamental Trust Agreement or
the other agreements or instruments contemplated by this Agreement or the
Trust Registration Statement, whether or not arising in the ordinary course
of business, (a "Material Adverse Trust Effect"), nor will such action
result in any violation of the provisions of the Trust Agreement or the
trust certificate of the Trust filed with the State of Delaware on July 8,
1998 or any applicable law, statute, rule or regulation of any government
or government instrumentality having jurisdiction over the Trust or any of
its assets, properties or operations (other than any state securities or
"blue sky" law, statute, rule or regulation, as to which no representation
or warranty is made), or any applicable judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Trust or any of its assets or properties
(except for such violations of any law, statute, rule, regulation,
judgment, order, writ or decree that would not result in a Material Adverse
Trust Effect). As used herein, a "Trust Repayment
8
<PAGE>
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness of the Trust (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Trust.
(xiv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending with respect to which the
Trust has received service of process, or, to the knowledge of the Trust,
threatened, against or affecting the Trust, which is required to be
disclosed in the Trust Registration Statement or the Trust Prospectus
(other than as disclosed therein), or which might, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Trust
Effect, or which might, individually or in the aggregate, reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
Agreement or the Fundamental Trust Agreements (including the issuance and
sale of the TrUEPrS and any exchange of Company Securities pursuant
thereto) or the performance by the Trust of its obligations hereunder or
thereunder; the aggregate of all pending legal or governmental proceedings
(with respect to which the Trust has received service of process) to which
the Trust is a party or of which any of its property or assets is the
subject which are not described in the Trust Registration Statement or the
Trust Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Trust Effect.
(xv) No Investment Restrictions, etc. There are no material
restrictions, limitations or regulations with respect to the ability of the
Trust to invest its assets as described in the Trust Prospectus, other than
as described therein.
(xvi) Exhibits. There are no contracts or documents which are of a
character required to be described in the Trust Registration Statement or
the Trust Prospectus or to be filed as exhibits thereto which have not been
so described or filed as required.
(xvii) Absence of Further Requirements. No declaration or filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the Trust to own and use its assets and to
conduct its business in the manner described in the Trust Prospectus or for
the performance by the Trust of its obligations under this Agreement, the
Trust Agreement or any Fundamental Trust Agreement or the consummation by
the Trust of the transactions contemplated herein or therein (including the
issuance and sale of the TrUEPrS, any delivery of Company Securities
pursuant thereto and the use of the proceeds from the sale of the TrUEPrS
as described in the Trust Prospectus under the caption "Use of Proceeds and
Collateral Arrangements"), except such as have been already obtained or as
may be required under the 1933 Act or the 1933 Act Regulations, the 1940
Act or the 1940 Act Regulations or state securities laws.
(xviii) Possession of Licenses and Permits. The Trust possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or
9
<PAGE>
bodies necessary to conduct the business now operated by them; the Trust is
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Trust Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity
of such Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not have a Material Adverse Trust
Effect; and the Trust has not received any notice of proceedings relating
to the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Trust Effect.
(xix) Title to Property. The Trust has good title to all properties
owned by it, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except
such as (A) are described in the Trust Prospectus or (B) do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Trust.
(b) Representations and Warranties by the Company. The Company represents
and warrants to each of the Underwriters and the Trust as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each of
the Underwriters and the Trust, as follows:
(i) Compliance with Registration Requirements. The Company meets the
requirements for use of Form F-3 under the 1933 Act. Each of the Company
Registration Statement and any Company Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Company Registration Statement or any Company Rule
462(b) Registration Statement pursuant to Section 8(d) of the 1933 Act has
been issued and no proceedings for either such purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Company Registration Statement, any
Company Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective, the Company Registration Statement,
the Company Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations, and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither the Company Prospectus nor
any amendments or supplements thereto, at the time the Company Prospectus
or any such amendment or supplement was issued and at the Closing Time
(and, if any additional Company Securities are issued, at the Date of
Delivery), included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If Rule 434 is used, the Company will comply
with the requirements of Rule 434. The
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representations and warranties in this subsection shall not apply to
statements in or omissions from the Company Registration Statement (or any
amendments thereto) or the Company Prospectus (or any amendments or
supplements thereto) made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriters through
Merrill Lynch expressly for use in the Company Registration Statement (or
any amendments thereto) or Company Prospectus (or any amendments or
supplements thereto).
Each Company preliminary prospectus or prospectus filed pursuant to
Rule 424(b) under the 1933 Act complied when so filed in all material
respects with the 1933 Act Regulations.
The ADR Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the ADR Registration
Statement pursuant to Section 8(d) of the 1933 Act has been issued and no
proceedings for either such purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information has
been complied with. At the time the ADR Registration Statement and any
post-effective amendments thereto became effective, the ADR Registration
Statement and any amendments and supplements thereto complied and will
comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations, and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Neither the ADR Prospectus nor any amendments or supplements
thereto, at the time the ADR Prospectus or any such amendment or supplement
was issued and at the Closing Time (and, if any additional ADSs are issued,
at the Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(ii) Independent Accountants. The accountants who certified certain
financial statements and supporting schedules included in the Company
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Company Registration Statement and the
Company Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Company Prospectus, at the time the
Company Registration Statement became effective, at the time the Company
Prospectus was issued and at the Closing Time or Date of Delivery, as the
case may be, did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
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<PAGE>
(iv) Financial Statements. The financial statements included in the
Company Registration Statement and the Company Prospectus, together with
the related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with accounting
principles generally accepted in Australia ("A-GAAP") applied on a
consistent basis throughout the periods involved and a footnote to said
financial statements reconciles said financial statements to accounting
principles generally accepted in the United States in accordance with the
1933 Act Regulations. The selected financial data, the summary financial
information included in the Company Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
the audited financial statements included in the Company Registration
Statement.
(v) Existence of the Company. The Company has been duly incorporated,
is validly existing as a corporation under the laws of the State of
Victoria, Commonwealth of Australia, and has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its obligations
under this Agreement or any other agreement or instrument contemplated by
this Agreement or the Registration Statements; and the Company is duly
registered or qualified as a foreign corporation to transact business in
each other jurisdiction, domestic or foreign, in which such registration or
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to
register or qualify would not have a, and could not reasonably be expected
to have a prospective, material adverse effect on the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, in each
case whether or not arising in the ordinary course of business, or on the
ability of the Company or any of its subsidiaries to perform their
respective material obligations under this Agreement or the other
agreements or instruments contemplated by this Agreement or the
Registration Statements (a "Material Adverse Company Effect").
(vi) Existence of Significant Subsidiaries. Each Significant
Subsidiary (as defined herein) of the Company has been duly organized, is
validly existing as a corporation, business trust or limited liability in
good standing (if such concept is applicable in the jurisdiction of its
incorporation) under the laws of the jurisdiction of its incorporation, has
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good standing (if
applicable as aforesaid) in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to be in good standing,
to have such power or authority, or to be so qualified, as the case may be,
would not result in a, and could not reasonably be expected to have a
prospective, Material Adverse Company Effect; except as otherwise disclosed
in the Registration Statements, all of the issued and outstanding capital
stock of or equity interests in each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and is owned by the Company,
directly or through subsidiaries, free and clear
12
<PAGE>
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of or interests in
any Significant Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Significant Subsidiary. For
purposes of this Agreement, a "Significant Subsidiary" shall mean the
Distribution Trust, the ANZ Borrower, the ANZ Affiliate and any other
subsidiary of the Company which has, on the basis of the latest audited
financial statements included in the Company Prospectus, total assets,
interest income or non-interest income (determined on a consolidated basis
for such subsidiary and its consolidated subsidiaries) in excess of 5% of
the consolidated assets, consolidated interest income or consolidated non-
interest income, as the case may be, of the Company.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Company Prospectus under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant
to this Agreement, pursuant to reservations, agreements, or employee
benefit plans referred to in the Company Prospectus or pursuant to the
exercise of convertible securities or options referred to in the Company
Prospectus, including, without limitation, the dividend reinvestment plan,
employee share purchase scheme, bonus option plan, group share option
scheme, senior officers' share purchase scheme and directors' share and
option purchase scheme of the Company). The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and, except as otherwise set forth in the Company
Prospectus, are fully paid and will not subject the holder thereof to any
personal liability to the Company or to creditors of the Company; none of
the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any securityholder
of the Company; the Preference Shares, when issued and delivered in
connection with the payment by the Jersey Subsidiary to the Company in
consideration for the issuance by the Depositary to the Jersey Subsidiary
of ADSs pursuant to the terms of the ADSs Subscription Agreement, to be
dated September __, 1998 (the "ADSs Subscription Agreement"), between the
Company and the Jersey Subsidiary, will be validly issued and fully paid,
will not subject the holder thereof to any personal liability to the
Company or to the creditors of the Company, will not be subject to
preemptive or other similar rights and will conform in all material
respects to all statements relating thereto in the Prospectuses. The
Deposit Agreement has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether such enforcement may be sought in a proceeding at
law or in equity); upon issuance by the Depositary of the ADSs against the
deposit of Preference Shares in accordance with the provisions of the
Deposit Agreement, such ADSs will be duly and validly issued and the
persons in whose names the ADSs are registered will be entitled to the
rights specified in the Deposit Agreement; and the ADSs and the Deposit
Agreement conform to the descriptions thereof contained in the Company
Prospectus;
(viii) No Material Adverse Change in Business. Neither the Company
nor any of the Significant Subsidiaries has sustained since the date of the
latest audited financial
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statements included in the Company Prospectus any loss or interference with
its business from fire, explosion, flood or any other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Company Prospectus and except for any such matters that
have not had a, and could not reasonably be expected to have a prospective,
Material Adverse Company Effect. Since the respective dates as of which
information is given in the Company Registration Statement and the Company
Prospectus, there has not been any reduction in the share capital and
reserves applicable to shareholders of the Company in excess of A$250
million or any increase in long-term debt in excess of A$1 billion of the
Company or any of its subsidiaries. Since the respective dates as of which
information is given in the Company Registration Statement and the Company
Prospectus, there has not occurred any material adverse change, or any
development which the Company has reasonable cause to believe involves a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, in each
case whether or not arising in the ordinary course of business, otherwise
than as set forth or contemplated in the Company Prospectus.
(ix) Authority. The ANZ Affiliate has duly authorized the execution
and delivery by it of, and has full right, power and authority to enter
into and perform its obligations under, the Expense and Indemnity
Agreement; each of the Distribution Trust and the ANZ Borrower has duly
authorized the execution and delivery by it of, and has full right, power
and authority to enter into and perform its obligations under, the ANZ Loan
Agreement, to be dated September __, 1998, between the ANZ Borrower and the
Distribution Trust (the "ANZ Loan Agreement"); ANZ Funds Pty Ltd. ("ANZ
Funds") has duly authorized the execution and delivery by it of, and has
full right, power and authority to enter into and perform its obligations
under, the Distribution Trust Agreement, to be dated September __, 1998,
among the Company, the distribution trustees named therein, the U.K.
Company and ANZ Funds (the "Distribution Trust Agreement") and the Company
has duly authorized the execution and delivery by it of, and has full
right, power and authority to enter into and perform its obligations under,
each of the License Agreement, the Deposit Agreement, the ADSs Subscription
Agreement, the Distribution Trust Agreement, this Agreement, the Support
Agreement between the Company and the ANZ Affiliate and any other
agreements and instruments contemplated by this Agreement or the
Registration Statements to which it is a party (collectively, together with
the Expense and Indemnity Agreement and the ANZ Loan Agreement, the
"Fundamental Company Documents").
(x) Execution and Delivery of Purchase Agreement. This Agreement has
been duly authorized, executed and delivered by the Company.
(xi) Execution and Delivery of the Other Fundamental Company
Documents. At the Closing Time, each Fundamental Company Document (other
than this Agreement) will have been duly executed and delivered by the
Company and/or the Significant Subsidiary which is a party thereto and
(assuming the due authorization, execution and delivery by the other
parties thereto) will constitute a valid and binding agreement of the
Company and/or such Significant Subsidiary, as the case may be, enforceable
against the Company and/or such Significant Subsidiary, as the case may be,
in accordance with its
14
<PAGE>
terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether such enforcement may be sought in
a proceeding at law or in equity).
(xii) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject except for such defaults as are
disclosed in the Company Prospectus or that would not result in a, and
could not reasonably be expected to involve a prospective, Material Adverse
Company Effect; and the execution, delivery and performance by the Company
and/or the applicable Significant Subsidiary, as the case may be, of this
Agreement and the other Fundamental Company Documents and the consummation
by the Company and/or each Significant Subsidiary of the transactions
contemplated herein and therein and compliance by the Company and each
Significant Subsidiary with their respective obligations hereunder and
thereunder do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of,
or default or Company Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (except for such conflicts,
breaches, defaults or Company Repayment Events or liens, charges or
encumbrances that, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Company Effect), nor will such
action result in any violation of the provisions of the Constitution of the
Company or of any applicable law, statute, rule or regulation of any
government or government instrumentality having jurisdiction over the
Company or any of its subsidiaries or any of their assets or properties
(other than any state securities or "blue sky" law, statute, rule or
regulation, as to which no representation and warranty is made), or any
applicable judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets or properties
(except in all such cases for such violations that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Company Effect). As used herein, a "Company Repayment Event" means any
event or condition which, with notice or lapse of time or both, gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary thereof.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic
15
<PAGE>
or foreign, now pending with respect to which the Company has received
service of process, or, to the knowledge of the Company, threatened, to
which the Company or any of its subsidiaries is a party or of which any of
their property is subject, which is required to be disclosed in the Company
Registration Statement or the Company Prospectus (other than as disclosed
therein), or which, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Company Effect.
(xiv) Absence of Further Requirements. To the best of the Company's
knowledge, no declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
execution, delivery or performance by the Company or any of its Significant
Subsidiaries, as the case may be, of this Agreement or the other
Fundamental Company Documents, or the consummation by the Company of the
transactions contemplated herein or therein, except (i) such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws, (ii) such consents, approvals,
authorizations, registrations or qualifications as may be required by the
Reserve Bank of Australia or Australian Prudential Regulation Authority and
(iii) such consents, approvals, authorizations, orders, registrations or
qualifications the failure to obtain or make which, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Company Effect or will not affect the validity of the Company Securities or
the rights of the holders thereof or prevent or delay the consummation of
the transactions contemplated herein or in the Company Registration
Statement.
(c) Officer's Certificates. Any certificate signed by any officer of the
Trust, the Company or any of the Company's subsidiaries delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
(d) Representations and Warranties of the Underwriters. Each Underwriter
represents, warrants and agrees that:
(i) (A) it has not (directly or indirectly) offered for subscription
or purchase or issued invitations to subscribe for or purchase nor has it
sold the TrUEPrS, (B) will not (directly or indirectly) offer for
subscription or purchase or issue invitations to subscribe for or purchase
or sell the TrUEPrS, and (C) it has not distributed and will not distribute
any draft or definitive prospectus, advertisement or other offering
material, in each case in Australia or to any resident of Australia
(including corporations and other entities organized under the laws of
Australia but not including a permanent establishment of such corporations
or other entities located outside Australia); and
(ii) (A) it has not offered or sold and prior to the date six months
after the date hereof, will not offer or sell any TrUEPrS to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
16
<PAGE>
Regulations 1995, (B) it has complied and will comply with all applicable
provisions of the Financial Services Act of 1986 with respect to anything
done by it in relation to the TrUEPrS in, from or otherwise involving the
United Kingdom, and (C) it has only issued or passed on, and will only
issue or pass on, in the United Kingdom any document received by it in
connection with the issue of the TrUEPrS to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document
may otherwise lawfully be issued or passed on.
SECTION 2. Sale and Delivery to Underwriters; Closing.
----------- ------------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price of US$25 per TrUEPrS, the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional number of
Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Trust hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to an additional ___________ Option Securities at
the price of US$25 per TrUEPrS plus accrued dividend distributions, if any, from
the Closing Time or, if the Date of Delivery is after October 15, 1998, from
October 15, 1998. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by Merrill Lynch
to the Trust and the Company setting forth the number of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date
of delivery for the Option Securities (a "Date of Delivery") shall be determined
by Merrill Lynch, but shall not be later than seven full business days or less
than two business days after the exercise of said option, nor in any event prior
to the Closing Time, as hereinafter defined. If the option is exercised as to
all or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as
Merrill Lynch in its discretion shall make to eliminate any sales or purchases
of fractional securities.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Brown &
Wood LLP, One World Trade Center, New York, New York 10048, or at such other
place as shall be agreed upon by Merrill Lynch, the Trust and the Company, at
9:00 A.M. (Eastern time) on the fifth business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by
Merrill Lynch, the Trust
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<PAGE>
and the Company (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by Merrill Lynch, the
Trust and the Company on each Date of Delivery as specified in the notice from
Merrill Lynch to the Trust and the Company.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the TrUEPrS to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Merrill Lynch, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Underwriters' Compensation. For the Underwriters' commitments
hereunder and in view of the fact that the proceeds of the sale of the TrUEPrS
purchased hereunder will ultimately be invested in the Preference Shares, the
Company hereby agrees to pay at the Closing Time and each Date of Delivery, if
any, to the Underwriters in immediately available funds, US$___ for each TrUEPrS
purchased by them at the Closing Time or such Date of Delivery, as the case may
be; provided that such compensation for sales of more than 10,000 TrUEPrS to any
single purchaser will be US$_______ for each TrUEPrS purchased by them.
(e) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants.
---------
(a) Covenants of the Trust. The Trust covenants with each Underwriter as
follows:
(i) Compliance with Securities Regulations and Commission Requests.
The Trust, subject to Section 3(a)(ii), will comply with the requirements
of Rule 430A or Rule 434, as applicable, and will notify the
Representatives immediately, and confirm the notice in writing, (A) when
any post-effective amendment to the Trust Registration Statement shall
become effective, or any supplement to the Trust Prospectus or any amended
Trust Prospectus shall have been filed, (B) of the receipt of any comments
from
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the Commission, (C) of any request by the Commission for any amendment
to the Trust Registration Statement or any amendment or supplement to the
Trust Prospectus or for additional information, and (D) of the issuance by
the Commission of any stop order suspending the effectiveness of the Trust
Registration Statement or of any order preventing or suspending the use of
any Trust preliminary prospectus or of any order pursuant to Section 8(e)
of the 1940 Act, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes. The Trust will
promptly effect the filings necessary pursuant to Rule 497(h) and will take
such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497(h) was received for filing
by the Commission and, in the event that it was not, it will promptly file
such prospectus. The Trust will make every reasonable effort to prevent the
issuance of any stop order pursuant to Section 8(d) of the 1933 Act or any
order pursuant to Section 8(e) of the 1940 Act and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
(ii) Filing of Amendments. The Trust will give the Representatives and
the Company notice of its intention to file or prepare any amendment to the
Trust Registration Statement (including any filing under Rule 462(b)), any
Trust Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Trust Registration Statement at the time it
became effective or to the Prospectuses, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the Representatives and the Company
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any
such document to which the Representatives and the Company or their
respective U.S. counsel shall object.
(iii) Delivery of Trust Registration Statement. The Trust has
furnished or will deliver to the Representatives and the Company and their
respective counsel, without charge, signed copies of the Trust Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and signed
copies of all consents and certificates of experts, and will also deliver
to the Representatives and the Company, without charge, a conformed copy of
the Trust Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of the
Trust Registration Statement and each amendment thereto furnished to the
Underwriters and the Company will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(iv) Delivery of Trust Prospectus. The Trust has delivered to each
Underwriter, without charge, as many copies of each Trust preliminary
prospectus as such Underwriter reasonably requested, and the Trust hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Trust will furnish to each Underwriter, without charge, during the
period when the Trust Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Trust Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. The
Trust Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to
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the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. The Trust will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations, and 1940 Act and the 1940 Act Regulations, so as to permit
the completion of the distribution of the TrUEPrS as contemplated in this
Agreement and the Trust Prospectus. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
TrUEPrS, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters, the
Company or the Trust, to amend the Trust Registration Statement or amend or
supplement any Trust Prospectus in order that the Trust Prospectus will not
include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
any such counsel, at any such time to amend the Trust Registration
Statement or amend or supplement any Trust Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations or the
1940 Act or the 1940 Act Regulations, the Trust will promptly prepare and
file with the Commission, subject to Section 3(a)(ii), such amendment or
supplement as may be necessary to correct such statement or omission or to
make the Trust Registration Statement or the Trust Prospectus comply with
such requirements, and the Trust will furnish to the Underwriters such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(vi) Blue Sky Qualifications. The Trust will use its best efforts, in
cooperation with the Underwriters and the Company, to qualify the TrUEPrS
for offering and sale under the applicable securities laws of such U.S.
states and territories as the Representatives may designate and to maintain
such qualifications in effect for a period of not less than one year from
the later of the effective date of the Trust Registration Statement and any
Trust Rule 462(b) Registration Statement; provided, however, that the Trust
shall not be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject. In each jurisdiction in which the TrUEPrS have
been so qualified, the Trust will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the effective date of
the Trust Registration Statement and any Trust Rule 462(b) Registration
Statements.
(vii) Rule 158. The Trust will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Trust will use the net proceeds received
by it from the sale of the TrUEPrS in the manner specified in the Trust
Prospectus under "Use of Proceeds and Collateral Arrangements."
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(ix) Listing. The Trust will use its best efforts to effect the
listing of the TrUEPrS on the New York Stock Exchange (the "NYSE").
(x) Reporting Requirements. The Trust, during the period when the
Prospectuses are required to be delivered under the 1933 Act, the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations and will file all documents required to be filed with
the Commission pursuant to the 1940 Act within the time periods required by
the 1940 Act and the 1940 Act Regulations.
(b) Covenants of the Company. The Company covenants with each Underwriter
as follows:
(i) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b)(ii), will comply with the requirements
of Rule 430A or Rule 434, as applicable, and will notify the
Representatives immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Company Registration Statement or the
ADR Registration Statement shall become effective, or any supplement to the
Company Prospectus or the ADR Prospectus or any amended Company Prospectus
or ADR Prospectus shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for
any amendment to the Company Registration Statement or the ADR Registration
Statement or any amendment or supplement to the Company Prospectus or ADR
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Company
Registration Statement or the ADR Registration Statement or of any order
preventing or suspending the use of any Company preliminary prospectus, or
of the suspension of the qualification of the Company Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(ii) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Company
Registration Statement (including any filing under Rule 462(b)), the ADR
Registration Statement, any Company Term Sheet or any amendment, supplement
or revision to either the prospectus included in the Company Registration
Statement at the time it became effective or the prospectus in the ADR
Registration Statement at the time it became effective or to the Company
Prospectus or the ADR Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of any
such documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall reasonably
object.
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(iii) Delivery of Registration Statements. The Company has furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Company Registration Statement and the
ADR Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge,
conformed copies of the Company Registration and the ADR Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters.
(iv) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each Company preliminary
prospectus as such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the
period when the Company Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Company Prospectus
(as amended or supplemented) as such Underwriter may reasonably request.
(v) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and the Company
Prospectus. If at any time when a prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Company Registration Statement or amend or supplement any Company
Prospectus in order that the Company Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to
amend the Company Registration Statement or amend or supplement any Company
Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Company
Registration Statement or the Prospectuses comply with such requirements,
and the Company will furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may reasonably request, in
each case, at its own expense if such prospectus is required to be
delivered within nine months of the date of this Agreement, and otherwise
at the expense of the Underwriters.
(vi) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Company Securities for
offering and sale under the applicable securities laws of such U.S. states
and territories as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
later of the effective date of the Company Registration
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Statement and any Company Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Company Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Company Registration
Statement and any Company Rule 462(b) Registration Statements.
(vii) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(viii) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the Company Prospectus under "Use of Proceeds."
(ix) Listing. The Company will use its best efforts to effect the
listing of the ADSs and the Preference Shares on the NYSE.
(x) Restriction on Sale of Securities. During a period of 30 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Representatives, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to purchase or otherwise transfer or dispose of any Company Securities or
any other preference shares of the Company or any subsidiary thereof or any
securities convertible into or exercisable or exchangeable for Company
Securities or such other preference shares (other than, in any such case,
to or with an affiliate (as defined in Rule 12b-2 under the 1934 Act) of
the Company) or file any registration statement under the 1933 Act with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction (other than the Fundamental Trust Agreements
and the Fundamental Company Documents) that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Company Securities or any other preference shares of the Company or any
subsidiary thereof, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of Company Securities
or any other preference shares of the Company or any subsidiary thereof or
such other securities, in cash or otherwise. The foregoing sentence shall
not apply to the Company Securities exchangeable for the TrUEPrS to be sold
hereunder.
SECTION 4. Payment of Expenses.
-------------------
(a) Trust Expenses. The Trust will pay or cause to be paid all expenses
incident to the performance of the obligations of the Trust under this
Agreement, including (i) the preparation, printing and filing of the Trust
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment and supplement thereto, (ii) the
preparation,
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printing and delivery to the Underwriters of this Agreement, any Agreement among
the Underwriters, the Fundamental Trust Agreements and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the TrUEPrS, (iii) the preparation, issuance and delivery of the
certificates for the TrUEPrS, including any charges of DTC in connection
therewith and any stock or other transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the TrUEPrS and the transfer of
the TrUEPrS between the Underwriters, (iv) the fees and disbursements of the
counsel, accountants and other advisors to the Trust, the U.K. Company, the
Jersey Holding Company, the Jersey Charitable Trust and the Jersey Subsidiary
(solely in their capacity as such and not in their capacity as counsel to the
Underwriters), (v) the qualification of the TrUEPrS under securities laws in
accordance with the provisions of Section 3 hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) any fees payable in connection with the
rating of the TrUEPrS, (vii) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Trust Term Sheets and of the Trust
Prospectus and any amendments or supplements thereto, (viii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (ix) the fees and expenses of any transfer agent or
registrar for the TrUEPrS, (x) the fees and expenses incurred in connection with
the listing of the TrUEPrS on the NYSE, (xi) the fees and expenses required to
establish the Trust, the U.K. Company, the Jersey Holding Company, the Jersey
Charitable Trust and the Jersey Subsidiary and to document the transactions to
which such parties are a party as contemplated by the Registration Statements
(to the extent not paid by the U.K. Company), (xii) any Australian stamp duty in
connection with the execution and delivery of this Agreement, the Fundamental
Trust Agreements, the TrUEPrS and any other agreements or instruments
contemplated by the foregoing or the Trust Registration Statement, and (xiii)
all other reasonable costs and expenses (excluding any out of pocket expenses
incurred by the Underwriters) incident to the performance of the obligations of
the Trust hereunder which are not otherwise specifically provided for in this
Section 4, including without limitation any Australian duties or taxes payable
in connection with the issuance, sale and delivery of the TrUEPrS or the
execution and delivery of the Fundamental Trust Agreements.
(b) Company Expenses. The Company will pay or cause to be paid all
expenses incident to the performance of the obligations of the Company under
this Agreement, including (i) the preparation, printing and filing of the
Company Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment and supplement thereto, (ii) the
Fundamental Company Documents and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Company Securities, (iii) the preparation, issuance and delivery of the
certificates for the Company Securities, including any charges of DTC in
connection therewith and any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Company
Securities, (iv) the fees and disbursements of the counsel, accountants and
other advisors to the Company, the Distribution Trust, the ANZ Borrower, ANZ
Funds and the ANZ Affiliate; (v) the qualification of the Company Securities
under securities laws in accordance with the provisions of Section 3 hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of
The Bank of New York, as depositary, including the fees and disbursements of
counsel for the Depositary in connection
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with the Deposit Agreement, if any, (vii) any fees payable in connection with
the rating of the Company Securities, (viii) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Company Term Sheets
and of the Company Prospectus and any amendments or supplements thereto, (ix)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (x) the fees and expenses of any transfer
agent or registrar for the Company Securities, (xi) the fees and expenses
incurred in connection with the listing of the Company Securities on the NYSE,
(xii) the fees and expenses required to establish the Distribution Trust and to
document the transactions to which the Distribution Trust, the ANZ Borrower, ANZ
Funds and the ANZ Affiliate are a party as contemplated by the Registration
Statements, (xiii) any Australian stamp duty in connection with the execution
and delivery of this Agreement, the Fundamental Company Documents, the Company
Securities and any other agreements or instruments contemplated by the foregoing
or the Company Registration Statement, and (xiv) all other reasonable costs and
expenses (excluding any out of pocket expenses incurred by the Underwriters)
incident to the performance of the obligations of the Company hereunder which
are not otherwise specifically provided for in this Section 4, including without
limitation any Australian duties or taxes payable in connection with the
issuance, sale and delivery of the Company Securities or the execution and
delivery of the Fundamental Company Documents.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section 9
hereof (other than as a result of a failure of a condition relating to the
Trust, the Trust Registration Statement, opinions of counsel for the Trust, the
Trustee Certificate or the failure by any party other than the Company, the
Distribution Trust, ANZ Funds, the ANZ Affiliate or the ANZ Borrower to execute
and deliver any Fundamental Trust Agreement or Fundamental Company Document),
the Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Trust and the Company contained in Section
1 hereof or in certificates of any officer of the Trust or the Company, any
subsidiary of the Company, the U.K. Company, the Jersey Subsidiary, the ANZ
Affiliate, the Jersey Holding Company, the Jersey Charitable Trust, the
Distribution Trust, ANZ Funds and the ANZ Borrower delivered pursuant to the
provisions hereof, to the performance by the Trust and the Company in all
material respects of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statements. The Registration Statements,
including any Rule 462(b) Registration Statements, have become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statements shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. Prospectuses or
Prospectuses containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 497(h) and/or Rule 424(b), as applicable, (or
a post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if the
Trust or the Company has elected to rely upon Rule 434, a Trust Term
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Sheet or a Company Term Sheet, as appropriate, shall have been filed with the
Commission in accordance with Rule 497(h) or Rule 424(b) respectively.
(b) Opinions of Counsel for Trust, etc. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of Brown & Wood LLP, Richards, Layton & Finger, P.A., Linklaters & Paines
and Michael Voisin & Co., U.S. Counsel, Delaware Counsel, U.K. Counsel and
Jersey Counsel, respectively, for the Trust, the U.K. Company, the Jersey
Subsidiary, the Jersey Holding Company and the Jersey Charitable Trust, in form
and substance satisfactory to counsel for the Underwriters.
(c) Opinions of Counsel for Company, etc. At Closing Time, the
Representatives shall have received the favorable opinions, dated as of Closing
Time, of Blake Dawson Waldron, Bell Gully Buddle Weir, and Sullivan & Cromwell,
Australian Counsel, New Zealand Counsel and U.S. Counsel, respectively, for the
Company, the Distribution Trust, the ANZ Borrower, ANZ Funds and the ANZ
Affiliate, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters.
(d) Opinion of Counsel and Advisors for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Allen Allen & Hemsley, PricewaterhouseCoopers Securities Limited and
Brown & Wood LLP, Australian Counsel, Australian tax advisor and U.S. Counsel,
respectively, for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters with respect to such matters as
the Representatives may require. In giving such opinion such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the law of
the State of New York and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(e) Opinion of Counsel for The Bank of New York. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Emmet Marvin & Martin, counsel for The Bank of New York, in its
capacities as Administrator, Custodian, Paying Agent, Depositary and Collateral
Agent, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters.
(f) Trustee's Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Trust Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs, business
prospects, management, investment objectives or investment policies of the Trust
or on the ability of the Trust to perform its obligations under this Agreement,
any Fundamental Trust Agreement or the other agreements or instruments
contemplated by this Agreement or the Trust Registration Statement, whether or
not arising in the ordinary course of business, otherwise than as set forth or
contemplated in the Trust Prospectus, and the Representatives shall have
received a certificate of the Managing Trustee, dated as of Closing
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Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties contained in Section 1(a) hereof are
true and correct with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Trust has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the Trust
Registration Statement pursuant to Section 8(d) of the 1933 Act, or order
pursuant to Section 8(e) of the 1940 Act, has been issued and no proceedings for
that purpose have been instituted or are pending or are contemplated by the
Commission.
(g) Company Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Company Prospectus, any material adverse change, or
any development which the Company has reasonable cause to believe involves a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholder's equity or results of operations of
the Company and its subsidiaries, taken as a whole, in each case whether or not
arising in the ordinary course of business, otherwise than as set forth or
contemplated in the Company Prospectus, and the Representatives shall have
received a certificate of an executive officer of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Company Registration Statement
pursuant to Section 8(d) of the 1933 Act has been issued and no proceedings for
that purpose have been instituted or are pending or are contemplated by the
Commission.
(h) Company Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from KPMG Peat Marwick a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Company Registration Statement and the Company Prospectus.
(i) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from KPMG Peat Marwick a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(j) Rating. At Closing Time, the TrUEPrS shall be rated at least "a1" by
Moody's Investor's Service ("Moody's") and A- with negative outlook by Standard
& Poor's Ratings Group ("Standard & Poor's"), a division of McGraw Hill, Inc.,
and the Company Securities shall be rated at least "a1" by Moody's and A- with
negative outlook by Standard & Poor's, and the Company shall have delivered to
the Representatives letters dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming that
the
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TrUEPrS and the Company Securities have such ratings; and since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to any of the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or
review, other than with positive implications, its rating of any of the
Company's debt securities or preferred stock.
(k) No Objection. At or prior to Closing Time, the NASD shall have
confirmed that it will not raise any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(l) Fundamental Agreements. At Closing Time, each Fundamental Trust
Agreement and Fundamental Company Document shall have been executed and
delivered by all parties thereto, and all of the conditions to the obligations
of the parties to the transactions contemplated under "Use of Proceeds and
Collateral Arrangements" in the Trust Prospectus, including the parties to each
Fundamental Trust Agreement and Fundamental Company Document, shall have been
satisfied or waived by the parties entitled to the benefit of such conditions.
(m) Approval of Listings. At Closing Time, the Securities shall have been
approved for listing on the NYSE, subject only to official notice of issuance.
(n) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Trust and the Company contained herein and the statements in any Company
certificates furnished by the Trust or the Company or any subsidiaries of the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(i) Trustee's Certificate. A certificate, dated such Date of
Delivery, of the Managing Trustee confirming that the certificate delivered
at the Closing Time pursuant to Section 5(f) hereof remains true and
correct as of such Date of Delivery.
(ii) Company Officers' Certificate. A certificate, dated such Date of
Delivery, of an executive officer of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(g) hereof remains true
and correct as of such Date of Delivery.
(iii) Opinions of Counsel for Trust, etc. The favorable opinions of
Brown & Wood LLP, Richards Layton & Finger, P.A., Linklaters & Paines, and
Michael Voisin & Co., U.S. Counsel, Delaware Counsel, U.K. Counsel and
Jersey Counsel, respectively, for the Trust, the U.K. Company, the Jersey
Subsidiary, the Jersey Holding Company and the Jersey Charitable Trust,
each in form and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
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(iv) Opinions of Counsel for Company, etc. The favorable opinions of
Blake Dawson Waldron, Bell Gully Buddle Weir and Sullivan & Cromwell,
Australian Counsel, New Zealand Counsel and U.S. Counsel, respectively, for
the Company, the Distribution Trust, the ANZ Borrower, ANZ Funds and the
ANZ Affiliate, each in form and substance reasonably satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(v) Opinions of Counsel for Underwriters. The favorable opinions of
Allen Allen & Hemsley and Brown & Wood LLP, Australian Counsel and U.S.
Counsel, respectively, for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(vi) Opinion of Counsel for The Bank of New York. The favorable
opinion of Emmet Marvin & Martin, Counsel for The Bank of New York, in its
capacities as Administrator, Custodian, Paying Agent, Depositary and
Collateral Agent, dated such Date of Delivery, substantially in the same
form and substance as the letter furnished to the Representatives pursuant
to Section 5(e) hereof.
(vii) Bring-down Comfort Letter. A letter from KPMG Peat Marwick, in
form and substance satisfactory to the Representatives and dated such Date
of Delivery, substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(i) hereof, except
that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date of
Delivery.
(o) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Trust, the Company, the U.K. Company, the Jersey Subsidiary, the
Jersey Holding Company, the Jersey Charitable Trust, the ANZ Affiliate, the
Distribution Trust and the ANZ Borrower in connection with the issuance and sale
of the Securities and the use of the proceeds therefrom as contemplated hereby
and by the Registration Statements shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 6, 7, 14 and 15 shall survive any
such termination and remain in full force and effect.
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SECTION 6. Indemnification.
---------------
(a) Indemnification of Trust and Underwriters for Company Registration
Statement and Prospectus and ADR Registration Statement and Prospectus. The
Company agrees to indemnify and hold harmless the Trust, each Underwriter and
each person, if any, who controls the Trust or any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Company Registration
Statement or the ADR Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any Company preliminary
prospectus, the Company Prospectus or the ADR Prospectus (or any amendment
or supplement thereto if the Company shall have furnished any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission to the extent not paid under clause
(i), provided that any such settlement is effected with the prior written
consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by Merrill Lynch), as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
-------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly for
use in the Company Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any Company preliminary prospectus or the Company Prospectus
(or any amendment or supplement thereto) and provided further, however,
-------- ------- -------
that the Company
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<PAGE>
shall not be liable to any Underwriter or any controlling person thereof in
connection with any offering of the Securities under the indemnity
agreement in this subsection paragraph (a) to the extent that any such
loss, liability, claim, damage and expense of such Underwriter or such
controlling person is attributable to any loss, liability, claim, damage
and expense of a person to whom such Underwriter sold such Securities to
the extent that it shall be established that there was not sent or given,
at or prior to the written confirmation of any such sale transaction, a
copy of the Company Prospectus or of the Company Prospectus as then amended
or supplemented (which was duly delivered to the Underwriter by the
Company) in any case where such delivery is required by the 1933 Act.
(b) Indemnification of Underwriters for Trust Registration Statement and
Prospectuses. The Company and the Trust, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Trust Registration
Statements (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any Trust preliminary prospectus or the Trust Prospectus (or
any amendment or supplement thereto if the Trust shall have furnished any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that any such settlement is
effected with the written consent of the Trust or the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by Merrill Lynch), as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
-------- -------
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Trust or the Company by any Underwriter through
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the Representatives expressly for use in the Registration Statements (or
any amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, or any preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) and provided further,
however, that neither the Trust nor the Company shall be liable to any
Underwriter or any controlling person thereof in connection with any
offering of TrUEPrS under the indemnity agreement in this subsection
paragraph (a) to the extent that any such loss, liability, claim, damage
and expense of such Underwriter or such controlling person is attributable
to any loss, liability, claim, damage and expense of a person to whom such
U.S Underwriter sold such Securities, to the extent that it shall be
established that there was not sent or given, at or prior to the written
confirmation of any such sale transaction, a copy of the Trust Prospectus
or of the Trust Prospectus as then amended or supplemented (which was duly
delivered to the U.S Underwriter by the Trust or the Company) in any case
where such delivery is required by the 1933 Act.
(c) Indemnification of Trust and Company and Their Directors and Officers.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Trust, the Company, their directors, each of their officers who
signed the Trust Registration Statements or the Company Registration Statement,
respectively, and each person, if any, who controls the Trust or the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsections (a) and (b) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Trust Registration Statements (or any
amendment thereto) or in the Company Registration Statement (or any amendment or
supplement thereto), as the case may be, including the Rule 430A Information and
the Rule 434 Information relating to each, if applicable, or any Trust
preliminary prospectus or the Trust Prospectus (or any amendment or supplement
thereto) or any Company preliminary prospectus or any Company Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Trust or the Company, as the case may be, by such
Underwriter through the Representatives expressly for use in the Trust
Registration Statements (or any amendment thereto) or in the Company
Registration Statement (or any amendment or supplement thereto) or such Trust
preliminary prospectus or the U.S. Trust Prospectus (or any amendment or
supplement thereto) or any Company preliminary prospectus or any Company
Prospectus (or any amendment or supplement thereto), as the case may be.
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder, except to the extent it is
materially prejudiced as a result thereof and in any event shall not relieve
such indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) or 6(b) above, counsel to the indemnified parties shall be
selected by Merrill Lynch, and, in the case of parties indemnified pursuant to
Section 6(c) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action. In no event shall the indemnifying parties be liable for
fees and expenses of
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<PAGE>
more than one counsel (in addition to any local counsel) for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party may assume the defense of such action with counsel chosen by
it and reasonably acceptable to the indemnified parties defendant in such action
(in which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below). Notwithstanding the indemnifying party's
election to assume the defense of any action and to appoint counsel to represent
the indemnified party in such an action, the indemnified party shall have the
right to employ separate counsel (including local counsel) and conduct its own
defense of such action, and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iii) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party. Notwithstanding
anything in this Agreement to the contrary, in no event shall any indemnified
party be entitled to any indemnity or contribution under this Agreement with
respect to any settlement of any matter for which indemnity is provided
hereunder that is effected without the prior written consent of the indemnifying
party.
SECTION 7. Contribution. (a) If the indemnification provided for in
Section 6(a) hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by, in
the case of the indemnifying party, the Company on the one hand and, in the case
of all the indemnified parties, the Underwriters on the other hand from the
offering of the TrUEPrS and the Company Securities pursuant to this Agreement
and the ADSs Subscription Agreement, respectively, or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of, in the case of the
33
<PAGE>
indemnifying party, the Company on the one hand and, in the case of all the
indemnified parties, the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the TrUEPrS
and the Company Securities pursuant to this Agreement and the ADSs Subscription
Agreement, respectively, shall be deemed to be in the same respective
proportions as the total proceeds from the offering of the Company Securities
pursuant to the ADSs Subscription Agreement (before deducting expenses) received
by the Company bear to the total underwriting compensation received by the
Underwriters in respect of the TrUEPrS sold pursuant to this Agreement, as set
forth on the cover of the Trust Prospectus, or, if Rule 434 is used, the
corresponding location on the Trust Term Sheet.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(b) If the indemnification provided for in Section 6(b) hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by, in the case of the indemnifying
parties, the Company on the one hand and, in the case of the indemnified
parties, the Underwriters on the other hand from the offering of the TrUEPrS and
the Company Securities pursuant to this Agreement and the Jersey Preference
Shares, respectively, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of, in the cases of the indemnifying parties, the Trust and the Company on
the one hand and, in the case of the indemnified parties, the Underwriters on
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the TrUEPrS
and the Company Securities pursuant to this Agreement and the ADSs Subscription
Agreement, respectively, shall be deemed to be in the same respective
proportions as the total proceeds from the offering of the Company Securities
pursuant to the ADSs Subscription Agreement (before deducting expenses) received
by the Company bear to the total underwriting compensation received by the
Underwriters in respect of the TrUEPrS sold pursuant to this Agreement, as set
forth on the cover of the Trust Prospectus, or, if Rule 434 is used, the
corresponding location on the Trust Term Sheet.
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<PAGE>
The relative fault of the Trust and the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Trust or the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(c) The Trust, the Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to Section 7(a) or (b) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to in Section 7(a) or (b) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the TrUEPrS underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
For purposes of this Section 7, each person, if any, who controls a
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter; (i)
each director of the Company, (ii) each officer of the Company who signed the
Company Registration Statement, and (iii) each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company; and (i) each
officer of the Trust who signed the Trust Registration Statement and (ii) each
person, if any, who controls the Trust within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Trust. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Initial Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Trust or Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Trust or the
Company, and shall survive delivery of and payment for the TrUEPrS to the
Underwriters.
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SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectuses, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business prospects, management, investment objectives or investment
policies of the Trust, or any material adverse change, or any development which
the Company has reasonable cause to believe involves a prospective material
adverse change, or in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, in each case whether or not arising in the
ordinary course of business, otherwise than as set forth or contemplated in the
Prospectuses or (ii) if there has occurred, since the time of execution of this
Agreement, any material adverse change in the financial markets in the United
States, the United Kingdom or the Australian national or international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in U.S., U.K.
or Australian national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the TrUEPrS or to
enforce contracts for the sale of the TrUEPrS, or (iii) if, since the time of
execution of this Agreement, trading in any securities of the Company has been
suspended or materially limited by the Commission, the NYSE , or the Australian
Stock Exchange Limited, or if trading generally on the London Stock Exchange,
the NYSE or the Australian Stock Exchange Limited has been suspended or
materially limited (other than a limited trading halt arising only as a result
of a request by the Company in connection with an announcement by the Company
not material and adverse to the Company), or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal, New York,
Australian or U.K. authorities or (v) if there has been any actual or
prospective change in Australian, U.K., Jersey or U.S. tax laws or regulations
or any suspension of listing or trading or delisting of the Debt Securities by
the Luxembourg Stock Exchange, in each case, that materially and adversely
affects the Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
6, 7, 14 and 15 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the TrUEPrS which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
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(a) if the number of Defaulted Securities does not exceed 10% of the
number of TrUEPrS to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
TrUEPrS to be purchased on such date, or with respect to any Date of
Delivery which occurs after the Closing Time, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, the Representatives, the Trust or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statements or Prospectus or in any other documents
or arrangements. As used herein, the term "Underwriter" includes any person
substituted for a Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Merrill Lynch at North
Tower, World Financial Center, New York, New York 10281-1201, attention of
Corporate Syndicate Department; notices to the Company shall be directed to it
at Level 14, 530 Collins Street, Melbourne, VIC 3000, Australia, attention:
Neville Mallard; and notices to the Trust shall be directed to it as c/o Puglisi
& Associates, 850 Library Avenue, Suite 204, Newark, Delaware 19715.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Trust, and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Trust and the Company and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Trust and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of TrUEPrS from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
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STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Consent to Jurisdiction. The Company agrees that any legal
suit, action or proceeding brought by any Underwriter or the Trust or by any
person controlling any Underwriter or the Trust, 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 Company has
appointed its Executive Vice President, Americas, acting through its office at
1177 Avenue of the Americas, New York, New York 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 any Underwriter
or the Trust 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 Company
and such appointment shall have been accepted by such successor authorized
agent. The Company represents and warrants that its Executive Vice President,
Americas, has agreed to act as said agent for service of process, and the
Company 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 Company shall be deemed, in every
respect, effective service of process upon the Company. Notwithstanding the
foregoing, any action based on this Agreement may be instituted by any party in
any competent court in the Commonwealth of Australia.
SECTION 15. Judgment Currency. The Trust and the Company hereby agree
to indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any judgment or order being given or made for any amount due hereunder
or under the Securities 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 such Underwriter would have
been able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such Underwriter had such Underwriter utilized such amount
of Judgment Currency to purchase U.S. dollars as promptly as practicable upon
such Underwriter's receipt thereof. The foregoing indemnity shall constitute a
separate and independent obligation of the Trust and the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include and allowance for any
customary or reasonable or premium and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
SECTION 16. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Company and the Trust in accordance with
its terms.
Very truly yours,
ANZ EXCHANGEABLE PREFERRED TRUST
By
____________________________
Title:
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED
By
____________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By __________________________________
Authorized Signatory
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
39
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial
Name of Underwriter Securities
------------------- ----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated..........................................
Morgan Stanley & Co. Incorporated..........................................
PaineWebber Incorporated...................................................
Prudential Securities Incorporated.........................................
Salomon Smith Barney Inc...................................................
----------
Total.................................................. ----------
</TABLE>
40
<PAGE>
EXHIBIT 99(J)
CUSTODIAN AGREEMENT
This CUSTODIAN AGREEMENT dated as of this 1st day of September, 1998 (the
"Agreement"), by and between The Bank of New York, a New York banking
corporation (the "Custodian"), and ANZ Exchangeable Preferred Trust (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 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, the Trustees named
therein, Emma Nakakuki, as depositor and the Holders from time to time, to be
dated as of September 1, 1998, as such agreement may be amended from time to
time (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 Trust Units
Exchangeable for Preference Shares(SM) ("TrUEPrS(SM)") in accordance with the
terms and conditions of the Trust Agreement and investing the proceeds thereof
in and holding Mandatorily Redeemable Debt Securities due 2047 (the "Debt
Securities") issued by Carlotta (U.K) Company, a special purpose unlimited
liability company incorporated under the laws of England and Wales (the "U.K.
Company");
WHEREAS, the Trust desires to engage the services of the Custodian to
assume certain responsibilities and to perform certain custodial duties for the
Trust; and
WHEREAS, the Custodian 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:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall have
the respective meanings specified in the Trust Agreement.
2. APPOINTMENT OF CUSTODIAN; TRANSFER OF ASSETS. The Trust hereby
constitutes and appoints the Custodian, and the Custodian accepts such
appointment, to act as agent of the Trust and as custodian of all of the
property at any time owned or held by the Trust, including but not limited to,
the Debt Securities, the ADSs Purchase Contract, any cash and any other property
at any time owned or held by the Trust (collectively, the "Assets") on the terms
and subject to the conditions set forth in this Agreement. The Custodian
acknowledges and agrees that in its capacity as Custodian it will hold the Debt
Securities as common depositary
- --------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
to Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System ("Euroclear") and Cedel Bank, societe anonyme ("Cedel").
The Trust hereby deposits the Assets as of the date hereof with the Custodian
and the Custodian hereby accepts such into its custody, and the Trust shall
deliver to the Custodian all of the Assets, including all monies, securities and
other property received by the Trust at any time during the period of this
Agreement, subject to the following terms and conditions. The Custodian hereby
agrees that it shall hold the Assets in a segregated custody account, separate
and distinct from all other accounts, in accordance with Section 17(f) of, and
in such manner as shall constitute the segregation and holding in trust within
the meaning of, the Investment Company Act and the rules and regulations
thereunder. The Trust authorizes the Custodian, for any Assets held hereunder,
to use the services of any United States securities depository permitted to
perform such services for registered investment companies and their custodians
under Rule 17f-4 under the Investment Company Act and which has been approved by
the Trust, including but not limited to, The Depository Trust Company, the
Federal Reserve Book Entry System, Euroclear and Cedel. The Custodian shall be
under no duty or obligation to inspect, review or examine any Assets to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
3. ASSET DISPOSITION; EXAMINATIONS. The Custodian shall have no power or
authority to assign, hypothecate, pledge or otherwise dispose of the Assets,
except pursuant to a written direction in accordance with Section 4 below and
then only for the account of the Trust. The Assets shall not be subject to any
lien, security interest, encumbrance, right of set-off or charge of any kind in
favor of the Custodian for itself or for any other Person claiming through the
Custodian. The Custodian shall permit actual examination of the Assets by the
Trust's independent public accountant at the end of each annual and semi-annual
fiscal period of the Trust and at least one other time during the fiscal year of
the Trust chosen by such independent public accountant and shall permit the
inspection of the Assets by the Commission through its employees or agents
during the normal business hours of the Custodian upon reasonable request.
4. AUTHORIZED ACTIONS. The Custodian shall take such reasonable actions
with respect to the Assets as directed in writing by the Trust or by any officer
of the Administrator duly authorized by the Trustees to give written
instructions on behalf of the Trust and named in such certified resolutions of
the Trustees, as may be received by the Custodian from time to time.
5. CUSTODIAN'S ACTIONS TAKEN IN GOOD FAITH. In connection with the
performance of its duties under this Agreement, the Custodian shall have no
duties or obligations other than those specifically set forth herein or in the
Trust Agreement or as may subsequently be agreed in writing by the parties
hereto and shall be under no liability to the Trust or any Holder for any action
taken in good faith in reliance on any paper, order, certification, list,
demand, request, consent, affidavit, notice, opinion, direction, endorsement,
assignment, resolution, draft or other document, prima facie properly executed
by or on behalf of the Trust, or for the disposition of the Assets pursuant to
the Trust Agreement or in respect of any action taken or suffered under the
Trust Agreement in good faith, in accordance with an opinion of counsel or at
the direction of the Trust pursuant hereto; provided that this provision shall
not protect the Custodian against any liability to which it would otherwise be
subject by reason of its willful
2
<PAGE>
misfeasance, bad faith or gross negligence in the performance of its duties, or
its reckless disregard of its obligations and duties hereunder.
Notwithstanding any other provision of this Agreement, the Custodian shall
under no circumstances be liable for any punitive, exemplary, indirect or
consequential damages.
6. TRUST AGREEMENT VALIDITY. The Custodian shall not be responsible for
the validity or sufficiency of the Trust Agreement or the due execution thereof,
or for the form, character, genuineness, sufficiency, value or validity of any
of the Assets and the Custodian shall in no event assume or incur any liability,
duty or obligation to any Holder or to the Trust, other than as expressly
provided for herein. The Custodian shall not be responsible for or in respect
of the validity of any signature by or on behalf of the Trust.
7. LITIGATION OBLIGATIONS, COSTS AND INDEMNITY. The Custodian shall not
be under any obligation to appear in, prosecute or defend any action which in
its opinion may involve it in expense or liability, unless it shall be furnished
with such reasonable security and indemnity against such expense or liability as
it may require, and any reasonable pecuniary costs of the Custodian from such
actions shall be expenses which are reimbursable pursuant to Section 13 hereof.
8. TAXES; TRUST EXPENSES. In no event shall the Custodian be personally
liable for any taxes or other governmental charges imposed upon or in respect of
the Assets or upon the monies, securities or other properties included therein.
The Custodian shall be reimbursed and indemnified by the Trust for all such
taxes and charges, for any tax or charge imposed against the Trust and for any
reasonable expenses, including reasonable counsel fees, interest, penalties and
additions to tax which the Custodian may sustain or incur with respect to such
taxes or charges.
9. CUSTODIAN RESIGNATION, SUCCESSION. (a) The Custodian may resign by
executing an instrument in writing resigning as Custodian and delivering the
same to the Trust, not less than 60 days before the date specified in such
instrument when, subject to subsection (b) of this Section 9, such resignation
is to take effect. Upon receiving such notice of resignation, the Trust shall
use its reasonable efforts promptly to appoint a successor Custodian (and, for
as long as the Debt Securities are held in either Euroclear or Cedel, authorized
by either of Euroclear or Cedel, as appropriate, to act as its depositary) in
the manner and meeting the qualifications provided in the Trust Agreement, by
written instrument or instruments delivered to the resigning Custodian and the
successor Custodian.
(b) In case no successor Custodian shall have been appointed within 30 days
after notice of resignation has been received by the Trust, the resigning
Custodian may forthwith apply to a court of competent jurisdiction for the
appointment of a successor Custodian. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribed, appoint a successor
Custodian, provided that, for as long as the Debt Securities are held in either
Euroclear or Cedel, such successor Custodian is an institution authorized by
either of Euroclear or Cedel, as appropriate, to act as its depositary.
3
<PAGE>
10. CUSTODIAN REMOVAL. The Trust may remove the Custodian upon 60 days
prior written notice to the Custodian and appoint a successor Custodian. In
case at any time the Custodian shall not meet the requirements set forth in the
Trust Agreement or shall become incapable of acting or if a court having
jurisdiction shall enter a decree or order for relief in respect of the
Custodian in an involuntary case, or the Custodian shall commence a voluntary
case, under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect, or any receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) for the Custodian or for any substantial part
of its property shall be appointed, or the Custodian shall make any general
assignment for the benefit of creditors, or shall generally fail to pay its
debts as they become due, the Trust may remove the Custodian immediately and
appoint a successor Custodian, provided that, for as long as the Debt Securities
are held in either Euroclear or Cedel, such successor Custodian is an
institution authorized by either of Euroclear or Cedel, as appropriate, to act
as its depositary. The termination of the Administration Agreement or the
Paying Agent Agreement shall cause the removal of the Custodian simultaneously
therewith.
11. TRANSFERS TO SUCCESSOR CUSTODIAN. Upon the request of any successor
Custodian, the Custodian hereunder shall, upon payment of all amounts due it,
execute and deliver an instrument acknowledged by it transferring to such
successor Custodian all the rights and powers of the resigning Custodian; and
the resigning Custodian shall transfer, deliver and pay over to the successor
Custodian the Assets at the time held by it hereunder, if any, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the records or copies
thereof maintained by the resigning Custodian in the administration hereof as
may be requested by the successor Custodian, and shall thereupon be discharged
from all duties and responsibilities hereunder. Any resignation or removal of
the Custodian shall become effective upon such acceptance of appointment by the
successor Custodian. The indemnification of the resigning Custodian provided
for hereunder shall survive any resignation, discharge or removal of the
Custodian hereunder.
12. CUSTODIAN MERGER, CONSOLIDATION. Any corporation into which the
Custodian 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 Custodian shall be a party, shall be the successor Custodian 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
and provided that, for as long as the Debt Securities are held in either
Euroclear or Cedel, such successor Custodian is an institution authorized by
either of Euroclear or Cedel, as appropriate, to act as its depositary.
13. COMPENSATION; EXPENSES. The Custodian shall receive compensation for
performing the usual, ordinary, normal and recurring services under this
Custodian Agreement and, with the prior written approval of the Trust,
reimbursement for any and all reasonable expenses and disbursements incurred
hereunder, in each case as provided in Section 3.1 of the Administration
Agreement.
14. SECTION 17(f) QUALIFICATION. The Custodian hereby represents that it
is qualified to act as a custodian under Section 17(f) of the Investment Company
Act.
4
<PAGE>
15. INDEMNIFICATION. The Trust shall, to the fullest extent permitted by
applicable law, indemnify and hold the Custodian harmless from and against any
loss, damages, liability or claim incurred by reason of any inaccuracy in
information furnished to the Custodian by the Trust, or any act or omission in
the course of, connected with or arising out of any services to be rendered
hereunder, and any reasonable cost or expense (including the reasonable costs of
investigation, preparation for and defense of legal and/or administrative
proceedings related to a claim against it and reasonable attorneys' fees and
disbursements) incurred in connection with any such loss, damages, liability or
claim, provided that the Custodian shall not be indemnified and held harmless
from and against any such loss, damages, liability, claim or reasonable cost or
expense arising from its willful misfeasance, bad faith or gross negligence in
the performance of its duties, or its reckless disregard of its duties and
obligations hereunder. Notwithstanding the foregoing, it is understood that (i)
the Trust shall not, in respect of the legal expenses of the Custodian 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 prior 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 Custodian from and against any loss
or liability by reason of such settlement or judgment, (iii) the Trust may not
pay any amounts to the Custodian under this Section 15 from 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 Custodian 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, damages, cost, liability or claim. Neither the
Federal Reserve Book Entry System nor The Depository Trust Company shall be
deemed to be agents of the Custodian.
16. RIGHTS OF SET-OFF; BANKER'S LIEN. The Custodian hereby waives all
rights of set-off or banker's lien it may have with respect to the Assets held
by it as Custodian hereunder.
17. TERMINATION. This Agreement shall terminate upon the earlier of the
dissolution of the Trust or the appointment of a successor Custodian.
18. 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.
19. NOTICES. All notices 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 19):
5
<PAGE>
The Trust: ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19715
Telephone: (302) 738-6680
Telecopier: (302) 738-7210
The Custodian: The Bank of New York
101 Barclay Street
New York, New York 10286
Attn: Hugo Gindraux
Telephone: (212) 815-
Telecopier: (212) 815-5999
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 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 or registered 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). "Business Day" means each Monday,
Tuesday, Wednesday, Thursday or Friday which is not a day on which banking
institutions in Sydney, Australia, New York, New York or any other city or
cities in which the principal place of business of any ANZ Borrower is located
(initially Wellington, New Zealand) are authorized or obliged by law or
executive order to close.
20. NO THIRD PARTY BENEFICIARIES. Nothing herein, express or implied,
shall give to any Person, other than the Trust, the Custodian and their
respective successors and permitted assigns, any benefit of any legal or
equitable right, remedy or claim hereunder.
21. AMENDMENTS; TRUST AGREEMENT CHANGES; WAIVER. 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 the party to be charged. The Trust shall notify the Custodian
of any change in the Trust Agreement prior to the effective date of any such
change. 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
<PAGE>
22. 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.
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ANZ EXCHANGEABLE PREFERRED TRUST
By_____________________________________
Donald J. Puglisi,
as Managing Trustee
THE BANK OF NEW YORK
By_____________________________________
Name:
Title:
8
<PAGE>
EXHIBIT 99(k)(1)
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT dated as of this ____ day of September, 1998
(this "Agreement"), by and between The Bank of New York, a New York banking
corporation (the "Administrator"), and ANZ Exchangeable Preferred Trust (such
trust and the trustees thereof acting in their capacity as such being referred
to herein as the "Trust"), a business trust created pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)), and governed by the Second Amended and
Restated Trust Agreement, by and among ML IBK Positions, Inc., as sponsor, the
Trustees named therein, and the Holders from time to time, dated as of September
__, 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 Trust Units
Exchangeable for Preference Shares(SM) ("TrUEPrS(SM") in accordance with the
terms and conditions of the Trust Agreement and investing the proceeds thereof
in and holding Mandatorily Redeemable Debt Securities due 2047 (the "Debt
Securities") issued by Carlotta (UK) Company, a special purpose unlimited
company incorporated under the laws of England and Wales (the "U.K. Company");
WHEREAS, the Trust desires to engage the services of the Administrator to
assume certain duties and responsibilities of the Trustees under the Trust
Agreement and the Investment Company Act and to undertake certain services on
behalf of and subject to the supervision of the Trustees as provided herein; and
WHEREAS, the Administrator is qualified and willing to assume such duties
and responsibilities and to undertake to render such services, subject to the
supervision of the Trustees, 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.
- -------------------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
ARTICLE II
ENGAGEMENT OF ADMINISTRATOR
2.1 ENGAGEMENT. The Trust hereby engages the Administrator, and the
Administrator hereby agrees to be so engaged, to provide or cause the provision
of the services hereinafter enumerated.
2.2 SERVICES OF ADMINISTRATOR. Subject to the supervision of the
Trustees, the Administrator shall on behalf of the Trust take the actions set
forth in Sections 2.06 and 2.07 of the Trust Agreement, to the extent such
responsibilities can lawfully be delegated to the Administrator; provided,
however, that the Administrator shall not (i) render investment advisory
services to the Trust as defined in the Investment Company Act or the Investment
Advisers Act of 1940, as amended; (ii) have the power of the Trustees to sell
the TrUEPrS; or (iii) have the power to select the independent public
accountants for the Trust. Additionally, the Administrator shall be responsible
for rendering the following services to the Trust:
(a) pay, or cause the Paying Agent (as defined herein) to pay,
Merrill Lynch & Co., Inc. ("Merrill Lynch"), out of the facility fee paid
on the Issue Date to the Trust by the U.K. Company in connection with the
investment by the Trust in the Debt Securities, but in no event out of the
Trust Estate, certain fees and expenses of the Trust incurred by Merrill
Lynch in connection with the offering of the TrUEPrS and the organization
of the Trust (the "Reimbursed Up-Front Expenses") pursuant to the Trust
Reimbursement Agreement as specified in Schedule I hereof;
(b) pay, or cause the Paying Agent to pay, out of the facility
fee to be paid on the Issue Date to the Administrator by the U.K. Company
in connection with the investment by the Trust in the Debt Securities, but
in no event out of the Trust Estate, the fees and expenses of the Trust
incurred in connection with the offering of the TrUEPrS and the
organization of the Trust other than Reimbursed Up-Front Expenses and
certain ongoing fees and expenses of the Trust ("Other Up-Front Expenses")
as specified in Schedule II hereof;
(c) pay, or cause the Paying Agent to pay, all demands, bills and
invoices for certain ongoing fees and expenses of the Trust (the "Ongoing
Expenses") incurred by or on behalf of the Trust, including those specified
in Schedule III for the quarterly dividend period commencing October 15,
1998, out of moneys paid to the Administrator pursuant to the Trust Expense
Agreement or the Expense and Indemnity Agreement, but in no event out of
the Trust Estate;
(d) instruct the Paying Agent on behalf of the Trust to take the
actions set forth in Sections 2.06, 2.07, 5.02, 5.03, 7.02 and 7.03 and
Article III of the Trust Agreement and to otherwise perform the duties of
the Paying Agent referred to in the Trust Agreement;
2
<PAGE>
(e) calculate on a quarterly basis the Trust's Estimated Expense
and Cash Balance (each as defined in the Expense and Indemnity Agreement,
dated as of September __, 1998 (the "Expense and Indemnity Agreement"),
among the Trust, the U.K. Company, the Jersey Subsidiary, the Jersey
Holding Company, the Jersey Charitable Trust and the ANZ Affiliate) and
provide such calculations to the U.K. Company and the ANZ Affiliate
pursuant to Section 5 of the Expense and Indemnity Agreement;
(f) with the approval of the Trustees, engage legal and other
professional advisors, other than the Trust's independent accountants as
provided in clause 2.2 (iii) above, to perform services on behalf of the
Trust;
(g) give notice to the U.K. Company and the ANZ Affiliate of any
claim for fees and expenses, including any indemnification expenses,
pursuant to Sections 2 and 3 of the Expense and Indemnity Agreement, and
pay, or cause the Paying Agent to pay, all demands, bills and invoices for
such fees and expenses incurred by or on behalf of the Trust, out of moneys
paid to the Administrator pursuant to the Expense and Indemnity Agreement,
but in no event out of the Trust Estate;
(h) (i) cause the legal and other professional advisors engaged
pursuant to Section 2.2(f) to prepare and mail, file or publish, or, as
appropriate, direct the Paying Agent to prepare and mail, file or publish,
any notices, proxies, reports, statements and other communications required
to be mailed or published pursuant to the Trust Agreement and the
Investment Company Act,
(ii) keep (or cause to be kept) all the books and records
of the Trust (other than those to be kept by the Paying Agent),
and
(iii) cause the legal and other professional advisors
engaged pursuant to Section 2.2(f) to prepare and, as necessary,
file any and all reports, returns and other documents as required
under the Investment Company Act, the Securities Act of 1933, as
amended (the "Securities Act"), the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or the Internal Revenue
Code of 1986, as amended, or, as reasonably requested by the
Trustees, under any other applicable laws, rules or regulations
or otherwise; provided, however, that responsibility for the
adequacy and accuracy of any such reports, returns and other
documents shall be that of the Trustees and provided, further,
that the Administrator shall have no liability for the adequacy
or accuracy of such reports, returns and other documents;
(i) at the request of the Trust and upon being furnished with
such reasonable security and indemnity against any related expense or
liability as the Administrator may require, institute and prosecute, in
accordance with the instructions of
3
<PAGE>
the Trust, legal or other appropriate proceedings to enforce any and all
rights and remedies of the Trust;
(j) review on behalf of the Trust all notices, reports,
certificates and other documents regarding the TrUEPrS and the Debt
Securities;
(k) make or cause to be made all necessary arrangements with
respect to meetings of Trustees and meetings of Holders, including, without
limitation, the preparation of notices, proxies and minutes, subject to the
approval of the Trust;
(l) in conjunction with the Trust, determine and publish (or
cause to be determined and published), in such manner as the Trust shall
direct in writing, the Trust's net asset value in accordance with Section
7.02(c) of the Trust Agreement and the Trust's policy as set forth in the
Prospectus; and
(m) as soon as reasonably practicable after the applicable
Exchange Event, if any, notify DTC and publish (or cause to be published) a
notice in The Wall Street Journal or another daily newspaper of national
circulation in the United States stating the Exchange Date, whether
American Depositary Receipts or cash, as applicable, will be delivered in
exchange for the TrUEPrS and such other information as the Administrator
deems advisable.
2.3 CERTAIN RIGHTS OF THE ADMINISTRATOR. In connection with the
performance of its duties under this Agreement, the Administrator shall not be
liable to the Trust, the Trustees or any Holder (i) for any action taken or for
refraining from taking any action hereunder except in the case of its willful
misfeasance, bad faith, gross negligence or the reckless disregard of its duties
hereunder, (ii) with respect to any action taken or omitted to be taken by it in
good faith in accordance with the directions of the Trust or of any Trustee or
(iii) in connection with the performance of its duties under Section 2.2(l)
hereof, for good faith reliance upon information furnished by third parties
selected by the Administrator with due care. The Administrator shall under no
circumstances be liable for any punitive, exemplary, indirect or consequential
damages. The Administrator may consult with counsel and the written 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. The Administrator may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys appointed
with due care by it 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
Administrator itself (except to the extent that the Trustees shall have directed
the Administrator to retain such persons in which event the Administrator shall
not be liable for such persons' acts or omissions). Without limiting the
generality of the preceding sentence, the Administrator (i) may select and
employ independent accountants acceptable to the Trustees (other than the
independent public accountants referred to in clause (iii) of the first sentence
of Section 2.2 of this Agreement and Section 2.05(d) of the Trust Agreement) to
keep the financial books and records of the Trust, to prepare the financial
statements of the Trust and to prepare Trust tax
4
<PAGE>
returns, and (ii) may select and engage attorneys acceptable to the Trustees to
prepare annual, semi-annual and periodical reports, notices of meetings and
proxy statements, annual reports to holders of the TrUEPrS and other documents
required under the Investment Company Act, the Securities Act or the Exchange
Act. The Administrator shall not be liable and shall be fully protected in
acting upon any writing or document reasonably believed by it to be genuine and
to have been given, signed or made by the proper person or persons and shall not
be held to have any notice of any change of authority of any person until
receipt of written notice thereof from a Trustee.
2.4 POWER OF ATTORNEY. The Trust hereby appoints the Administrator,
acting through any duly appointed officer, as its attorney-in-fact and agent for
the purpose of performing the duties prescribed in Sections 2.2(h)(iii) and
2.2(k).
2.5 DELIVERY OF CERTAIN DOCUMENTS. The Trust will deliver to the
Administrator, promptly following the execution hereof: (a) a complete conformed
copy of the registration statement of the Trust under the Securities Act and the
Investment Company Act, including all amendments, exhibits and schedules
thereto; and (b) the EDGAR access codes (Central Index Key, CIK Confirmation
Code, Password and Password Modification Access Code) employed to file such
registration statement.
ARTICLE III
COMPENSATION OF ADMINISTRATOR
3.1 COMPENSATION. (a) For services to be rendered by the Administrator
pursuant to this Agreement, as custodian under the Custodian Agreement, dated as
of September 1, 1998 (the "Custodian Agreement"), between the Administrator, as
custodian, and the Trust, and as paying agent, transfer agent and registrar (the
"Paying Agent") under the Paying Agent Agreement, dated as of September __,
1998, between the Administrator, as the Paying Agent, and the Trust, the
Administrator shall receive its compensation only from the facility fee referred
to in Section 2.2(b) hereof and from the payments under the Trust Expense
Agreement and the Expense and Indemnity Agreement and shall have no recourse to
the Trust Estate for its compensation.
(b) In connection with the performance of the services referred to in
Section 3.1(a), the Administrator, as such or in any other capacity, shall not
be required to advance, expend or risk its own funds or otherwise incur or
become exposed to financial liability in the performance of its duties hereunder
or under the other agreements referred to in Section 3.1(a).
3.2 ADDITIONAL SERVICES. If and to the extent that the Trust shall
request the Administrator to render services for the Trust, other than those to
be rendered by the Administrator hereunder, and if the Administrator agrees to
render such services, such additional services shall be compensated separately
on terms to be agreed upon between the Administrator and the Trust from time to
time.
5
<PAGE>
ARTICLE IV
TERMINATION
4.1 TERMINATION.
(a) This Agreement shall terminate immediately upon written notice of
termination from the Trust to the Administrator if any of the following events
shall occur:
(i) if the Administrator shall violate any provision of
this Agreement, the Trust Agreement, or the Investment Company Act,
and after notice of such violation, shall not cure such violation
within 30 days; or
(ii) if the Administrator shall be adjudged bankrupt or
insolvent by a court of competent jurisdiction, or an order shall be
made by a court of competent jurisdiction for the appointment of a
receiver, liquidator, or trustee of the Administrator, or of all or
substantially all of its property by reason of the foregoing, or
approving any petition filed against the Administrator for its
reorganization, and such adjudication or order shall remain in force
or unstayed for a period of 30 days; or
(iii) if the Administrator shall institute proceedings for
voluntary bankruptcy, or shall file a petition seeking reorganization
under the Federal bankruptcy laws, or for relief under any law for the
relief of debtors, or shall consent to the appointment of a receiver
of the Administrator or of all or substantially all of its property,
or shall make a general assignment for the benefit of its creditors,
or shall admit in writing its inability to pay its debts generally as
they become due; or
(iv) upon the voluntary or involuntary dissolution of the
Administrator or the merger or consolidation of the Administrator with
any other entity.
If any of the events specified in clauses (ii), (iii) or (iv) of this
Section 4.1(a) shall occur, the Administrator shall give immediate written
notice thereof to the Trust.
(b) Notwithstanding anything to the contrary contained herein, this
Agreement shall terminate immediately (i) upon termination of the Trust
Agreement, (ii) upon termination of the Paying Agent Agreement, (iii) upon
termination of the Custodian Agreement or (iv) upon the resignation or removal
of the Custodian and no successor Custodian is appointed pursuant to Section 9
or 10 of the Custodian Agreement.
(c) The Trust may remove the Administrator, or the Administrator may
resign, and thereby terminate this Agreement without penalty upon 60 days prior
written notice to the other party hereto; provided that no termination of this
Agreement pursuant to this Section 4.1(c) or otherwise shall be effective unless
a successor Administrator shall have been appointed
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and shall have accepted the duties of the Administrator. If, within 30 days
after notice by the Administrator to the Trust of termination of this Agreement,
no successor Administrator shall have been selected and accepted the duties of
the Administrator, the Administrator may apply to a court of competent
jurisdiction for the appointment of a successor Administrator.
4.2 EFFECT OF TERMINATION. The Administrator shall forthwith upon
termination of this Agreement deliver to the Trust any records or other property
of the Trust then in the possession or custody of the Administrator. Any
obligation to indemnify the Administrator pursuant to Section 6.6 shall survive
the termination of this Agreement.
ARTICLE V
RECORDS AND REPORTS
5.1 BOOKS AND RECORDS; INSPECTION AND COPYING. The Administrator shall
keep, or cause to be kept, appropriate, and reasonably detailed and accurate,
books and records of all its activities pursuant to this Agreement. The Trust
or any of its designated agents shall have the right to inspect such books and
records during the Administrator's normal business hours upon reasonable
request, and to make copies of the same at the expense of the Trust.
5.2 ACCESS TO INFORMATION. The Administrator shall make available to the
Trust and its designated agents all information it receives and compiles with
respect to the TrUEPrS and the Debt Securities, the moneys available to the
Trust, the financial condition of the Trust and all other relevant matters
concerning the Trust.
ARTICLE VI
MISCELLANEOUS
6.1 BINDING EFFECT; SUCCESSORS AND ASSIGNS. Any corporation into which
the Administrator 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 Administrator shall be a party, shall be the
successor Administrator 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 Agreement shall be binding
on and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the matters contained herein and supersedes
all prior agreements or understandings, whether oral or written. This Agreement
shall not be amended, changed, modified, or discharged, in whole or in part,
except by an instrument in writing signed by both parties hereto or their
respective successors or permitted assigns.
7
<PAGE>
6.3 NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other address for a particular party as shall be specified by such
party in a like notice given pursuant to this Section 6.3):
The Trust: ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19715
Telephone: (302) 738-6680
Telecopier: (302) 738-7210
The Administrator: The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Hugo Gindraux
Telephone: (212) 815-5120
Telecopier: (212) 815-5999
The ANZ Affiliate: ANZMB Limited
Minerva House
Montague Close, London SE1 9DH
Telecopier: 44-171-378-2524
Attention: Company Secretary
The U.K. Company: Carlotta (UK) Company
c/o Linklaters & Paines
One Silk Street
London EC2Y 8HQ
Telecopier: 44-171-456-2222
Attention: Maria Coombe
Except as otherwise specifically provided herein, all notices, reports and
other communications provided for hereunder shall be in writing and, unless some
other method of giving such notice, report or other communication is accepted by
the party to whom it is to be given or is required by the Trust Agreement or the
Investment Company Act, 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
8
<PAGE>
delivery shall be deemed to have been received on the immediately succeeding
Business Day), or (iii) sent by certified or registered 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).
6.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
6.5 NON-ASSIGNABILITY. This Agreement and the rights and obligations of
the parties hereunder may not be assigned or delegated by either party without
the prior written consent of the other party.
6.6 INDEMNIFICATION. The Trust shall indemnify and hold the Administrator
harmless from and against any loss, damages, cost, liability or claim incurred
by reason of any inaccuracy in information furnished to the Administrator by the
Trustees, or any act or omission in the course of, connected with or arising out
of any services to be rendered hereunder, and any reasonable expense (including
the reasonable costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements) incurred in connection with any such loss,
damages, cost, liability or claim, provided that the Administrator shall not be
indemnified and held harmless from and against any such loss, damages, cost,
liability, claim or reasonable expense incurred by reason of its willful
misfeasance, bad faith, or gross negligence in the performance of its duties, or
its reckless disregard of its duties and obligations hereunder. Notwithstanding
the foregoing, it is understood that (i) the Trust shall not, in respect of the
legal expenses of the Administrator 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
Administrator from and against any loss or liability by reason of such
settlement or judgment, (iii) the Trust may not pay any amounts to the
Administrator under this Section 6.6 from 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 Administrator 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, damages,
cost, liability or claim.
6.7 PROVISIONS OF LAW TO CONTROL. This Agreement shall be subject to the
applicable provisions of the Investment Company Act and the rules and
regulations of the Commission thereunder. To the extent that any provisions
herein contained conflict with any
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<PAGE>
applicable provisions of the Investment Company Act or such rules and
regulations, the latter shall control.
6.8 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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<PAGE>
IN WITNESS WHEREOF the parties have hereunto executed this Administration
Agreement as of the day and year first above written.
ANZ EXCHANGEABLE PREFERRED TRUST
By:____________________________
Donald J. Puglisi,
as Managing Trustee
THE BANK OF NEW YORK
By:_________________________
Name:
Title:
11
<PAGE>
SCHEDULE I
Reimbursed Up-Front Expenses
Item Amount
- ----- -----------
SEC Registration Fee $169,625.00
NASD Fee 30,500.00
-----------
Total $200,125.00
12
<PAGE>
SCHEDULE II
Other Up-Front Expenses
Item Amount
- ----- -----------
NYSE Original Listing Fee $ 86,300.00
NYSE Continuing Listing Fee 10,000.00
Printing:
N-2 100,000.00
Trust Securities Certificates 1,600.00
Legal Fees:
Brown & Wood LLP
Sullivan & Cromwell 10,000.00
Richards, Layton & Finger 30,000.00
Emmet, Marvin & Martin 15,000.00
Accountants' Fee:
McGladrey & Pullen LLP 0.00
Deloitte & Touche LLP 5,000.00
PricewaterhouseCoopers 10,000.00
Rating Agency Fees
Moody's 20,000.00
Standard & Poors 40,000.00
Administrative Fees:
Initial Acceptance Fee 7,500.00
Payable in Advance on Closing 5,000.00
Trustees' Fees Payable in Advance 3,000.00
Blue Sky Fees 2,000.00
Fee for Tombstone Advertisement 25,000.00
CT Corporation
Fee for certified copies of certain certificates 259.00
Fee for process agent 170.00
Fee for process agent (annual fees payable in advance) 6,370.00
RL&F Service Corp (Delaware agent) 100.00
Security Interest UCC Filing Fees 1,000.00
Miscellaneous:
Fees 40,000.00
Expenses 10,000.00
-----------
Total $428,299.00
13
<PAGE>
SCHEDULE III
On-Going Expenses
10/15/98 - 1/14/99
<TABLE>
<CAPTION>
Service Provider Description of Services Date Payable Amount
- ------------------ ------------------------ ----------------- -----------
<S> <C> <C> <C>
New York Stock Exchange Continuing Listing Fee January 1, 1999 $ 32,340.00
Brown & Wood LLP Legal Fees October 15, 1998 30,000.00
McGladrey & Pullen LLP Accountant's Fee October 15, 1998 4,000.00
Deloitte & Touche LLP Independent Public Accountant's Fee October 15, 1998 3,750.00
Standard & Poor's Ratings Group Rating Agency Fees October 15, 1998 2,500.00
Bank of New York Administrator's Fee October 15, 1998 10,000.00
Bank of New York Paying Agent's Fee October 15, 1998 1,250.00
Bank of New York Custodian's Fee October 15, 1998 2,500.00
Bank of New York Depositary's Fee October 15, 1998 2,500.00
Bank of New York Collateral Agent's Fee October 15, 1998 2,500.00
Trustees Trustees Fees October 15, 1998 3,000.00
RL&F Service Corp Delaware Registered Agent -
Bank of New York Mailing of Reports to Shareholders October 15, 1998 3,750.00
Other Miscellaneous October 15, 1998 5,000.00
-----------
Total $103,090.00
===========
</TABLE>
14
<PAGE>
EXHIBIT 99(K)(2)
PAYING AGENT AGREEMENT
This PAYING AGENT AGREEMENT dated as of this ____ day of September, 1998
(this "Agreement"), by and between The Bank of New York, a New York banking
corporation (the "Paying Agent"), and ANZ Exchangeable Preferred Trust (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 the
Second Amended and Restated Trust Agreement by and among ML IBK Positions, Inc.,
as sponsor, the Trustees named therein and the Holders from time to time, dated
as of September __, 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 Trust Units
Exchangeable for Preference SharesSM ("TrUEPrS(SM)") in accordance with the
terms and conditions of the Trust Agreement and investing the proceeds thereof
in and holding Mandatorily Redeemable Debt Securities due 2047 (the "Debt
Securities") issued by Carlotta (U.K) 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.
- --------------------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
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, 5.02, 5.03, 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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<PAGE>
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
the name of the designated transferee or transferees, upon surrender of the old
certificates in form deemed by the Paying Agent properly endorsed for transfer
with (a) all necessary endorsers' signatures guaranteed in such manner and form
as the Paying Agent may require by a guarantor reasonably believed by the Paying
Agent to be responsible, (b) such assurances as the Paying Agent shall deem
necessary or appropriate to evidence the genuineness and effectiveness of each
necessary endorsement and (c) satisfactory evidence of compliance with all
applicable laws relating to the collection of taxes or funds necessary for the
payment of such taxes.
3.4 LOST CERTIFICATES. If there shall be delivered to the Paying Agent
(i) evidence to its satisfaction of the destruction, loss or theft of any
certificate for a TrUEPrS and (ii) such security or indemnity as may be required
by it to hold it and any of its agents harmless, then, in the absence of notice
to the Paying Agent that such certificate has been acquired by a bona fide
purchaser, the Managing Trustee shall execute and upon its request the Paying
Agent shall countersign and deliver, in lieu of any such destroyed, lost or
stolen certificate, a new certificate of like tenor, and bearing a number not
contemporaneously outstanding. Any request by the Managing Trustee to the
Paying Agent to issue a replacement or new certificate pursuant to this Section
3.4 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. If after the delivery of such new certificate, a bona fide
purchaser of the original certificate in lieu of which such new certificate was
issued presents for payment such original certificate, the Trust and the Paying
Agent shall be entitled to recover such new certificate from the person to whom
it was delivered or any transferee thereof, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Trust or the
Paying Agent in connection therewith. Upon the issuance of any new certificate
under this Section 3.4, the Trust and the Paying Agent may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Paying Agent) connected therewith.
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
3
<PAGE>
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;
(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.
4
<PAGE>
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 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
5
<PAGE>
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.
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
6
<PAGE>
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
c/o Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19715
Telephone: (302) 738-6680
Telecopier: (302) 738-7210
The Paying Agent: The Bank of New York
101 Barclay Street
New York, New York 10286
Attn: Hugo Gindraux
Telephone: (212) 815-
Telecopier: (212) 815-5999
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.
7
<PAGE>
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 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.
8
<PAGE>
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
By: __________________________
Donald J. Puglisi,
as Managing Trustee
THE BANK OF NEW YORK
By: __________________________
Name:
Title:
9
<PAGE>
EXHIBIT EX99(k)(3)
NO.________ PRINCIPAL AMOUNT
US$________
CARLOTTA (UK) COMPANY
____% MANDATORILY REDEEMABLE DEBT SECURITY
DUE 2047
CARLOTTA (UK) COMPANY, a special purpose company incorporated with
unlimited liability under the laws of England and Wales (the "Company," which
term includes any successor corporation), for value received, hereby promises to
pay to the bearer (the "Holder") of this Mandatorily Redeemable Debt Security
(this "Security") upon presentation and surrender of this Security to the
Company or its agent at an office or agency maintained for such purpose in the
Borough of Manhattan, The City of New York, the Mandatory Redemption Amount (as
defined herein) and to pay interest to the Holder upon presentation of this
Security to the Company or its agent at such office or agency or at an office or
agency maintained for such purpose in Luxembourg on the principal amount of US
Dollars (US$__________) (the "Principal Amount") at a rate of _____% per annum
quarterly in arrears on January 15, April 15, July 15 and October 15 of each
year (each such date, an "Interest Payment Date"), from September ____, 1998
(the "Issue Date") until the Interest Payment Date immediately preceding the
Mandatory Redemption Date (as defined herein). The interest payable on each
Interest Payment Date shall be the interest accrued (i) in the case of the first
Interest Payment Date, from and including the Issue Date to but excluding such
first Interest Payment Date and (ii) in the case of each subsequent Interest
Payment Date, from and including the immediately preceding Interest Payment Date
to but excluding such subsequent Interest Payment Date. The amount of interest
payable on any Interest Payment Date shall be computed on the basis of a 360-day
year of twelve 30-day months. Notwithstanding anything herein to the contrary,
(a) other than in connection with an Exchange Event that is the redemption or
Buy-Back of the ANZ Preference Shares for cost, no interest shall accrue or be
payable for the period from and including the Interest Payment Date immediately
preceding the Mandatory Redemption Date or in respect of any Interest Payment
Date that occurs on the Mandatory Redemption Date, (b) in no event shall the
Holder have any right at law or equity to enforce payment of, or to take any
legal action or other proceeding to recover or collect, the interest payable on
any Interest Payment Date prior to the tenth Business Day after such Interest
Payment Date, (c) the payment and delivery to the Holder by the Company of the
Mandatory Redemption Amount or the Subject Jersey Preference Shares and Interest
Portion (if any) (each as defined below), as applicable, as provided herein
shall constitute full satisfaction of all of the Company's obligations under
this Security and (d) from and after such payment and delivery, the Holder shall
have no further claims of any kind against the Company in respect of this
Security, including any claim for interest previously due but not then paid.
All payments of cash hereunder shall be payable in any coin or
currency of the United States of America that at the time of payment is legal
tender for the payment of public and private debts. All payments of principal
and/or interest in respect of this Security shall be
<PAGE>
made subject to deduction of any United Kingdom tax required to be withheld at
source and the Company shall not be required to pay any additional amount in
respect of withholding; provided however, that the Company may at its sole
option pay such additional amount as additional interest hereon. Except as used
in relation to the term "Business Day," all references herein to times or dates
shall be to such times and dates in The City of New York.
If any Interest Payment Date is not a Business Day, then the interest
payable on such date need not be paid on such date but instead may be paid on
the next succeeding day that is a Business Day (without any interest or other
payment in respect of any such delay). A "Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday or Friday which is not a day on which banking
institutions in Sydney, Australia, New York, New York or any other city or
cities in which the principal place of business of any ANZ Borrower is located
from time to time (initially Wellington, New Zealand) are authorized or obliged
by law or executive order to close.
1. Mandatory Redemption. Upon, or, if the Exchange Event is the
--------------------
redemption or Buy-Back of the ANZ Preference Shares for cash, immediately prior
to, the occurrence of an Exchange Event, this Security shall be redeemed on the
Exchange Date (the "Mandatory Redemption Date"), automatically and without any
action on the part of the Company, the Holder or any other person, in whole and
not in part, at a redemption price equal to the Principal Amount of this
Security plus, if the Exchange Event is the redemption or Buy-Back of the ANZ
Preference Shares for cash, the accrued interest hereon at the interest rate set
forth above from and including the Interest Payment Date immediately preceding
the Mandatory Redemption Date to but excluding the Mandatory Redemption Date
(such interest being the "Interest Portion" and such redemption price being the
"Mandatory Redemption Amount"). If the Exchange Event is the redemption or Buy-
Back of the ANZ Preference Shares for cash and the Dollar Value on the Mandatory
Redemption Date is equal to or less than the Dollar Value on any date on which
ANZ Preference Shares are originally issued (a "Qualifying Exchange Event"), the
Company shall pay the Holder in immediately available funds the Mandatory
Redemption Amount against presentation and surrender of this Security to the
Company or an agent of the Company appointed by the Company for such purpose on
or after the Mandatory Redemption Date. In the case of any Exchange Event other
than a Qualifying Exchange Event, upon presentation and surrender of this
Security to the Company or an agent of the Company appointed by the Company for
such purpose on or after the Mandatory Redemption Date, the Company will pay the
Interest Portion, if any, in immediately available funds to the Holder, the
Mandatory Redemption Amount (exclusive of the Interest Portion, if any) will be
applied, automatically and without any action on the part of the Company, the
Holder or any other person, to purchase from the Company on behalf of the Holder
Jersey Preference Shares with an aggregate stated liquidation value equal to the
Principal Amount of this Security (the "Subject Jersey Preference Shares"), and
the Company will deliver the Subject Jersey Preference Shares to the Holder free
and clear of any liens or other encumbrances other than those created by the
Jersey Preference Shares Security and Pledge Agreement. The Holder, by its
purchase of this Security, acknowledges and irrevocably and unconditionally
waives any right it might have, in the case of any Exchange Event other than a
Qualifying Exchange Event, to receive such Mandatory Purchase Amount in cash
prior to such application pursuant to the preceding sentence and agrees that
delivery of the Subject Jersey Preference Shares pursuant to the preceding
sentence shall fully and unconditionally discharge the obligation of the Company
to pay the Mandatory Purchase Amount in cash or otherwise.
2
<PAGE>
On and after the Mandatory Redemption Date, (i) the Principal Amount of
this Security shall cease to be payable, (ii) the interest hereon shall cease to
accrue and be payable, and (iii) this Security shall thereafter represent only
the right to receive the Mandatory Redemption Amount or the Subject Jersey
Preference Shares and the Interest Portion (if any), as applicable.
In the event that the Mandatory Redemption Date occurs on a day that is not
a Business Day, then payment of the Mandatory Redemption Amount or the Subject
Jersey Preference Shares and the Interest Portion (if any), as applicable, may
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay).
2. Notice and Redemption Procedures. Notice of the redemption
--------------------------------
hereof and all other notices to the Holder will be valid if published in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxemburger Wort). Any such notice shall be deemed to have been given on
the date of such publication or, if published more than once or on different
dates, on the first date on which publication is made. The Holder will be deemed
for all purposes to have notice of the contents of any notice given to the
Holder in accordance with the terms hereof.
3. Ranking. The indebtedness evidenced by this Security shall be
-------
unsubordinated senior indebtedness of the Company.
4. Amendments and Waivers. Modifications and amendments of the
----------------------
terms of this Security may be made with the consent of the holders of not less
than a majority of the TrUEPrS; provided, however, that, no such modification or
amendment may, without the consent of 100% of the holders of the TrUEPrs,
modify, amend or otherwise affect the amount or timing of interest payments on
this Security or the Principal Amount, the amount, form or timing of the
consideration payable upon the redemption of this Security (including, without
limitation, the rights and obligations of the Holder to receive the Subject
Jersey Preference Shares) or otherwise adversely affect in any material respect
the rights of the holders of TrUEPrs or cause an Exchange Event to occur.
Modifications and amendments may be made without the consent of any holder of
the TrUEPrS to cure any ambiguity, defect or inconsistency in this Security;
provided that, such action will not adversely affect in any material respect the
rights of the holders of the TrUEPrS or cause an Exchange Event to occur. The
failure of the Holder at any time to exercise any right hereunder shall not
constitute a waiver of the Holder's right to exercise any right at any other
time.
5. Prescription. Claims to payment of principal and interest will
------------
become void unless presentation of this Security is made within a period of two
years from the date on which such payment first became due.
6. Undertakings of the Company. The Company hereby undertakes that,
---------------------------
for so long as any obligations of the Company remain under this Security, it
will not (i) sell or otherwise transfer the ordinary shares or nominal shares,
if any, of the Jersey Subsidiary owned by it to any person (other than pursuant
to, and in accordance with the terms of, the Jersey Ordinary Share Purchase
Agreement) or (ii) commence a proceeding for an order for the winding up of the
Jersey Subsidiary or for the appointment of a provisional liquidator,
liquidator, administrator, controller or similar official in respect of the
Jersey Subsidiary or all or substantially all of its property and it will (x)
3
<PAGE>
use its best efforts to prevent the issuance of any other order for the winding
up of the Jersey Subsidiary or for any other appointment of a provisional
liquidator, liquidator, administrator, controller or similar official in
respect of the Jersey Subsidiary or all or substantially all of its property
and (y) exercise its voting rights to ensure that:
(a) the Jersey Subsidiary will not change its Memorandum and Articles
of Association (unless such change has been consented to by the
record holders of more than 50% of the TrUEPrs or, in the opinion
of competent legal counsel selected by the Trust, such change
would not have a material adverse impact on the rights of the
holders of the TrUEPrS and, in either case, will not cause an
Exchange Event to occur);
(b) the Jersey Subsidiary will not change its business purpose
(as specified in its Memorandum and Articles of Association); and
(c) (i) the Jersey Subsidiary will not commence a proceeding for an
order for the winding up of the Jersey Subsidiary or for the
appointment of a provisional liquidator, liquidator,
administrator, controller or similar official in respect of the
Jersey Subsidiary or all or substantially all of its property, and
(ii) the Jersey Subsidiary will use its best efforts to prevent
the issuance of any other order for the winding up of the Jersey
Subsidiary or for any appointment of a provisional liquidator,
liquidator, administrator, controller or similar official in
respect of the Jersey Subsidiary or all or substantially all of
its property.
7. Miscellaneous. This Security and all obligations of the Company
-------------
hereunder together with the rights and remedies of the Holder hereunder, inure
to the benefit of the Holder and their successors and assigns.
This Security will not be subject to any sinking fund.
This Security shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without giving effect to the
conflicts of law provisions thereof.
No provision of this Security shall alter or impair the obligation of
the Company, which is absolute and unconditional, (i) to pay (A) the Mandatory
Redemption Amount and (B) any interest that is due and payable on this Security
and of which, prior to the Mandatory Redemption Date, the Holder has the right
to enforce payment, in either case at the time and place and at the rate and in
the currency herein prescribed or (ii) to pay the Interest Portion (if any)
payable, or to deliver the Subject Jersey Preference Shares, upon redemption of
this Security, as applicable.
Any undefined term in this Security shall have the meaning ascribed to
it in Schedule A attached hereto.
This Security is transferable by delivery. This Security may be
exchanged for like securities of similar tenor in denominations of US$1,000,000
and integral multiples of $100,000
4
<PAGE>
in excess thereof upon presentation to the Company or an agent of the Company
appointed by the Company for such purpose and payment of any governmental or
other charges due in connection with such exchange.
The Company shall treat the Holder as the legal and beneficial owner
of this Security for all purposes. Payments made by or on behalf of the Company
to the Holder in respect of the interest due and payable hereon, the principal
hereof and all other amounts due hereunder in accordance with the terms hereof
shall fully discharge the Company's obligations with respect thereto under this
Security.
The Company hereby further irrevocably agrees with the Holder that the
Company's obligations contained herein may be enforced against the Company by
judicial proceedings instituted in any state or federal court in the Borough of
Manhattan, The City of New York, New York. Subject only to the further
provisions of this Security, the Company hereby submits to the non-exclusive
jurisdiction of such courts for any such proceedings to the full extent
permitted by law solely in respect of the interpretation and enforcement of the
provisions hereof. For the purposes of this paragraph, the Company hereby
appoints CT Corporation System, as its agent to accept legal process in any
proceedings, which appointment shall be irrevocable, except that the Company may
revoke such appointment by simultaneously appointing another agent in the County
and State of New York pursuant to the same conditions, and will cause such new
agent to accept in writing such appointment and will deliver an executed copy of
such acceptance to the Holder.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
CARLOTTA (UK) COMPANY
By:
------------------------
Name:
Title:
Attest:
By:
---------------------------
Name:
Title:
6
<PAGE>
SCHEDULE A
-----------
"ADSs" means the American Depositary Shares each of which represents
four ANZ Preference Shares.
"ANZ" means Australia and New Zealand Banking Group Limited, a
corporation organized under the laws of the State of Victoria, Commonwealth of
Australia, or any surviving entity or subsequent surviving entity of ANZ.
"ANZ Borrower" means each direct or indirect wholly owned subsidiary
of ANZ and/or ANZ or a branch of ANZ, in each case to whom an ANZ Loan has been
made or assigned.
"ANZ Loan" means each outstanding loan made by the Distribution Trust
to an ANZ Borrower, each of which matures on or about October 15, 2052.
"ANZ Loan Agreement" means each agreement between the Distribution
Trust and an ANZ Borrower pursuant to which an ANZ Loan is made.
"ANZ Preference Shares" means the fully paid non-cumulative preference
shares, liquidation preference US$6.25 per share, issued by ANZ, 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.
"APRA" means the Australian Prudential Regulation Authority, or any
successor or replacement body to which ANZ is required to report the capital
adequacy ratios referred to in the definition of Exchange Event.
"Collateral Agent" means The Bank of New York or its successor as
permitted under the Jersey Preference Shares Security and Pledge Agreement or
appointed pursuant to Section 2.05(a) of the Trust Agreement.
"Debt Securities" means the Mandatorily Redeemable Debt Securities due
2047 issued by the Company.
"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 administrators thereof, the
Company and the ANZ Australian Affiliate named therein.
"Dollar Value" means 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 legal currency of the United Kingdom
(i.e., expressed as (Pounds)/US$1.00).
Sch. A-1
<PAGE>
"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 shall constitute an "Exchange Event" as of the "Exchange Date"
indicated below:
(i) October 15, 2047 or the date of any earlier redemption or mandatory
repurchase ("Buy-Back") of the ANZ Preference Shares for cash, in
which case the Exchange Date will be the earlier of such dates;
(ii) any date selected by ANZ in its absolute discretion, in which case the
Exchange Date will be such date;
(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 Tier 1 Capital Ratio or the Total Capital
Adequacy Ratio of ANZ (either as reported quarterly by ANZ to APRA or
as determined at any time by APRA in its absolute discretion) is below
4% or 8%, respectively, or, in each case, such lesser percentage as
may be prescribed by APRA for ANZ at the time (the applicable
percentage in each such case being the "Required Percentage"), and is
not increased by ANZ to at least the Required Percentage within 90
days after the date on which ANZ makes such quarterly report or
receives notice from APRA of such determination by APRA, as
applicable, 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 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 (as specified in the constituent
documents) of the Distribution Trust, in which case the Exchange Date
will be the date on which the change occurs;
(vii) the common securities of the Distribution Trust cease to be wholly-
owned, directly or indirectly, by ANZ or a direct or indirect
wholly-owned subsidiary or branch of ANZ, in which case the Exchange
Date will be the date on which the
Sch. A-2
<PAGE>
common securities of the Distribution Trust cease to be wholly-owned,
direct or indirect, by ANZ or a direct or indirect wholly-owned
subsidiary or branch of ANZ;
(viii) the ANZ Borrower ceases to be ANZ or a directly or indirectly
wholly-owned subsidiary or branch of ANZ, in which case the Exchange
Date will be the date on which the ANZ Borrower ceases to be ANZ or a
direct or indirect wholly-owned subsidiary or branch of ANZ;
(ix) (A) a proceeding is commenced by ANZ, the Company, the Jersey Holding
Company, the Jersey Charitable Trust, the Jersey Subsidiary, the
Distribution Trust or the ANZ Borrower (each, a "Relevant Entity") or
a person that controls the Relevant Entity for an order that the
Relevant Entity be wound up 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 the 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 hereof 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
(x) 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 ANZ 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 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, the ANZ Borrower may, with the consent
of the Distribution Trust, assign the ANZ Loan or the Distribution Trust may
replace the ANZ Loan with another loan, in each case, to the Company or to
another direct or indirect wholly-owned subsidiary or branch office of the
Company with prospective payment terms identical to, and other terms
substantially the same as, those of the ANZ Loan, in which case the Company or
Sch. A-3
<PAGE>
such other subsidiary or branch office and loan will be deemed to be the ANZ
Borrower and the ANZ Loan, respectively, and any such action will not constitute
an Exchange Event.
"Jersey Charitable Trust" means The Carlotta 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 Carlotta (Holdings) Limited, an exempt
company established under the laws of, and domiciled in, Jersey, the Channel
Islands, which holds all of the Company's ordinary shares.
"Jersey Preference Shares" means the fully paid, non-dividend paying
preference shares, liquidation preference US$25 per share, issued by the Jersey
Subsidiary.
"Jersey Preference Shares Security and Pledge Agreement" means the
Jersey Preference Shares Security and Pledge Agreement dated as of the first
Issue Date among the Trust, the Company and the Collateral Agent, securing the
obligations of the Company under the Debt Securities, each as amended pursuant
to the terms thereof.
"Jersey Subsidiary" means Carlotta (Investments) Limited, a company
incorporated with limited liability under the laws of, and domiciled in, Jersey,
the Channel Islands.
"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) of the Trust Agreement.
"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) of the Trust
Agreement.
"Security and Pledge Agreements" means, collectively, the ADRs
Security and Pledge Agreement dated as of the first Issue Date among the Trust,
the Company, the Jersey Subsidiary and the Collateral Agent, securing the
respective obligations of the Company under this agreement and the Jersey
Subsidiary under the Jersey Preference Shares, and the Jersey Preference Shares
Security and Pledge Agreement dated as of the first Issue Date among the Trust,
the Company and the Collateral Agent, securing the obligations of the Company
under this Agreement, each as amended pursuant to the terms thereof.
"Tier 1 capital" means capital which is regarded as "tier 1 capital"
for the purposes of the capital adequacy guidelines of APRA.
"Tier 1 Capital Ratio" means the ratio of Tier 1 capital to risk
weighted assets (on a consolidated group basis) prescribed by APRA in its
capital adequacy guidelines for Australian banks, as modified from time to time.
Sch. A-4
<PAGE>
"Total Capital Adequacy Ratio" means the total capital adequacy ratio
as prescribed by APRA 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.
"Trust" means ANZ Exchangeable Preferred Trust, a business trust
created under the law of the State of Delaware and governed by the Trust
Agreement.
"Trust Agreement" means a Second Amended and Restated Trust Agreement,
dated as of September __, 1998, by and among ML IBK Positions, Inc., as
sponsor, the Trustees named therein, and the Holders from time to time,
constituting the Trust.
Sch. A-5
<PAGE>
Exhibit 99(k)(4)
______________________________________________________________________________
______________________________________________________________________________
ANZ EXCHANGEABLE PREFERRED TRUST
ADRs SECURITY AND PLEDGE AGREEMENT
----------------------------------
Dated: September __, 1998
______________________________________________________________________________
______________________________________________________________________________
<PAGE>
Table of Contents
Page
----
1. Definitions 3
(a) Defined Terms 3
(b) Uniform Commercial Code. 5
(c) Terms Defined in the Trust Agreement. 5
2. Delivery by the Pledgor to Collateral Agent 5
(a) Initial Delivery of Collateral 5
(b) Collateral Requirement 6
3. Grant of Security Interest 6
4. Maintenance of Collateral. 8
5. Voting and Distributions in Respect of Collateral 8
6. Remedies Upon Events of Default 9
(a) Delivery Upon Event of Default 9
(b) Power of Attorney. 9
(c) Waivers by the Pledgors. 9
(d) Rights and Remedies Under the Uniform Commercial Code. 9
7. Other Provisions Regarding the Collateral 9
(a) No Disposition. 10
(b) Further Protections. 10
(c) Delay in Enforcement; No Waiver. 10
8. Representations and Warranties 10
(a) Representations and Warranties of Pledgor. 10
(b) Representations and Warranties of Collateral Agent. 11
9. The Collateral Agent 12
(a) Appointment of Collateral Agent. 12
(b) Duties of Collateral Agent. 12
(c) Compensation 12
(d) Reliance 12
(e) Liability of Collateral Agent 12
(f) Risk of Funds 12
(g) Use of Sub-Agents or Attorneys 13
(h) Recitals and Statements 13
(i) Knowledge 13
(j) Merger 13
(k) Resignation of Collateral Agent 13
(l) Removal 14
(m) Appointment of Successor 14
(n) Acceptance by Successor. 14
10. Miscellaneous 14
(a) Amendments, Etc. 14
(b) Notices and Other Communications. 15
(c) Waivers. 16
(d) Non-Assignment. 16
i
<PAGE>
(e) Waiver of Jury Trial. 16
(f) Governing Law. 16
(g) Headings. 16
(h) Entire Agreement. 16
(i) Counterparts. 17
(j) Force Majeure. 17
(k) Binding Effect. 17
(l) Separability. 17
11. Termination of Agreement 17
12. Application of Bankruptcy Code 17
13. No Personal Liability of Trustees. 17
14. Limitation on Liability 17
15. Consent to Jurisdiction 18
16. Judgement Currency 18
17. Waiver of Immunities 18
Exhibit A FORM OF CONTROL AGREEMENT
Exhibit B FORM OF PLEDGE
ii
<PAGE>
ADRs SECURITY AND PLEDGE AGREEMENT
This Security and Pledge Agreement (the "Agreement") is made as of
September __, 1998 among ANZ Exchangeable Preferred Trust, a business trust
created pursuant to the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. (Sections 3801 et seq.)) (such trust
and the trustees thereof acting in their capacity as such being referred to
herein as the "Trust"), Carlotta (UK) Company, a special purpose company with
unlimited liability incorporated under the laws of England and Wales (the "U.K.
Company"), Carlotta (Investments) Limited, a company incorporated with limited
liability under the laws of, and domiciled in, Jersey, the Channel Islands (the
"Jersey Subsidiary") (the U.K. Company and the Jersey Subsidiary being sometimes
individually referred to herein as a "Pledgor" and collectively as the
"Pledgors"), and The Bank of New York, a New York banking corporation, as agent
and custodian for and on behalf of the U.K. Company and the Trust, as applicable
(the "Collateral Agent").
WHEREAS, the Trust has filed with the Securities and Exchange Commission a
registration statement on Form N-2 (File Nos. 333-58751 and 811-08865) and Pre-
Effective Amendments No. 1, 2 and 3 thereto contemplating the offering (the
"Offering") of up to of its Trust Units Exchangeable for Preference
Shares(SM) (the "TrUEPrS(SM)"), the terms of which contemplate that the Trust
will distribute to the Holders (as defined in the Trust Agreement described
below) of TrUEPrS, upon the occurrence of an Exchange Event (as defined in the
Trust Agreement), either (i) American Depositary Receipts ("ADRs" evidencing,
for each TrUEPrS, one American Depositary Share ("ADS") representing four fully
paid non-cumulative preference shares, liquidation preference US$6.25 per share
(the "ANZ Preference Shares"), issued by Australia and New Zealand Banking Group
Limited ("ANZ"), or (ii) if the Exchange Event is the redemption or mandatory
repurchase of the ANZ Preference Shares for cash, Holders of TrUEPrS will be
entitled to receive US$25 per TrUEPrS plus the accrued dividend distribution
thereon for the current quarterly dividend period and not ADRs.
WHEREAS, concurrently with the execution and delivery of this Agreement,
the TrUEPrS are being issued pursuant to the Second Amended and Restated Trust
Agreement, dated as of September __, 1998 (the "Trust Agreement"), among the
trustees of the Trust, ML IBK Positions, Inc., as Sponsor, and the Holders of
the TrUEPrS.
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Trust is using the proceeds of the Offering to purchase the __% Mandatory
Redeemable Debt Securities due 2047 (the "Debt Securities") issued by the U.K.
Company with an aggregate principal amount equal to such proceeds.
WHEREAS, concurrently with the execution and delivery of this Agreement,
the U.K. Company is using the proceeds from the sale of the Debt Securities to
purchase at a price equal to their liquidation preference up to fully
paid non-dividend paying preference
- ------------------------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
1
<PAGE>
shares, liquidation preference US$25 per share (the "Jersey Preference Shares"),
issued by the Jersey Subsidiary.
WHEREAS, concurrently with the execution of this Agreement, the Jersey
Subsidiary is using the proceeds from the sale of the Jersey Preference Shares
to make a payment in consideration of the issuance by the Depositary (as defined
herein) of ADRs evidencing up to ADSs each representing four ANZ
Preference Shares deposited by ANZ.
WHEREAS, the Jersey Subsidiary desires to grant a security interest in the
ADRs evidencing the ADSs for the benefit of the U.K. Company, as security for
the redemption obligations of the Jersey Subsidiary under the Jersey Preference
Shares.
WHEREAS, the Jersey Subsidiary desires to grant a security interest in the
ADRs evidencing the ADSs for the benefit of the Trust, as security for the
Jersey Subsidiary's obligations under the ADSs Purchase Contract, such security
interest being subject to the prior Lien granted by the Jersey Subsidiary to the
U.K. Company and hypothecated by the U.K. Company to the Trust hereunder.
WHEREAS, concurrently with the execution of this Agreement, the Jersey
Subsidiary will Deliver, with the consent of the U.K. Company, the ADRs
evidencing the ADSs representing the ANZ Preference Shares to The Bank of New
York, acting in its capacity as securities intermediary (the "Securities
Intermediary"), which, pursuant to the terms of a control agreement, dated
September __, 1998, among the U.K. Company, the Jersey Subsidiary, the Trust,
the Collateral Agent and the Securities Intermediary, the form of which is
attached hereto as Exhibit A, has agreed to credit the Collateral (as defined
herein) Delivered hereby to the Account (as defined herein) (the "Control
Agreement"), as security for the redemption obligations of the Jersey Subsidiary
under the Jersey Preference Shares and the obligations of the Jersey Subsidiary
under the ADSs Purchase Contract.
WHEREAS, the ANZ Preference Shares represented by the ADSs have been
deposited with and held by The Bank of New York, as depositary (the
"Depositary"), pursuant to a Deposit Agreement, dated as of September __, 1998,
between ANZ and the Depositary.
WHEREAS, the Jersey Subsidiary desires to consent to the assignment by the
U.K. Company of the security interest created hereunder to the Trust, as
pledgee, transferee and assignee thereof, as security for the redemption
obligations of the U.K. Company under the Debt Securities.
WHEREAS, the U.K. Company desires to consent to the grant by the Jersey
Subsidiary of the security interest in the ADRs in favor of the Trust created
hereunder to secure the obligations of the Jersey Subsidiary under the ADSs
Purchase Contract, such security interest being subject to the prior Lien
granted by the Jersey Subsidiary to the U.K. Company and hypothecated by the
U.K. Company to the Trust hereunder.
WHEREAS, pursuant to the Jersey Preference Shares Security and Pledge
Agreement (the "Jersey Preference Shares Agreement"), among the Trust, the U.K.
Company and the Collateral Agent, the U.K. Company has granted a security
interest in the Jersey Preference
2
<PAGE>
Shares and any redemption proceeds thereof for the benefit of the Trust, as
pledgee thereof, as security for the redemption obligations of the U.K. Company
under the Debt Securities.
WHEREAS, the Trust and the Pledgors desire that, upon the occurrence of an
Exchange Event, the ADRs or any cash redemption proceeds thereof will be
delivered to the Trust for distribution to the Holders of TrUEPrS.
WHEREAS, the Trust and the Pledgors desire that prior to the occurrence of
an Exchange Event, beneficial ownership of the Jersey Preference Shares and the
ADRs pledged hereunder remain in the U.K. Company and the Jersey Subsidiary,
respectively, unless and until as a result of the occurrence of an Exchange
Event, the ADRs or the cash redemption proceeds thereof are delivered to the
Trust; provided, however, that the Jersey Subsidiary or the Collateral Agent
shall vote the ADSs and direct the Depositary to vote the ANZ Preference Shares
represented thereby as directed by the Holders of the TrUEPrS in accordance with
the procedures set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions.
(a) Defined Terms. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following
terms, when used herein, shall have the following meanings:
"Account" means the separate, non-commingled securities account established
by the Collateral Agent with the Securities Intermediary.
"ADRs" has the meaning specified in the first recital in this Agreement.
"ADSs" has the meaning specified in the first recital in this Agreement.
"ADSs Purchase Contract" means the ADSs Purchase Contract, dated September
__, 1998, between the Trust and the Jersey Subsidiary, as amended pursuant to
the terms thereof.
"ANZ" has the meaning specified in the first recital in this Agreement.
"ANZ Preference Shares" has the meaning specified in the first recital in
this Agreement.
"Agreement" means this ADRs Security and Pledge Agreement and any schedules
and exhibits hereto.
"Collateral" means all the ADRs Delivered hereunder and any proceeds from
the redemption thereof.
3
<PAGE>
"Collateral Agent" means the financial institution identified as such in
the introductory paragraph hereof, or any successor appointed in accordance with
Section 9(l).
"Collateral Amount" means, as of the date of determination, the amount of
Collateral then held by the Securities Intermediary.
"Control Agreement" has the meaning specified in the eighth recital in this
Agreement.
"Debt Securities" has the meaning specified in the third recital in this
Agreement.
"Delivery" means with respect to the ADRs, the delivery of such ADRs, free
and clear of all Liens (other than a Lien created or permitted by this Agreement
or any Lien created by the Trust), to the Security Intermediary at such location
in The City of New York as it shall direct, registered in the name of the
Collateral Agent or its nominee or in suitable form for delivery and transfer,
accompanied by duly executed instruments of transfer or assignment in blank and
accompanied by any required transfer tax stamps. The term "Deliver" used as a
verb has a corresponding meaning.
"Depositary" has the meaning specified in the ninth recital in this
Agreement.
"Event of Default" means the occurrence of an Exchange Event.
"Jersey Preference Shares" has the meaning specified in the fourth recital
in this Agreement.
"Jersey Preference Shares Agreement" has the meaning specified in the
twelfth recital in this Agreement.
"Jersey Subsidiary" has the meaning specified in the introductory paragraph
of this Agreement.
"Lien" means any lien, mortgage, security interest, pledge, charge,
encumbrance, claim or equity of any kind.
"Offering" has the meaning specified in the first recital in this
Agreement.
"Pledgor" or "Pledgors" has the meaning specified in the introductory
paragraph of this Agreement.
"Required Collateral Amount" means the Collateral required to be pledged
hereunder in order to secure the prompt and complete payment of the redemption
proceeds of the Jersey Preference Shares in accordance with the terms thereof;
the Required Collateral Amount shall at all times equal the aggregate
liquidation amount in US dollars of the Jersey Preference Shares owned by the
U.K. Company.
4
<PAGE>
"Responsible Officer" means, when used with respect to the Collateral
Agent, any vice president, assistant vice president, trust officer, assistant
treasurer or assistant secretary located in the division or department of the
Collateral Agent responsible for performing the obligations of the Collateral
Agent under this Agreement, or in any other division or department of the
Collateral Agent performing operations substantially equivalent to those
performed by such division or department pursuant hereto, or any other officer
of the Collateral Agent or any successor Collateral Agent customarily performing
functions similar to those performed by any of the aforesaid officers, and also
means, with respect to any matter relating to this Agreement or the Collateral,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities Intermediary" means the financial institution identified as
such in the eighth recital hereof, or any successor thereto.
"Transfer Restriction" means, with respect to any item of Collateral, any
condition to or restriction on the ability of the holder thereof to sell, assign
or otherwise transfer such item of Collateral or to enforce the provisions
thereof or of any document related thereto whether set forth in such item of
Collateral itself or in any document related thereto, including, without
limitation, (i) any requirement that any sale, assignment or other transfer or
enforcement of such item of Collateral be consented to or approved by any
Person, including, without limitation, the issuer thereof or any other obligor
thereon, (ii) any limitations on the type or status, financial or otherwise, of
any purchaser, pledgee, assignee or transferee of such item of Collateral, (iii)
any requirement of the delivery of any certificate, consent, agreement, opinion
of counsel, notice or any other document of any Person to the issuer of, any
other obligor on or any registrar or transfer agent for, such item of
Collateral, prior to the sale, pledge, assignment or other transfer or
enforcement of such item of Collateral and (iv) any registration or
qualification requirement for such item of Collateral pursuant to any federal,
state or foreign securities law; provided that (x) the required delivery of any
assignment from the seller, pledgor, assignor or transferor of such item of
Collateral, together with any evidence of the corporate or other authority of
such Person, or (y) any registration or qualification requirement for such item
of Collateral pursuant to any federal, state or foreign securities law which is
generally applicable to all holders of such item of Collateral, shall not
constitute a "Transfer Restriction."
"TrUEPrS" has the meaning specified in the first recital in this
Agreement.
"Trust" has the meaning specified in the introductory paragraph of this
Agreement.
"Trust Agreement" has the meaning specified in the second recital in this
Agreement.
"Trustee" or "Trustees" means any trustee or trustees of the Trust
identified on the signature pages to the Trust Agreement, or any successor as
such trustee or trustees.
"U.K. Company" has the meaning specified in the introductory paragraph of
this Agreement.
5
<PAGE>
"Uniform Commercial Code" means, at any time, the Uniform Commercial Code
in effect at such time in the State of New York or deemed to be in effect
pursuant to U.S. law and regulations applicable thereto.
(b) Uniform Commercial Code. Unless otherwise defined herein, all terms
defined in Article 8 or Article 9 of the Uniform Commercial Code are used herein
as therein defined.
(c) Terms Defined in the Trust Agreement. Capitalized words and phrases
used herein and not otherwise defined herein are used herein as defined in the
Trust Agreement.
2. Delivery by the Jersey Subsidiary to Collateral Agent.
(a) Initial Delivery of Collateral.
------------------------------
The Jersey Subsidiary shall Deliver ADRs representing the Required
Collateral Amount as of the date hereof to the Securities Intermediary as
follows:
(i) in the case of each certificated security (other than a clearing
corporation security) or instrument, by:
(A) the delivery of such certificated security or instrument to the
Securities Intermediary registered in the name of the Securities
Intermediary or its affiliated nominee or endorsed to the
Securities Intermediary in blank;
(B) causing the Securities Intermediary to continuously indicate by
book-entry that such certificated security or instrument is
credited to the Account; and
(C) the Securities Intermediary maintaining continuous possession of
such certificated security or instrument in the State of New
York; and
(ii) in the case of each clearing corporation security, by causing:
(A) such clearing corporation security to be continuously registered
to the clearing corporation or its custodian or the nominee of
either subject to the exclusive control of such clearing
corporation (in the case of a clearing corporation security that
is an uncertificated security) or continuously maintained in the
State of New York in the possession of, and registered in the
name of, such clearing corporation or its custodian or the
nominee of either subject to the exclusive control of such
clearing corporation (in the case of a clearing corporation
security that is a certificated security);
(B) the relevant clearing corporation to continuously indicate by
book-entry that such clearing corporation security is credited to
the securities account maintained by it for the benefit of the
Securities Intermediary; and
(C) the Securities Intermediary to continuously indicate by book-
entry that such clearing corporation security is credited to the
Account.
6
<PAGE>
(b) Collateral Requirement. If at any time subsequent to the date hereof,
----------------------
the Collateral Amount is less than the Required Collateral Amount, the Jersey
Subsidiary shall Deliver, or cause to be Delivered, to the Securities
Intermediary, in accordance with Section 2(a), one or more certificates
representing ADRs such that the Collateral Amount will at all times equal the
Required Collateral Amount. The Securities Intermediary shall hold such
additional ADRs as from time to time may be Delivered or caused to be Delivered,
to the Securities Intermediary as Collateral as expressly provided herein in
order to perfect the continuing first priority security interest in such
Collateral granted to the Collateral Agent, as agent of and for the benefit of
the U.K. Company.
3. Grant of Security Interest.
--------------------------
(a) (i) As security for the prompt and complete payment and delivery of
the redemption proceeds of the Jersey Preference Shares when due in accordance
with the terms thereof, the Jersey Subsidiary hereby pledges, assigns, grants
and conveys unto the Collateral Agent, as agent of and for the benefit of the
U.K. Company, a continuing first priority security interest under the Uniform
Commercial Code or other applicable law in and to, and a general first lien upon
and right of set off against, and a first fixed charge of, the Jersey
Subsidiary's right, title and interest in and to, the ADRs evidencing the ADSs
which are Delivered hereunder as security pursuant to and in accordance with the
provisions of this Agreement, all certificates or instruments representing or
evidencing any or all of the foregoing, and all distributions or dividends and
proceeds from time to time received, receivable or otherwise distributed in
respect of, or in exchange for, any or all of the foregoing (whether such
proceeds arise before or after the commencement of any proceeding under any
applicable bankruptcy, insolvency or other similar law, by or against the Jersey
Subsidiary) and, subject to Section 5 hereof, all powers and rights of the
Jersey Subsidiary now or hereafter acquired by the Jersey Subsidiary, including
rights of enforcement, under or with respect to any or all of the foregoing.
(ii) As security for the prompt and complete delivery of the ADRs
evidencing the ADSs when due in accordance with the terms of the ADSs
Purchase Contract, the Jersey Subsidiary hereby pledges, assigns, grants
and conveys unto the Collateral Agent, as agent of and for the benefit of
the Trust, a continuing security interest under the Uniform Commercial Code
or other applicable law in and to, and a general lien upon and right of set
off against, and a fixed charge of, the Jersey Subsidiary's right, title
and interest in and to, the ADRs evidencing the ADSs which are Delivered
hereunder as security pursuant to and in accordance with the provisions of
this Agreement, all certificates or instruments representing or evidencing
any or all of the foregoing, and all distributions or dividends and
proceeds from time to time received, receivable or otherwise distributed in
respect of, or in exchange for, any or all of the foregoing (whether such
proceeds arise before or after the commencement of any proceeding under any
applicable bankruptcy, insolvency or other similar law, by or against the
Jersey Subsidiary) and, subject to Section 5 hereof, all powers and rights
of the Jersey Subsidiary now or hereafter acquired by the Jersey
Subsidiary, including rights of enforcement, under or with respect to any
or all of the foregoing. The security interest granted in favor of the
Trust pursuant to this clause shall be subject only to the prior Lien
granted to the U.K. Company by the Jersey Subsidiary under Section 3(a)(i)
hereof and hypothecated by the U.K. Company to the Trust under Section 3(b)
hereof.
7
<PAGE>
(b) As security for the prompt and complete payment and delivery of the
redemption proceeds of the Debt Securities when due in accordance with the terms
thereof, the U.K. Company hereby pledges, transfers and assigns unto the
Collateral Agent, in its role as agent of and for the benefit of the Trust, the
security interest created, and all Collateral pledged, hereunder.
(c) (i) The Jersey Subsidiary hereby consents to the pledge, transfer and
assignment by the U.K. Company to the Collateral Agent, as agent of and for the
benefit of the Trust, of the security interest created, and all Collateral
pledged, hereunder as described in paragraph (b) above.
(ii) The U.K. Company hereby consents to the pledge, transfer and
assignment by the Jersey Subsidiary to the Collateral Agent, as agent of
and for the benefit of the Trust, of the security interest created, and all
Collateral pledged, hereunder as described in paragraph (a)(ii) above.
(d) (i) Each Pledgor shall, at its expense and in such manner and form as
the Trust or the Collateral Agent may reasonably require, give, execute,
deliver, file and record any financing statement, notice, instrument, document,
agreement or other papers, and shall take all other action, that may be
necessary or desirable in order to create, preserve, perfect, substantiate or
validate any security interest in the Collateral granted by such Pledgor
pursuant hereto or to enable the Collateral Agent to exercise and enforce its
rights and the rights of the U.K. Company and the Trust, as applicable,
hereunder with respect to such security interest.
(ii) The U.K. Company hereby undertakes to complete and file with the
Companies Office Registry of the United Kingdom registration forms
(standard form 395) and original executed counterpart signature pages of
this Agreement, registering the security interests created hereunder, as
soon as possible after execution of this Agreement, but no later than 10
Business Days subsequent to the date hereof, all in a form deemed
acceptable to the Collateral Agent.
(iii) The Pledgors each will promptly execute and deliver to the
Collateral Agent financing statements conforming to the Uniform Commercial
Code in effect in the states of New York and Delaware and any jurisdictions
deemed appropriate by the Collateral Agent, and such other documents as may
be necessary or desirable in order to perfect the security interests
granted hereby, all in a form the Collateral Agent reasonably deems to be
acceptable.
(iv) Contemporaneously with the execution of this Agreement, the Jersey
Subsidiary agrees to deliver to ANZ a notice substantially in the form
attached hereto as Exhibit A and to obtain the acknowledgement of such
notice by ANZ.
(v) Upon the request of the Collateral Agent, the Pledgors also agree to
execute and deliver to the Collateral Agent for filing by the Collateral
Agent continuation statements conforming to the Uniform Commercial Code in
effect in any state or jurisdiction deemed appropriate by the Collateral
Agent and in a form the Collateral Agent reasonably deems to be acceptable.
If either Pledgor fails to deliver to the Collateral
8
<PAGE>
Agent financing statements or continuation statements that the Collateral
Agent requests, the Collateral Agent may, to the extent permitted by law
and without limiting its other rights under this Agreement, execute and
file in such Pledgor's name, as such Pledgor's attorney-in-fact, such
documents and such Pledgor does hereby designate the Collateral Agent as
its attorney-in-fact to execute and file any such financing statement or
continuation statement.
4. Maintenance of Collateral.
-------------------------
(a) The Collateral shall be maintained in accordance with the Control
Agreement.
(b) Each Pledgor shall not be entitled to receive for its own account any
dividends, distributions and other payments relating to the Collateral;
provided, however, that the foregoing shall in no event apply to any Income
Entitlement. The Collateral Agent shall retain such payments (and any such
payments which are received by a Pledgor shall be received in trust for the
benefit of the Trust, shall be segregated from other funds of the Pledgor and
shall forthwith be paid over to the Collateral Agent), and the Collateral Agent
shall hold all such payments so retained by, or paid over to, the Collateral
Agent as Collateral hereunder and maintain such Collateral in accordance with
this Section.
5. Voting and Distributions in Respect of Collateral.
-------------------------------------------------
(a) The Jersey Subsidiary shall, or shall cause the Collateral Agent to,
vote the ADSs or direct the Depositary to vote the ANZ Preference Shares, in
each case, as directed by the Holders of the TrUEPrS in accordance with the
procedures set forth herein and the Deposit Agreement.
(b) Each TrUEPrS will entitle the Holder thereof to direct the exercise of
the voting rights attaching to one ADS and the four ANZ Preference Shares
represented thereby.
(c) Upon receipt of notice of any meeting at which Holders of ADSs or ANZ
Preference Shares are entitled to vote, (x) the Jersey Subsidiary shall as soon
as practicable thereafter, notify the Collateral Agent, (y) the Collateral Agent
shall, as soon as practicable thereafter, notify the Trustees of the Trust and
(z) the Trustees of the Trust shall, as soon as practicable thereafter, notify
the Holders of TrUEPrS, which notification, in each case shall be transmitted by
all reasonable means, a notice which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement whether the Holders of
TrUEPrS at the close of business on a specified record date will be entitled, in
accordance with any applicable provisions of Australian law and of the
Constitution of ANZ, resolutions of the Board of Directors of ANZ, the Deposit
Agreement and the Trust Agreement, to instruct the Trustees of the Trust, who
will in turn instruct the Jersey Subsidiary as to the exercise of the voting
rights, if any, pertaining to the ADSs and instruct the Depositary to the
exercise of the voting rights, if any, pertaining to the ANZ Preference Shares,
and (iii) a statement as to the manner in which such instructions may be given,
including an express indication that instructions may be given on behalf of such
Holders by the Trustees of the Trust to the Jersey Subsidiary. Upon the written
request of a Holder of TrUEPrS on such record date, received on or before the
date established by the Collateral Agent for such purpose, the Collateral Agent
and the Jersey Subsidiary shall endeavor insofar as practicable to vote or cause
to be voted each ADS and to direct the
9
<PAGE>
Depositary to vote the ANZ Preference Shares represented thereby in accordance
with any non-discretionary instructions set forth in such request. The
Collateral Agent and the Jersey Subsidiary shall not vote or attempt to exercise
the right to vote the ADSs or to direct the Depositary to vote or attempt to
exercise any vote that attaches to the ANZ Preference Shares other than in
accordance with the Holders' instructions. Neither ANZ nor the Jersey Subsidiary
shall be under any obligation to verify instructions received from Holders and
voted upon by the Collateral Agent.
The parties hereto agree, in the manner and form as ANZ, the Jersey
Subsidiary or the Collateral Agent may reasonably require, to give, execute and
deliver any proxy or such other document necessary to give effect to any voting
arrangements set forth in this Section.
6. Remedies Upon Events of Default.
-------------------------------
(a) Delivery Upon Event of Default. If an Event of Default shall have
------------------------------
occurred and be continuing, the Collateral Agent shall deliver or cause the
delivery of, the Collateral to the Trust as soon as practicable thereafter,
whereupon the Trust shall hold such Collateral, with all such rights afforded to
the Collateral Agent hereunder, and any rights it may have as to the holder of
the Debt Securities, free and clear of all Liens (other than Liens created by
the Trust) and Transfer Restrictions (other than Transfer Restrictions created
by the Trust), including any equity or right of redemption of the Pledgors which
may be waived, and the Pledgors, to the extent permitted by law, hereby
specifically waive all rights of redemption, stay or appraisal which each has or
may have under any law now existing or hereafter adopted.
(b) Power of Attorney. Upon any delivery of all or any part of any
-----------------
Collateral duly made under the power of delivery given hereunder or under
judgment or decree in any judicial proceedings for foreclosure or otherwise for
the enforcement of this Agreement, the Collateral Agent is hereby irrevocably
appointed the true and lawful attorney of the Pledgors in the name and stead of
each Pledgor, to make all necessary deeds, bills of sale and instruments of
assignment, transfer or conveyance of the property thus delivered. For that
purpose the Collateral Agent may execute all such documents and instruments.
This power of attorney shall be deemed coupled with an interest, and the
Pledgors hereby ratify and confirm all that attorneys acting under such power,
or such attorneys' successors or agents, shall lawfully do by virtue of this
Agreement. If so requested by the Collateral Agent or by the Trustees, the
Pledgors shall further ratify and confirm any such delivery by executing and
delivering to the Collateral Agent or to the Trustees at the expense of such
party all proper deeds, instruments of assignment, conveyance of transfer and
releases as may be designated in any such request.
(c) Waivers by the Pledgors. The Pledgors waive any presentment, demand,
-----------------------
protest or, to the extent permitted by applicable law, notice in connection with
this Agreement.
(d) Rights and Remedies Under the Uniform Commercial Code. In the event
-----------------------------------------------------
that the prompt and complete payment and delivery of the redemption proceeds of
the Jersey Preference Shares in accordance with the terms thereof are not paid
or delivered when due, in addition to all other rights and remedies provided for
herein or otherwise available to the Collateral Agent and the U.K. Company and
the Trust, the Collateral Agent may, and at the direction of the Trust shall,
exercise all of the rights and remedies of a secured party under the Uniform
Commercial Code (whether or not the Uniform Commercial
10
<PAGE>
Code applies to the Collateral) and all other applicable law with respect to all
or any part of the Collateral.
7. Other Provisions Regarding the Collateral.
-----------------------------------------
Until all obligations of the Jersey Subsidiary under the Jersey Preference
Shares and the ADSs Purchase Contract have been performed in full, the parties
hereto covenant and agree as follows:
(a) No Disposition. Each Pledgor covenants and agrees that it will not
--------------
sell, assign, transfer, exchange or otherwise dispose of, or grant any option
with respect to, any of the Collateral, nor will it create, incur or permit to
exist any Lien or Transfer Restrictions on or with respect to any of the
Collateral, any interest therein, or any proceeds thereof, other than those
permitted by this Agreement and Liens created by the Trust.
(b) Further Protections. Each Pledgor will pay in a timely fashion all
-------------------
taxes, assessments, fees or charges of any nature that are imposed in respect of
the Collateral as a result of such party's ownership thereof or any action or
omission on the part of such Pledgor. The Pledgors will give written notice to
the Trust and the Collateral Agent of, and defend the Collateral against, any
suit, action or proceeding against the Collateral which could adversely affect
the security interests granted hereunder.
(c) Delay in Enforcement; No Waiver. To the extent consistent with the
-------------------------------
Uniform Commercial Code and any applicable law, the Collateral Agent can choose
to delay or not to enforce any of its rights under this Agreement without losing
such rights. If the Collateral Agent chooses not to exercise or enforce any of
its rights, each Pledgor agrees that the Collateral Agent is not waiving the
right to enforce such rights at a later time or any of its other rights. Any
waiver of the Collateral Agent's rights under this Agreement must be in writing.
8. Representations and Warranties.
------------------------------
(a) Representations and Warranties of Pledgor. On a continuing basis
during the term of this Agreement, each Pledgor represents and warrants to the
Collateral Agent and to the Trust as follows:
(i) such Pledgor has full power and authority to execute and deliver this
Agreement and to perform and observe the provisions hereof, except as
performance may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights, and general principles of equity (regardless of whether
the enforceability of such performance is considered in a proceeding in
equity or at law);
(ii) the execution, delivery and performance of this Agreement by such
Pledgor does not contravene any requirement of law or any material
transactional restriction or material agreement binding on or affecting
such Pledgor or any of its assets;
(iii) this Agreement has been duly and properly executed and delivered by
such Pledgor and constitutes a legal, valid and binding agreement of such
Pledgor enforceable
11
<PAGE>
against such Pledgor in accordance with its terms, except as the
enforcement of rights and remedies may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights, and general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) no Transfer Restrictions (other than the requirement of the U.K.
Company to cause the security interest hypothecated hereunder to be
registered with the Companies Office Registry in the United Kingdom and any
Transfer Restrictions created by this Agreement and Transfer Restrictions
created by the Trust) exist with respect to or otherwise apply to the
assignment of, or transfer by such Pledgor of possession of, any items of
Collateral to the Collateral Agent hereunder, or the subsequent sale or
transfer of such items of Collateral by the Collateral Agent pursuant to
the terms hereof;
(v) except for the rights of the Trust and of the Collateral Agent on
the Trust's behalf established under this Agreement such Pledgor has all
rights, title and interest in and to the Collateral pledged by it under
this Agreement, and, in the case of the U.K. Company, the security interest
created hereby, in each case, free and clear of all Liens (other than the
Lien created by this Agreement) and Transfer Restrictions (other than
Transfer Restrictions created by this Agreement or the Trust), and has the
right to pledge such Collateral as provided in this Agreement;
(vi) such Pledgor is not in default under any agreement by which the
Collateral may be bound and no litigation, arbitration or administrative
proceeding of which such Pledgor has received notice or service of process
is pending, which default, litigation, arbitration or administrative
proceeding is material to the Collateral in the context of this Agreement;
(vii) upon (x) the execution of this Agreement and (y) Delivery of the
Collateral hereunder, the Collateral Agent, as agent of and on behalf of
the U.K. Company and the Trust, will obtain (1) a valid first priority,
perfected and enforceable security interest in, and a first lien on, such
Collateral subject to no other Lien, securing the redemption obligations of
the Jersey Subsidiary under the Jersey Preference Shares; and (2) a valid
and enforceable security interest in such Collateral subject to no other
Lien (other than the Lien described in the previous clause), securing the
obligations of the Jersey Subsidiary under the ADSs Purchase Contract, and,
in each case, none of such Collateral is or shall be pledged by such
Pledgor as collateral for any other purpose; and
(viii) such Pledgor is presently solvent under its jurisdiction of
incorporation and able to pay, and is paying, its debts as they come due,
and anticipates that it will continue to be able to pay its debts as they
come due for the foreseeable future.
(b) Representations and Warranties of Collateral Agent. On a continuing
--------------------------------------------------
basis during the term of this Agreement, the Collateral Agent represents and
warrants to the Pledgors and to the Trust as follows:
12
<PAGE>
(i) the Collateral Agent is a banking corporation, duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to
enter into, and perform its obligations under, this Agreement;
(ii) the execution, delivery and performance by the Collateral Agent of
this Agreement have been duly authorized by all necessary corporate action
on the part of the Collateral Agent (no action by the shareholders of the
Collateral Agent being required) and do not and will not violate,
contravene or constitute a default under any provision of applicable law or
regulation or of the charter or by-laws of the Collateral Agent or of any
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Collateral Agent; and
(iii) this Agreement has been duly and properly executed and delivered by
the Collateral Agent and constitutes a legal, valid and binding agreement
of the Collateral Agent enforceable against the Collateral Agent in
accordance with its terms, except as the enforcement of rights and remedies
may be limited by bankruptcy, insolvency, reorganization, moratorium, or
other similar laws now or hereafter in effect relating to creditors'
rights, and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
9. The Collateral Agent.
--------------------
(a) Appointment of Collateral Agent. Each of the Trust and the U.K.
-------------------------------
Company hereby appoints and designates the Collateral Agent as its agent and
custodian for the purposes set forth herein, and the Collateral Agent does
hereby accept such appointment under the terms and conditions set forth herein.
(b) Duties of Collateral Agent. The Collateral Agent undertakes to perform
--------------------------
only such duties as are expressly set forth herein. The duties and
responsibilities of the Collateral Agent hereunder shall be determined solely by
the express provisions of this Agreement and no other or further duties or
responsibilities shall be implied.
(c) Compensation. For its services in performing its duties set forth
------------
herein, the Collateral Agent shall receive such compensation as may be agreed to
separately by the parties hereto.
(d) Reliance. Subject to the limitations, covenants and provisions hereof,
--------
the Collateral Agent may rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon the face of any note,
notice, resolution, consent, certificate, affidavit, letter, telegram,
statement, order or other document furnished to it hereunder by the Trust or the
Pledgors and believed by it in good faith to be genuine and to have been signed
or presented by the proper party or parties, and shall have no responsibility
for determining the accuracy thereof.
(e) Liability of Collateral Agent. Neither the Collateral Agent nor any of
-----------------------------
its directors, officers or employees shall be liable for any action taken or
omitted by it hereunder except in the case of its wilful misfeasance, bad faith,
gross negligence or reckless disregard of its duties hereunder or its failure to
use reasonable care with respect to the custody, safekeeping
13
<PAGE>
and physical preservation of the Collateral in its possession. The Collateral
Agent may consult with counsel of its own choice, including in-house counsel,
and shall have full and complete authorization and protection for any action
taken or omitted by it hereunder in good faith and in accordance with the
opinion of such counsel. The Collateral Agent shall not be liable with respect
to any action taken, suffered or omitted by it in good faith (i) reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred on it by this Agreement or (ii) in accordance with any direction or
request of the Trustees. In no event shall the Collateral Agent be personally
liable for any taxes or other governmental charges imposed upon or in respect of
(i) the Collateral or (ii) the income or other distributions thereon. Except as
specifically provided herein, the Collateral Agent shall not be responsible for
the validity, sufficiency, collectibility or marketability of any Collateral
Delivered to or held by it hereunder or for the validity or sufficiency of the
Lien (or the priority thereof) on the Collateral purported to be created hereby.
In no event shall the Collateral Agent be liable for punitive, exemplary,
indirect or consequential damages. Except as specifically set forth herein or
contemplated hereby, the Collateral Agent shall have no duty (a) to see to any
recording, filing or depositing of this Agreement or any agreement referred to
herein or therein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any rerecording, refiling or
redepositing of any thereof, (b) to see to the maintenance of any insurance or
(c) to see to the payment or discharge of any tax, assessment, or other
governmental charge or any lien or encumbrance of any kind owing with respect
to, assessed or levied against, any part of the Collateral. The Collateral Agent
shall not be accountable for the use or application by the Trust of any of the
proceeds of the Collateral.
(f) Risk of Funds. No provision of this Agreement shall require the
-------------
Collateral Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(g) Use of Sub-Agents or Attorneys. The Collateral Agent may perform any
------------------------------
duties hereunder either directly or by or through financial intermediaries,
agents or attorneys, provided that the Collateral Agent shall remain liable to
fulfill all of such duties to the same extent, and with the same protections, as
if the Collateral Agent was performing them itself.
(h) Recitals and Statements. The Collateral Agent shall not be responsible
-----------------------
for the correctness of the recitals and statements herein which are made by the
Trust and the Pledgors or for any statement or certificate delivered by the
Pledgors pursuant hereto.
(i) Knowledge. The Collateral Agent shall not be deemed to have knowledge
---------
of any Event of Default, unless and until a Responsible Officer of the
Collateral Agent shall have actual knowledge thereof or shall have received
written notice thereof.
(j) Merger. Any corporation or association into which the Collateral Agent
may be converted or merged, or with which it may be consolidated, or any
corporation or association resulting from any such conversion, merger, or
consolidation to which it is a party, shall be and become a successor Collateral
Agent hereunder and vested with all of the title to the Collateral and all of
the powers, discretions, immunities, privileges and other matters as was its
predecessor
14
<PAGE>
without, the execution or filing of any instrument or any further act, deed or
conveyance on the part of any of the parties hereto, provided that such
corporation or association meets the requirements set forth in Section 9(m)(2)
hereof and in the Trust Agreement.
(k) Resignation of Collateral Agent. The Collateral Agent may resign and
-------------------------------
be discharged from its duties or obligations hereunder by giving sixty (60)
days' prior notice in writing of such resignation to the Trust and the Pledgors;
provided, however, that except as expressly provided in the last sentence of
this Section 9(k), the Collateral Agent shall continue to act as Collateral
Agent hereunder until a successor Collateral Agent has been appointed as
provided herein and shall have accepted such appointment. Such resignation
shall take effect upon the appointment of a successor Collateral Agent by the
Trust. If, within 30 days after notice by the Collateral Agent to the Trust and
the Pledgors of the Collateral Agent's resignation, no successor Collateral
Agent shall have been appointed and accepted the duties of the Collateral Agent
as provided herein, the Collateral Agent may apply to a court of competent
jurisdiction for the appointment of a successor Collateral Agent.
(l) Removal. The Collateral Agent may be removed at any time by an
-------
instrument or concurrent instruments in writing delivered to the Collateral
Agent and to the Pledgors and signed by the Trust.
(m) Appointment of Successor.
------------------------
(1) If the Collateral Agent hereunder shall resign or be removed, or
be dissolved or shall be in the course of dissolution or liquidation
or otherwise become incapable of action hereunder, or if it shall be
taken under the control of any public officer or officers or of a
receiver appointed by a court, a successor may be appointed by the
Trust by an instrument or concurrent instruments in writing signed by
the Trust or by its attorneys in fact fully authorized. A copy of such
instrument or concurrent instruments shall be sent by registered mail
to the Pledgors.
(2) Every such temporary or permanent successor Collateral Agent
appointed pursuant to the provisions hereof shall be a trust company
or bank in good standing, having a reported capital and surplus of not
less than $100,000,000 and capable of holding the Collateral in the
State of New York, if there be such an institution willing, qualified
and able to accept the duties of the Collateral Agent hereunder upon
customary terms.
(n) Acceptance by Successor. Every temporary or permanent successor
Collateral Agent appointed hereunder shall execute, acknowledge and deliver to
its predecessor and also to the Pledgors an instrument in writing accepting such
appointment hereunder, whereupon such successor, without any further act, deed
or conveyance, shall become fully vested with all the estates, properties,
rights, powers, duties and obligations of its predecessors. Such predecessor
shall, nevertheless, on the written request of its successor or the Pledgors,
execute and deliver an instrument transferring to such successor all the
estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Collateral Agent shall deliver all Collateral held by it as the
Collateral Agent hereunder to its successor. Should any instrument in writing
from the
15
<PAGE>
Pledgors be required by a successor Collateral Agent for more fully and
certainly vesting in such successor the estates, properties, rights, powers,
duties and obligations hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, at the request of
the temporary or permanent successor Collateral Agent, be forthwith executed,
acknowledged and delivered by the Pledgors.
10. Miscellaneous.
-------------
(a) Amendments, Etc. Any amendment or modification of any provision of
this Agreement shall be in writing and expressly approved in writing by the
parties hereto. Any terms and conditions of this Agreement may be waived in
writing at any time by the party or parties entitled to the benefits of such
terms and conditions. Any waiver shall be effective only for the specific
purpose for which given and for the specific time period, if any, contemplated
therein. A waiver of any of the terms and conditions of, or rights under, this
Agreement on one occasion shall not constitute a waiver of the other terms and
conditions of, or rights under, this Agreement, or of such terms and conditions
or rights on any other occasion.
(b) Notices and Other Communications. All notices and other communications
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
10(b)):
Pledgors: Carlotta (Investments) Limited
Templar House, Don Road
St. Helier, Jersey JE4 8WH
British Channel Islands
Telecopier: 44 1534 500 450
Attention: Company Secretary
Carlotta (UK) Company
One Silk Street
London EC2Y8HQ
Telecopier: 44-171-456-2222
Attention: Company Secretary
Collateral Agent: The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Joseph Ernst
Telephone: (212) 815-5732
Telecopier: (212) 815-5999
Trust: c/o Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19715
16
<PAGE>
Attention: Donald J. Puglisi
Telephone: (302) 738-6680
Telecopier: (302) 738-7210
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 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).
(c) Waivers. No failure or delay by any party hereto in exercising any
rights, power or privilege hereunder shall operate as a waiver thereof.
(d) Non-Assignment. No party hereto shall have the right to assign their
rights or obligations hereunder to any other person without the prior written
consent of the other parties.
(e) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HERETO HEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR
BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH
PARTY HERETO HEREBY ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THE PROVISIONS
OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE OTHER PARTIES
HERETO HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT
AND ANY DOCUMENT RELATED THERETO. EACH PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE OTHER PARTIES HERETO TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY
JURY.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE; PROVIDED THAT AS TO COLLATERAL
LOCATED IN ANY
17
<PAGE>
JURISDICTION OTHER THAN THE STATE OF NEW YORK, THE COLLATERAL AGENT ON BEHALF OF
THE U.K. COMPANY AND THE TRUST SHALL HAVE ALL OF THE RIGHTS TO WHICH A SECURED
PARTY IS ENTITLED UNDER THE LAWS OF SUCH OTHER JURISDICTION.
(g) Headings. The headings herein are for the convenience of reference
--------
only and shall not affect the meaning or construction of any provision hereof.
(h) Entire Agreement. This Agreement contains the entire agreement between
----------------
the parties relating to the subject matter hereof and supersede all oral
statements and prior writings with respect thereto.
(i) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be deemed for
all purposes an original, but all such counterparts shall constitute but one and
the same instrument.
(j) Force Majeure. None of the Pledgors, the Collateral Agent or the Trust
-------------
shall be responsible for delays or failures in performance resulting from acts
beyond its control. Such acts shall include but not be limited to acts of God,
strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, power failures, computer viruses, earthquakes
or other disasters.
(k) Binding Effect. This Agreement shall be binding upon the respective
--------------
parties hereto and their respective successors and assigns. All the covenants
and agreements herein contained by or on behalf of the Pledgors and the
Collateral Agent shall be enforceable by and inure to the benefit of the Trust
and its successors and assigns.
(l) Separability. To the extent permitted by law, the unenforceability or
------------
invalidity of any provision or provisions of this Agreement shall not render any
other provision or provisions herein contained unenforceable or invalid.
11. Termination of Agreement. This Agreement and the rights hereby granted by
------------------------
the Pledgors in the Collateral shall cease, terminate and be void upon
fulfillment of all of the obligations of the Jersey Subsidiary under the Jersey
Preference Shares and the ADSs Purchase Contract, and the Pledgors shall have no
further liability hereunder upon such termination.
12. Application of Bankruptcy Code. The parties hereto acknowledge and agree
------------------------------
that the Collateral Agent is a "financial institution" within the meaning of
Section 101(22) of the Bankruptcy Code and is acting hereunder as agent and
custodian for the Trust and that the Trust is a "customer" of the Collateral
Agent within the meaning of said Section 101(22).
13. No Personal Liability of Trustees. By executing and delivering this
---------------------------------
Agreement, none of the Trustees assumes, and in no event shall incur, any
personal liability hereunder, other than as expressly provided by law.
14. Limitation on Liability. Notwithstanding anything to the contrary
-----------------------
contained herein, no recourse shall be had, whether by levy or execution or
otherwise, for any claim based on this Agreement or in respect hereof against
any incorporator, shareholder or affiliate of the Trust or
18
<PAGE>
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 Agreement by the
Trust. Notwithstanding anything to the contrary contained herein, nothing in
this Section shall be construed to affect or limit the Pledgors' obligations
under this Agreement.
15. Consent to Jurisdiction. Each Pledgor agrees that any legal suit, action
-----------------------
or proceeding brought by the Trust or the Collateral Agent or by any person
controlling the Trust or the Collateral Agent, 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. Each Pledgor has
appointed 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 Trust or the Collateral Agent and
expressly accepts the jurisdiction of any such court in respect of such action.
Such appointment shall be irrevocable unless and until this Agreement is
terminated or 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
such Pledgor and such appointment shall have been accepted by such successor
authorized agent. Such Pledgor represents and warrants that CT Corporation has
agreed to act as said agent for service of process, and such Pledgor 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 such Pledgor shall be deemed, in every
respect, effective service of process upon such Pledgor.
16. Judgement Currency. Each Pledgor hereby agrees to indemnify the Trust and
------------------
the Collateral Agent against any loss incurred by the Trust or the Collateral
Agent 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 Trust or the Collateral Agent would
have been able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such Trust or Collateral Agent had utilized such amount of
Judgment Currency to purchase U.S. dollars as promptly as practicable upon the
receipt by the Trust or the Collateral Agent thereof. The foregoing indemnity
shall constitute a separate and independent obligation of the Pledgor and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include and allowance for any
customary or reasonable or premium and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
19
<PAGE>
17. Waiver of Immunities. To the extent such Pledgor 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, such Pledgor 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.
20
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or representatives thereunto duly
authorized as of the day and year first above written.
CARLOTTA (UK) COMPANY
By: _______________________________
Name:
Title:
CARLOTTA (INVESTMENTS) LIMITED
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Collateral Agent
By: _______________________________
Name:
Title:
ANZ EXCHANGEABLE PREFERRED TRUST
By: _______________________________
Donald J. Puglisi
Managing Trustee
21
<PAGE>
Exhibit A
---------
CONTROL AGREEMENT
This Control Agreement dated as of September __, 1998 among ANZ
Exchangeable Preferred Trust, a business trust created pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del. C. (Sections 3801 et seq.)) (such trust and the trustees thereof acting
in their capacity as such being referred to herein as the "Trust"), Carlotta
(UK) Company, a special purpose company with unlimited liability incorporated
under the laws of, and domiciled in, the United Kingdom (the "U.K. Company"),
Carlotta (Investments) Limited, a company incorporated with limited liability
under the laws of, and domiciled in, Jersey, the Channel Islands (the "Jersey
Subsidiary") (the U.K. Company and the Jersey Subsidiary being sometimes
individually referred to herein as a "Pledgor" and collectively as the
"Pledgors"), The Bank of New York, a New York banking corporation, in its
capacities as agent and custodian for and on behalf of the U.K. Company and the
Trust, as applicable (the "Collateral Agent"). and as securities intermediary
(the "Securities Intermediary"). Capitalized terms used but not defined herein
shall have the meaning assigned in the ADRs Security and Pledge Agreement dated
as of September __, 1998, among the Trust, the U.K. Company, the Jersey
Subsidiary and the Collateral Agent (the "Security Agreement"). All references
herein to the "UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York.
Section 1. Establishment of Securities Account. The Securities
-----------------------------------
Intermediary hereby confirms that (i) the Securities Intermediary has
established account number _______ in the name of the Collateral Agent, as agent
and custodian of the U.K. Company and the Trust (such account and any successor
account the "Securities Account"), (ii) the Securities Account is a "securities
account" as such term is defined in Section 8-501(a) of the UCC, (iii) the
Securities Intermediary shall, subject to the terms of this Agreement, treat the
Trust as entitled to exercise the rights that comprise any financial asset
credited to the account, (iv) all property delivered to the Securities
Intermediary pursuant to the Security Agreement will be promptly credited to the
Securities Account, and (v) all securities or other property underlying any
financial assets credited to the Securities Account shall be registered in the
name of the Securities Intermediary, indorsed to the Securities Intermediary or
in blank or credited to another securities account maintained in the name of the
Securities Intermediary and in no case will any financial asset credited to the
Securities Account be registered in the name of the Pledgors, payable to the
order of the Pledgors or specially endorsed to the Pledgors except to the extent
the foregoing have been specially endorsed to the Securities Intermediary or in
blank.
Section 2. "Financial Assets" Election. The Securities Intermediary
hereby agrees that each item of property (whether investment property, financial
asset, security, instrument or cash) credited to the Securities Account shall be
treated as a "financial asset" within the meaning of Section 8-102(a) (9) of the
UCC.
Section 3. Entitlement Orders. If at any time the Securities Intermediary
shall receive an "entitlement order" (within the meaning of Section 8-102(a)(8)
of the UCC) issued by the Collateral Agent on behalf of each Secured Party and
relating to the Securities Account, the
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Securities Intermediary shall comply with such entitlement order without further
consent by the Pledgors or any other person.
Section 4: Subordination of; Lien; Waiver of Set-Off. In the event that
----------------------------------------
the Securities Intermediary has or subsequently obtains by agreement, operation
of law or otherwise a security interest in the Securities Account or any
security entitlement credited thereto, the Securities Intermediary hereby agrees
that such security interest shall be subordinate to the security interests of
the Trust created under the Security Agreement. The financial assets and other
items deposited to the Securities Account will not be subject to deduction, set-
off, banker's lien, or any other right in favor of any person other than the
Trust (except that the Securities Intermediary may set off the face amount of
any checks which have been credited to the Securities Account but are
subsequently returned unpaid because of uncollected or insufficient funds).
Section 5. Choice of Law. Both this Agreement and the Securities Account
-------------
shall be governed by the laws of the State of New York. Regardless of any
provision in any other agreement, for purposes of the UCC, New York shall be
deemed to be the Securities Intermediary's location and the Securities Account
(as well as the securities entitlements related thereto) shall be governed by
the laws of the State of New York.
Section 6. Conflict with other Agreements. There are no other agreements
------------------------------
entered into between the Securities Intermediary and the Pledgors with respect
to the Securities Account In the event of any conflict between this Agreement
(or any portion thereof) and any other agreement hereafter entered into, the
terms of this Agreement shall prevail.
Section 7. Amendments. No amendment or modification of this Agreement or
----------
waiver of any right hereunder shall be binding on any party hereto unless it is
in writing and is signed by all of the parties hereto.
Section 8. Notice of Adverse Claims. Except for the claims and interest
------------------------
of the U.K. Company and the Trust in the Securities Account created under the
Security Agreement, the Securities Intermediary does not know of any claim to,
or interest in, the Securities Account or in any "financial asset" (as defined
in Section 8-102(a) of the UCC) credited thereto. If any person asserts any
lien, encumbrance or adverse claim (including any writ, garnishment, judgment,
warrant of attachment, execution or similar process) against the Securities
Account or in any financial asset carried therein, the Securities Intermediary
will promptly notify the Collateral Agent, the Trust and the Pledgors thereof.
Section 9. Maintenance of Securities Account. In addition to, and not in
---------------------------------
lieu of, the obligation of the Securities Intermediary to honor entitlement
orders as agreed in Section 3 hereof, the Securities Intermediary agrees to
maintain the Securities Account in accordance with this Section 9. The
Collateral shall be maintained by the Securities Intermediary in a separate non-
commingled account and the Collateral Agent shall use reasonable care with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession and shall accord the Collateral treatment substantially equal
to that which it accords its own property, it being understood that the
Securities Intermediary in its capacity as such shall not, except as
specifically set forth herein or contemplated hereby, have any responsibility
for (i) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities or other matters relative
2
<PAGE>
to any Collateral, whether or not the Securities Intermediary has or is deemed
to have knowledge of such matters or (ii) taking any necessary steps to preserve
rights against parties with respect to any Collateral. The Securities
Intermediary shall have no right of offset against the Collateral with respect
to any amounts owed to the Securities Intermediary, whether or not arising under
this Agreement, and the Securities Intermediary hereby waives any such right of
offset that it may otherwise have. Except as specifically provided herein, the
Securities Intermediary covenants and agrees that it will not sell, assign,
transfer, exchange or otherwise dispose of, or grant any option with respect to,
any of the Collateral, nor will it create, incur or permit to exist any Lien or
Transfer Restriction on or with respect to any of the Collateral, any interest
therein, or any proceeds thereof, except as may be created or permitted by this
Agreement or the Security Agreement.
Section 10. Representations, Warranties and Covenants of the Securities
------------------------------------------------------------
Intermediary. The Securities Intermediary hereby makes the following
- ------------
representations, warranties and covenants:
(a) The Securities Account has been established as set forth in Section 1
above and the Securities Account will be maintained in the manner set forth
herein until termination of this Agreement. The Securities Intermediary shall
not change the name or account number of the Securities Account without the
prior written consent of the Trust.
(b) No financial asset is or will be registered in the name of the
Pledgors, payable to his order, or specially endorsed to them, except to the
extent such financial asset has been endorsed to the Securities Intermediary or
in blank.
(c) This Securities Account Control Agreement is the valid and legally
binding obligations of the Securities Intermediary.
(d) The Securities Intermediary has not entered into, and until the
termination of the this agreement will not enter into, any agreement with any
other person relating to any of the Securities Account and/or any financial
assets credited thereto pursuant to which it has agreed to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of such
person. The Securities Intermediary has not entered into any other agreement
with the Pledgors or the Trust purporting to limit or condition the obligation
of the Securities Intermediary to comply with entitlement orders as set forth in
Section 3 hereof.
Section 11. Successors. The terms of this Agreement shall be binding
----------
upon, and shall inure to the benefit of, the parties hereto and their respective
corporate successors or heirs and personal representatives.
Section 12. Notices. Any notice, request or other communication required
-------
or permitted to be given under this Agreement shall be in accordance with the
notice provisions in the Security Agreement. Notices to the Securities
Intermediary shall be made to the Collateral Agent.
Section 13. Termination. The rights and powers granted herein to the
-----------
Trust have been granted in order to perfect its security interests in the
Securities Account, are powers coupled with an interest and will neither be
affected by the bankruptcy of the Pledgors nor by the lapse of
3
<PAGE>
time. The obligations of the Securities Intermediary hereunder shall continue in
effect until the security interests of the Trust in the Securities Account has
been terminated pursuant to the terms of the Security Agreement and the Trust
has notified the Securities Intermediary of such termination in writing.
Section 14. Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or representatives thereunto duly
authorized as of the day and year first above written.
CARLOTTA (UK) COMPANY
By: _______________________________
Name:
Title:
CARLOTTA (INVESTMENTS) LIMITED
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Collateral Agent
By: _______________________________
Name:
Title:
ANZ EXCHANGEABLE PREFERRED TRUST
By: _______________________________
Donald J. Puglisi
Managing Trustee
5
<PAGE>
Exhibit B
---------
NOTICE OF PLEDGE
================
(Carlotta (Investments)Limited)
===============================
[DATE]
To: Australia and New Zealand Banking Group Limited
New York Branch
c/o Australia and New Zealand
Banking Group,
Dear Sirs,
We hereby give you notice that by an agreement dated [ ] 1998, Carlotta
(Investments) Limited (the "Jersey Subsidiary") has pledged, assigned, granted
and conveyed unto The Bank of New York ("Collateral Agent") as agent and
custodian for and on behalf of Carlotta (UK) Company and ANZ Exchangeable
Preferred Trust all of the Jersey Subsidiary's right, title and interest in and
to the American Depositary Receipts ("ADRs") evidencing, ______ American
Depositary Shares ("ADSs") each representing four fully paid non-cumulative
preference shares, liquidation preference US$6.25 per share (the "ANZ Preference
Shares"), issued by Australia and New Zealand Banking Group Limited ("ANZ")
pledged, assigned and transferred pursuant to the ADRs Security and Pledge
Agreement.
Please acknowledge receipt of this notice and confirm your agreement to the
above instructions, by signing the attached copy of this notice.
Yours faithfully
For and on behalf of
Carlotta (Investments) Limited
Director
1
<PAGE>
Exhibit 99(k)(5)
______________________________________________________________________________
______________________________________________________________________________
ANZ EXCHANGEABLE PREFERRED TRUST
JERSEY PREFERENCE SHARES SECURITY AND PLEDGE AGREEMENT
------------------------------------------------------
Dated: September __, 1998
______________________________________________________________________________
______________________________________________________________________________
<PAGE>
Table of Contents
Page
----
1. Definitions........................................... 2
(a) Defined Terms......................................... 2
(b) Uniform Commercial Code............................... 5
(c) Terms Defined in the Trust Agreement.................. 5
2. Delivery by the Pledgor to Collateral Agent........... 5
(a) Initial Delivery of Collateral........................ 5
(b) Collateral Requirement................................ 5
3. Grant of Security Interest............................ 5
4. Maintenance of Collateral............................. 7
5. Voting and Distributions in Respect of Collateral..... 7
6. Remedies Upon Events of Default....................... 8
(a) Delivery Upon Event of Default........................ 8
(b) Power of Attorney..................................... 8
(c) Waivers by the Pledgor................................ 9
(d) Rights and Remedies Under the Uniform Commercial Code. 9
7. Other Provisions Regarding the Collateral............. 9
(a) No Disposition........................................ 9
(b) Further Protections................................... 9
(c) Delay in Enforcement; No Waiver....................... 9
8. Representations and Warranties........................ 9
(a) Representations and Warranties of Pledgor............. 9
(b) Representations and Warranties of Collateral Agent.... 11
9. The Collateral Agent.................................. 11
(a) Appointment of Collateral Agent....................... 11
(b) Duties of Collateral Agent............................ 11
(c) Compensation.......................................... 11
(d) Reliance.............................................. 12
(e) Liability of Collateral Agent......................... 12
(f) Risk of Funds......................................... 12
(g) Use of Sub-Agents or Attorneys........................ 12
(h) Recitals and Statements............................... 13
(i) Knowledge............................................. 13
(j) Merger................................................ 13
(k) Resignation of Collateral Agent....................... 13
(l) Removal............................................... 13
(m) Appointment of Successor.............................. 13
(n) Acceptance by Successor............................... 14
10. Miscellaneous......................................... 14
(a) Amendments, Etc....................................... 14
(b) Notices and Other Communications...................... 14
(c) Waivers............................................... 15
(d) Non-Assignment........................................ 16
i
<PAGE>
(e) Waiver of Jury Trial.................................. 15
(f) Governing Law......................................... 16
(g) Headings.............................................. 16
(h) Entire Agreement...................................... 16
(i) Counterparts.......................................... 16
(j) Force Majeure......................................... 16
(k) Binding Effect........................................ 16
(l) Separability.......................................... 17
11. Termination of Agreement.............................. 17
12. Application of Bankruptcy Code........................ 17
13. No Personal Liability of Trustees..................... 17
14. Limitation on Liability............................... 17
15. Consent to Jurisdiction............................... 17
16. Judgement Currency.................................... 18
17. Waiver of Immunities.................................. 18
EXHIBIT A Notice of Assignment
ii
<PAGE>
JERSEY PREFERENCE SHARES SECURITY AND PLEDGE AGREEMENT
This Security and Pledge Agreement (the "Agreement") is made as of
September __, 1998 among ANZ Exchangeable Preferred Trust, a business trust
created pursuant to the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. (Sections 3801 et seq.)) (such trust
and the trustees thereof acting in their capacity as such being referred to
herein as the "Trust"), Carlotta (UK) Company, a special purpose company with
unlimited liability incorporated under the laws of England and Wales (the "U.K.
Company" or the "Pledgor"), and The Bank of New York, a New York banking
corporation, as agent and custodian for and on behalf of the Trust (the
"Collateral Agent").
WHEREAS, the Trust has filed with the Securities and Exchange Commission a
registration statement on Form N-2 (File Nos. 333-58751 and 811-08865) and Pre-
Effective Amendments No. 1, 2 and 3 thereto contemplating the offering (the
"Offering") of up to of its Trust Units Exchangeable for Preference
Shares(SM) (the "TrUEPrS (SM)"), the terms of which contemplate that the Trust
will distribute to the Holders (as defined in the Trust Agreement described
below) of TrUEPrS, upon the occurrence of an Exchange Event (as defined in the
Trust Agreement), either (i) American Depositary Receipts ("ADRs") evidencing,
for each TrUEPrS, one American Depositary Share ("ADS") representing four fully
paid non-cumulative preference shares, liquidation preference US$6.25 per share
(the "ANZ Preference Shares"), issued by Australia and New Zealand Banking Group
Limited ("ANZ"), or (ii) if the Exchange Event is the redemption or mandatory
repurchase of the ANZ Preference Shares for cash, Holders of TrUEPrS will be
entitled to receive US$25 per TrUEPrS plus the accrued dividend distribution
thereon for the current quarterly dividend period and not ADRs.
WHEREAS, concurrently with the execution and delivery of this Agreement,
the TrUEPrS are being issued pursuant to the Second Amended and Restated Trust
Agreement, dated as of September ___, 1998 (the "Trust Agreement"), among the
trustees of the Trust, ML IBK Positions, Inc., as Sponsor, and the Holders of
the TrUEPrS.
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Trust is using the proceeds of the Offering to purchase the __% Mandatorily
Redeemable Debt Securities due 2047 (the "Debt Securities") issued by the U.K.
Company with an aggregate principal amount equal to such proceeds.
WHEREAS, concurrently with the execution and delivery of this Agreement,
the U.K. Company is using the proceeds from the sale of the Debt Securities to
purchase at a price equal to their liquidation preference fully paid
non-dividend paying preference shares, liquidation preference US$25 per share
(the "Jersey Preference Shares"), issued by Carlotta (Investments) Limited (the
"Jersey Subsidiary").
________________________
(SM) Service Mark of Merrill Lynch & Co., Inc.
<PAGE>
WHEREAS, concurrently with the execution and delivery of the Agreement, the
Jersey Subsidiary is using the proceeds from the sale of the Jersey Preference
Shares to make a payment to ANZ in consideration of the issuance by the ADR
depositary of ADRs evidencing up to ADSs each of which represents
four ANZ Preference Shares deposited by ANZ.
WHEREAS, concurrently with the execution of this Agreement, the U.K.
Company is Delivering Jersey Preference Shares to the Collateral
Agent, as agent of and for the benefit of the Trust, which has agreed to hold
such shares pursuant to the terms hereof as security for the redemption
obligations of the U.K. Company under the Debt Securities.
WHEREAS, the Trust and the Pledgor desire that the redemption obligations
of the U.K. Company under the Debt Securities shall be secured pursuant to the
terms hereof.
WHEREAS, pursuant to the ADRs Security and Pledge Agreement (the "ADRs
Security and Pledge Agreement"), among the Trust, the Jersey Subsidiary, the
U.K. Company and the Collateral Agent, (i) the Jersey Subsidiary has granted a
security interest in the ADRs Delivered thereunder and any cash redemption
proceeds thereof for the benefit of the U.K. Company, as pledgee thereof, as
security for the redemption obligations of the Jersey Subsidiary under the
Jersey Preference Shares, (ii) the U.K. Company, with the consent of the Jersey
Subsidiary, has pledged, transferred and assigned its security interest in the
ADRs and its rights under the ADSs Security and Pledge Agreement to the Trust,
as pledgee and assignee thereof, as security for the redemption obligations of
the U.K. Company under the Debt Securities, and (iii) the Jersey Subsidiary,
with the consent of the U.K. Company, has granted a security interest in the
ADRs to the Trust, as security for the Jersey Subsidiary's obligations under the
ADSs Purchase Contract, such security interest being subject to the prior Lien
granted by the Jersey Subsidiary to the U.K. Company and hypothecated by the
U.K. Company to the Trust, as security for the Jersey Subsidiary's redemption
obligations under the Jersey Preference Shares.
WHEREAS, the Trust, the U.K. Company and the Jersey Subsidiary desire that,
upon the occurrence of an Exchange Event, the ADRs or the cash redemption
proceeds thereof will be delivered to the Trust for distribution to the Holders.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions.
-----------
(a) Defined Terms. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following
terms, when used herein, shall have the following meanings:
"ADRs" has the meaning specified in the first recital in this Agreement.
"ADRs Security and Pledge Agreement" has the meaning specified in the
eighth recital to this Agreement.
2
<PAGE>
"ADSs" has the meaning specified in the first recital in this Agreement.
"ADSs Purchase Contract" means the ADSs Purchase Contract, dated September
__, 1998, between the Trust and the Jersey Subsidiary, as amended pursuant to
the terms thereof.
"Agreement" means this Security and Pledge Agreement and any schedules and
exhibits hereto.
"ANZ" has the meaning specified in the first recital in this Agreement.
"ANZ Preference Shares" has the meaning specified in the first recital in
this Agreement.
"Collateral" means all the Jersey Preference Shares Delivered to the
Collateral Agent hereunder and held by the Collateral Agent and any proceeds
from the redemption thereof.
"Collateral Amount" means, as of any date of determination, the amount of
Collateral then held by the Collateral Agent.
"Collateral Agent" means the financial institution identified as such in
the introductory paragraph hereof, or any successor appointed in accordance with
Section 9(l).
"Debt Securities" has the meaning specified in the third recital in this
Agreement.
"Delivery" means with respect to the Jersey Preference Shares, the
delivery of such shares, free and clear of all Liens (other than a Lien created
or permitted by this Agreement, the ADRs Security and Pledge Agreement or any
Lien created by the Trust), to the Collateral Agent at such location in The City
of New York as it shall direct, in accordance with Section 2(a) hereof,
registered in the name of the Collateral Agent or its nominee or in suitable
form for delivery and transfer, accompanied by duly executed instruments of
transfer or assignment in blank and accompanied by any required transfer tax
stamps. The term "Deliver" used as a verb has a corresponding meaning.
"Event of Default" means the occurrence of an Exchange Event.
"Jersey Law" means the Security Interests (Jersey) Law 1983, as amended.
"Jersey Preference Shares" has the meaning specified in the fourth recital
in this Agreement.
"Jersey Subsidiary" has the meaning specified in the fourth recital in this
Agreement.
"Lien" means any lien, mortgage, security interest, pledge, charge,
encumbrance, claim or equity of any kind.
"Offering" has the meaning specified in the first recital in this
Agreement.
"Pledgor" has the meaning specified in the introductory paragraph of this
Agreement.
3
<PAGE>
"Required Collateral Amount" means the Collateral required to be held by
the Collateral Agent in order to secure the prompt and complete payment and
delivery of the redemption proceeds of the Debt Securities in accordance with
the terms thereof; the Required Collateral Amount shall at all times equal the
aggregate principal amount in US dollars of the Debt Securities held by the
Trust.
"Responsible Officer" means, when used with respect to the Collateral
Agent, any vice president, assistant vice president, trust officer, assistant
treasurer or assistant secretary located in the division or department of the
Collateral Agent responsible for performing the obligations of the Collateral
Agent under this Agreement, or in any other division or department of the
Collateral Agent performing operations substantially equivalent to those
performed by such division or department pursuant hereto, or any other officer
of the Collateral Agent or any successor Collateral Agent customarily performing
functions similar to those performed by any of the aforesaid officers, and also
means, with respect to any matter relating to this Agreement or the Collateral,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Transfer Restriction" means, with respect to any item of Collateral, any
condition to or restriction on the ability of the holder thereof to sell, assign
or otherwise transfer such item of Collateral or to enforce the provisions
thereof or of any document related thereto whether set forth in such item of
Collateral itself or in any document related thereto, including, without
limitation, (i) any requirement that any sale, assignment or other transfer or
enforcement of such item of Collateral be consented to or approved by any
Person, including, without limitation, the issuer thereof or any other obligor
thereon, (ii) any limitations on the type or status, financial or otherwise, of
any purchaser, pledgee, assignee or transferee of such item of Collateral, (iii)
any requirement of the delivery of any certificate, consent, agreement, opinion
of counsel, notice or any other document of any Person to the issuer of, any
other obligor on or any registrar or transfer agent for, such item of
Collateral, prior to the sale, pledge, assignment or other transfer or
enforcement of such item of Collateral and (iv) any registration or
qualification requirement for such item of Collateral pursuant to any federal,
state or foreign securities law; provided that (x) the required delivery of any
assignment from the seller, pledgor, assignor or transferor of such item of
Collateral, together with any evidence of the corporate or other authority of
such Person, or (y) any registration or qualification requirement for such item
of Collateral pursuant to any federal, state or foreign securities law which is
generally applicable to all holders of such item of Collateral, shall not
constitute a "Transfer Restriction."
"TrUEPrS" has the meaning specified in the first recital in this Agreement.
"Trust" has the meaning specified in the introductory paragraph of this
Agreement.
"Trust Agreement" has the meaning specified in the second recital in this
Agreement.
"Trustee" or "Trustees" means any trustee or trustees of the Trust
identified on the signature pages to the Trust Agreement, or any successor as
such trustee or trustees.
4
<PAGE>
"U.K. Company" has the meaning specified in the introductory paragraph of
this Agreement.
"Uniform Commercial Code" means, at any time, the Uniform Commercial Code
in effect at such time in the State of New York or deemed to be in effect
pursuant to U.S. law and regulations applicable thereto.
(b) Uniform Commercial Code. Unless otherwise defined herein, all terms
defined in Article 8 or Article 9 of the Uniform Commercial Code are used herein
as therein defined.
(c) Terms Defined in the Trust Agreement. Capitalized words and phrases
used herein and not otherwise defined herein are used herein as defined in the
Trust Agreement.
2. Delivery by the Pledgor to Collateral Agent.
-------------------------------------------
(a) Initial Delivery of Collateral. The U.K. Company shall Deliver or
cause the Delivery of the Jersey Preference Shares representing the Required
Collateral Amount as of the date hereof to the Collateral Agent by:
(i) the physical delivery of such certificated security representing
such shares to the Collateral Agent endorsed in blank; and
(ii) the Collateral Agent maintaining continuous possession of such
certificated security or instrument in the State of New York.
(b) Collateral Requirement. If at any time subsequent to the date hereof,
the Collateral Amount is less than the Required Collateral Amount, the Pledgor
shall Deliver, or cause to be Delivered, in accordance with Section 2(a) hereof,
to the Collateral Agent additional Jersey Preference Shares such that the
Collateral Amount will at all times equal the Required Collateral Amount. The
Collateral Agent shall hold such additional shares as from time to time may be
Delivered or caused to be Delivered, to the Collateral Agent as Collateral as
expressly provided herein in order to perfect the continuing first priority
security interest in such Collateral granted to the Collateral Agent, as agent
of and for the benefit of the Trust.
3. Grant of Security Interest.
--------------------------
(a) As security for the prompt and complete payment and delivery of the
redemption proceeds of the Debt Securities in accordance with the terms thereof,
the Pledgor hereby pledges, assigns, grants and conveys unto the Collateral
Agent, as agent of and for the benefit of the Trust, a continuing first priority
security interest under the Uniform Commercial Code or other applicable law in
and to, and a general first lien upon and right of set-off against and a first
fixed charge of, the Pledgor's right, title and interest in and to, the Jersey
Preference Shares which are hereby Delivered to the Collateral Agent on behalf
of the Trust and, upon the redemption thereof, the proceeds thereof, as security
pursuant to and in accordance with the provisions of this Agreement, all
certificates or instruments representing or evidencing any or all of the
foregoing, and all distributions or dividends and proceeds from time to time
received, receivable or otherwise distributed in respect of, or in exchange for,
any or all of the foregoing (whether
5
<PAGE>
such proceeds arise before or after the commencement of any proceeding under any
applicable bankruptcy, insolvency or other similar law, by or against the
Pledgor and, subject to Section 5 hereof, all powers and rights of the Pledgor
now or hereafter acquired by the Pledgor, including rights of enforcement, under
or with respect to any or all of the foregoing.
The parties hereto further agree that the Pledgor's pledge, transfer and
assignment hereby of the Collateral to the Collateral Agent, as agent of and for
the benefit of the Trust, shall create and constitute a security interest under
the terms of Jersey Law.
(b)(i) The Pledgor shall, at its expense and in such manner and form as the
Trust or the Collateral Agent may reasonably require, give, execute, deliver,
file and record any financing statement, notice, instrument, document, agreement
or other papers, and shall take all other action, that may be necessary or
desirable in order to create, preserve, perfect, substantiate or validate any
security interest in the Collateral granted by the Pledgor pursuant hereto or to
enable the Collateral Agent to exercise and enforce its rights and the rights of
the Trust hereunder with respect to such security interest.
(ii) The Pledgor hereby undertakes (A) to complete and file with the
Companies Office Registry of the United Kingdom registration forms
(standard form 395) and original executed counterpart signature pages of
this Agreement, registering the security interests created hereunder, as
soon as possible after execution of this Agreement, but no later than 10
Business Days subsequent to the date hereof, (B) to promptly execute and
deliver to the Collateral Agent financing statements conforming to the
Uniform Commercial Code in effect in the states of New York and Delaware
and any jurisdictions deemed appropriate by the Collateral Agent, and such
other documents as may be necessary or desirable in order to perfect the
security interest granted hereby, all in a form the Collateral Agent
reasonably deems to be acceptable; and, (C) contemporaneously with the
execution of this Agreement, to deliver to the Jersey Subsidiary a notice
substantially in the form attached hereto as Exhibit A and to procure the
acknowledgement of such notice by the Jersey Subsidiary, in each case, all
in a form deemed acceptable to the Collateral Agent.
(iii) Upon the request of the Collateral Agent, the Pledgor also agrees
to execute and deliver to the Collateral Agent for filing by the Collateral
Agent continuation statements conforming to the Uniform Commercial Code in
effect in any state or jurisdiction deemed appropriate by the Collateral
Agent and in a form the Collateral Agent reasonably deems to be acceptable.
If the Pledgor fails to deliver to the Collateral Agent financing
statements or continuation statements that the Collateral Agent requests,
the Collateral Agent may, to the extent permitted by law and without
limiting its other rights under this Agreement, execute and file in the
Pledgor's name, as the Pledgor's attorney-in-fact, such documents and the
Pledgor does hereby designate the Collateral Agent as its attorney-in-fact
to execute and file any such financing statement or continuation statement.
4. Maintenance of Collateral. The Collateral shall be maintained by the
Collateral Agent in a separate non-commingled account and the Collateral Agent
shall use reasonable care
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with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession and shall accord the Collateral treatment
substantially equal to that which it accords its own property, it being
understood that the Collateral Agent in its capacity as such shall not, except
as specifically set forth herein or contemplated hereby, have any responsibility
for (i) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities or other matters relative to any Collateral, whether or
not the Collateral Agent has or is deemed to have knowledge of such matters or
(ii) taking any necessary steps to preserve rights against parties with respect
to any Collateral. The Collateral Agent shall have no right of offset against
the Collateral with respect to any amounts owed to the Collateral Agent, whether
or not arising under this Agreement, and the Collateral Agent hereby waives any
such right of offset that it may otherwise have. Except as specifically provided
herein, the Collateral Agent covenants and agrees that it will not sell, assign,
transfer, exchange or otherwise dispose of, or grant any option with respect to,
any of the Collateral, nor will it create, incur or permit to exist any Lien or
Transfer Restriction on or with respect to any of the Collateral, any interest
therein, or any proceeds thereof, except as may be created or permitted by this
Agreement.
(b) The Pledgor shall not be entitled to receive for its own account any
dividends, distributions and other payments relating to the Collateral. The
Collateral Agent shall retain such payments (and any such payments which are
received by the Pledgor shall be received in trust for the benefit of the Trust,
shall be segregated from other funds of the Pledgor and shall forthwith be paid
over to the Collateral Agent), and the Collateral Agent shall hold all such
payments so retained by, or paid over to, the Collateral Agent as Collateral
hereunder and maintain such Collateral in accordance with this Section. The
security interest of the Collateral Agent shall continue in any such payment so
retained by, or paid over to, the Collateral Agent.
5. Voting and Distributions in Respect of Collateral.
--------------------------------------------------
(a) The U.K. Company shall cause the Collateral Agent to vote the Jersey
Preference Shares as directed by the Holders of the TrUEPrS in accordance with
the procedures set forth herein.
(b) Each TrUEPrS will entitle the Holder thereof to direct the exercise of
the voting rights attaching to one Jersey Preference Shares.
(c) Upon receipt of notice of any meeting at which Holders of Jersey
Preference Shares are entitled to vote, (x) the U.K. Company shall, as soon as
practicable thereafter, notify the Collateral Agent, (y) the Collateral Agent
shall, as soon as practicable thereafter, mail to the Trustees of the Trust and
(z) the Trustees of the Trust shall, as soon as practicable thereafter, notify
the Holders of TrUEPrS a notice, which notification, in each case shall be
transmitted by all reasonable means, which shall contain (i) such information as
is contained in such notice of meeting, (ii) a statement whether the Holders of
TrUEPrS at the close of business on a specified record date will be entitled, in
accordance with any applicable provisions of Jersey, Channel Islands law and of
the Memorandum and Articles of Association of the Jersey Subsidiary, resolutions
of the Board of Directors of the Jersey Subsidiary and the Trust Agreement, to
instruct the Trustees of the Trust, who will in turn instruct the U.K. Company
as to the exercise of the voting rights, if any, pertaining to the Jersey
Preference Shares, and (iii) a statement as to
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the manner in which such instructions may be given, including an express
indication that instructions may be given on behalf of such Holders by the
Trustees of the Trust to the U.K. Company. The Collateral Agent shall furnish
the Depositary with copies of all such notices and statements and any other
materials relating thereto prior to the mailing thereof by the Collateral Agent
to the Trust. Upon the written request of a Holder of TrUEPrS on such record
date, received on or before the date established by the Collateral Agent for
such purpose, the U.K. Company shall endeavor insofar as practicable to vote or
cause to be voted each Jersey Preference Share in accordance with any non-
discretionary instructions set forth in such request. The U.K. Company shall not
vote or attempt to exercise the right to vote that attaches to the Jersey
Preference Shares other than in accordance with the Holder's instructions.
Neither the U.K. Company nor the Jersey Subsidiary shall be under any obligation
to verify instructions received from Holders and voted upon by the Collateral
Agent.
(d) The parties hereto agree, in the manner and form as the Jersey
Subsidiary or the Collateral Agent may reasonably require, to give, execute and
deliver any proxy or such other document necessary to give effect to any voting
arrangements set forth in this Section.
6. Remedies Upon Events of Default.
-------------------------------
(a) Delivery Upon Event of Default. If an Event of Default shall have
occurred and be continuing, the Collateral Agent shall deliver the Collateral to
the Trust as soon as practicable thereafter, whereupon the Trust shall hold such
Collateral, with all such rights afforded to the Collateral Agent hereunder, and
any rights it may have as the holder of the Debt Securities, free and clear of
all Liens (other than Liens created by the Trust) and Transfer Restrictions
(other than Transfer Restrictions created by the Trust), including any equity or
right of redemption of the Pledgor which may be waived, and the Pledgor, to the
extent permitted by law, hereby specifically waives all rights of redemption,
stay or appraisal which it has or may have under any law now existing or
hereafter adopted.
(b) Power of Attorney. Upon any delivery of all or any part of any
Collateral duly made under the power of delivery given hereunder or under
judgment or decree in any judicial proceedings for foreclosure or otherwise for
the enforcement of this Agreement, the Collateral Agent is hereby irrevocably
appointed the true and lawful attorney of the Pledgor, in the names and stead of
the Pledgor, to make all necessary deeds, bills of sale and instruments of
assignment, transfer or conveyance of the property thus delivered. For that
purpose the Collateral Agent may execute all such documents and instruments.
This power of attorney shall be deemed coupled with an interest, and the Pledgor
hereby ratifies and confirms all that attorneys acting under such power, or such
attorneys' successors or agents, shall lawfully do by virtue of this Agreement.
If so requested by the Collateral Agent or by the Trustees, the Pledgor shall
further ratify and confirm any such delivery by executing and delivering to the
Collateral Agent or to the Trustees at the expense of the Pledgor all proper
deeds, instruments of assignment, conveyance of transfer and releases as may be
designated in any such request.
(c) Waivers by the Pledgor. The Pledgor waives any presentment, demand,
protest or, to the extent permitted by applicable law, notice in connection with
this Agreement. The
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Pledgor hereby agrees that the provisions of Article 8(3) of the Jersey Law are
waived and excluded.
(d) Rights and Remedies Under the Uniform Commercial Code. In the event
that the prompt and complete payment and delivery of the redemption proceeds of
the Debt Securities in accordance with the terms thereof are not paid or
delivered when due, in addition to all other rights and remedies provided for
herein or otherwise available to the Collateral Agent and the Trust, the
Collateral Agent may, and at the direction of the managing trustee of the Trust
shall, exercise all of the rights and remedies of a secured party under the
Uniform Commercial Code (whether or not the Uniform Commercial Code applies to
the Collateral) and all other applicable law (including Jersey Law) with respect
to all or any part of the Collateral.
7. Other Provisions Regarding the Collateral.
-----------------------------------------
Until all obligations of the U.K. Company under terms of the Debt
Securities have been performed in full, the parties hereto covenant and agree as
follows:
(a) No Disposition. The Pledgor covenants and agrees that it will not
sell, assign, transfer, exchange or otherwise dispose of, or grant any option
with respect to, any of the Collateral, nor will it create, incur or permit to
exist any Lien or Transfer Restrictions on or with respect to any of the
Collateral, any interest therein, or any proceeds thereof, other than those
permitted by this Agreement, the ADRs Security and Pledge Agreement and any Lien
created by the Trust.
(b) Further Protections. The Pledgor will pay in a timely fashion all
taxes, assessments, fees or charges of any nature that are imposed in respect of
the Collateral as a result of the Pledgor's ownership thereof or any action or
omission on the part of the Pledgor. The Pledgor will give written notice to
the Trust and the Collateral Agent of, and defend the Collateral against, any
suit, action or proceeding against the Collateral or which could adversely
affect the security interests granted hereunder.
(c) Delay in Enforcement; No Waiver. To the extent consistent with the
Uniform Commercial Code and any applicable law, the Collateral Agent can choose
to delay or not to enforce any of its rights under this Agreement without losing
such rights. If the Collateral Agent chooses not to exercise or enforce any of
its rights, the Pledgor agrees that the Collateral Agent is not waiving the
right to enforce such rights at a later time or any of its other rights. Any
waiver of the Collateral Agent's rights under this Agreement must be in writing.
8. Representations and Warranties.
------------------------------
(a) Representations and Warranties of Pledgor. On a continuing basis
during the term of this Agreement, the Pledgor represents and warrants to the
Collateral Agent and to the Trust as follows:
(i) the Pledgor has full power and authority to execute and deliver this
Agreement and to perform and observe the provisions hereof, except as
performance may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar
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laws now or hereafter in effect relating to creditors' rights, and general
principles of equity (regardless of whether the enforceability of such
performance is considered in a proceeding in equity or at law);
(ii) the execution, delivery and performance of this Agreement by the
Pledgor does not contravene any requirement of law or any material transactional
restriction or material agreement binding on or affecting the Pledgor or any of
its assets;
(iii) this Agreement has been duly and properly executed and delivered by
the Pledgor and constitutes a legal, valid and binding agreement of the Pledgor
enforceable against such Pledgor in accordance with its terms, except as the
enforcement of rights and remedies may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights, and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
(iv) no Transfer Restrictions (other than the requirement of the Pledgor to
cause the security interest created hereunder to be registered with the
Companies Office Registry in the United Kingdom and any Transfer Restrictions
created by this Agreement or the Trust) exist with respect to or otherwise apply
to the assignment of, or transfer by the Pledgor of possession of, any items of
Collateral to the Collateral Agent hereunder, or the subsequent sale or transfer
of such items of Collateral by the Collateral Agent pursuant to the terms
hereof;
(v) except for the rights of the Trust and of the Collateral Agent on the
Trust's behalf established under this Agreement the Pledgor has all rights,
title and interest in and to the Collateral pledged by it under this Agreement,
free and clear of all Liens (other than the Lien created by this Agreement) and
Transfer Restrictions (other than Transfer Restrictions created by this
Agreement), and has the right to pledge such Collateral as provided in this
Agreement;
(vi) the Pledgor is not in default under any agreement by which the
Collateral may be bound and no litigation, arbitration or administrative
proceeding of which the Pledgor has received notice or service of process is
pending, which default, litigation, arbitration or administrative proceeding is
material to the Collateral in the context of this Agreement;
(vii) upon (x) the execution of this Agreement and (y) Delivery of the
Collateral to the Collateral Agent hereunder, the Collateral Agent, as agent of
and on behalf of, the Trust, will obtain a valid first priority, perfected and
enforceable security interest in, and a first lien on, such Collateral subject
to no other Lien; and none of such Collateral is or shall be pledged by the
Pledgor as collateral for any other purpose; and
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<PAGE>
(viii) the Pledgor is presently solvent under its laws of incorporation
and is able to pay, and is paying, its debts as they come due, and anticipates
that it will continue to be able to pay its debts as they come due for the
foreseeable future.
(b) Representations and Warranties of Collateral Agent. On a continuing
basis during the term of this Agreement, the Collateral Agent represents and
warrants to the Pledgor and to the Trust as follows:
(i) the Collateral Agent is a banking corporation, duly incorporated,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to enter into, and
perform its obligations under, this Agreement;
(ii) the execution, delivery and performance by the Collateral Agent of
this Agreement have been duly authorized by all necessary corporate action on
the part of the Collateral Agent (no action by the shareholders of the
Collateral Agent being required) and do not and will not violate, contravene or
constitute a default under any provision of applicable law or regulation or of
the charter or by-laws of the Collateral Agent or of any material agreement,
judgment, injunction, order, decree or other instrument binding upon the
Collateral Agent; and
(iii) this Agreement has been duly and properly executed and delivered by
the Collateral Agent and constitutes a legal, valid and binding agreement of the
Collateral Agent enforceable against the Collateral Agent in accordance with its
terms, except as the enforcement of rights and remedies may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights, and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
9. The Collateral Agent.
--------------------
(a) Appointment of Collateral Agent. The Trust hereby appoints and
designates the Collateral Agent as its agent and custodian for the purposes set
forth herein, and the Collateral Agent does hereby accept such appointment under
the terms and conditions set forth herein.
(b) Duties of Collateral Agent. The Collateral Agent undertakes to perform
only such duties as are expressly set forth herein. The duties and
responsibilities of the Collateral Agent hereunder shall be determined solely by
the express provisions of this Agreement and no other or further duties or
responsibilities shall be implied.
(c) Compensation. For its services in performing its duties set forth
herein, the Collateral Agent shall receive such compensation as may be agreed to
separately by the parties hereto.
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(d) Reliance. Subject to the limitations, covenants and provisions hereof,
the Collateral Agent may rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon the face of any note,
notice, resolution, consent, certificate, affidavit, letter, telegram,
statement, order or other document furnished to it hereunder by the Trust or the
Pledgor and believed by it in good faith to be genuine and to have been signed
or presented by the proper party or parties, and shall have no responsibility
for determining the accuracy thereof.
(e) Liability of Collateral Agent. Neither the Collateral Agent nor any of
its directors, officers or employees shall be liable for any action taken or
omitted by it hereunder except in the case of its wilful misfeasance, bad faith,
gross negligence or reckless disregard of its duties hereunder or its failure to
use reasonable care with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession. The Collateral Agent may
consult with counsel of its own choice, including in-house counsel, and shall
have full and complete authorization and protection for any action taken or
omitted by it hereunder in good faith and in accordance with the opinion of such
counsel. The Collateral Agent shall not be liable with respect to any action
taken, suffered or omitted by it in good faith (i) reasonably believed by it to
be authorized or within the discretion or rights or powers conferred on it by
this Agreement or (ii) in accordance with any direction or request of the
Trustees. In no event shall the Collateral Agent be personally liable for any
taxes or other governmental charges imposed upon or in respect of (i) the
Collateral or (ii) the income or other distributions thereon. Except as
specifically provided herein, the Collateral Agent shall not be responsible for
the validity, sufficiency, collectability or marketability of any Collateral
Delivered to or held by it hereunder or for the validity or sufficiency of the
Lien (or the priority thereof) on the Collateral purported to be created hereby.
In no event shall the Collateral Agent be liable for punitive, exemplary,
indirect or consequential damages. Except as specifically set forth herein or
contemplated hereby, the Collateral Agent shall have no duty (i) to see to any
recording, filing or depositing of this Agreement or any agreement referred to
herein or therein or any financing statement or continuation statement
evidencing a security interest, or to see to the maintenance of any such
recording or filing or depositing or to any re-recording, refiling or
redepositing of any thereof, (ii) to see to the maintenance of any insurance or
(iii) to see to the payment or discharge of any tax, assessment, or other
governmental charge or any lien or encumbrance of any kind owing with respect
to, assessed or levied against, any part of the Collateral. The Collateral Agent
shall not be accountable for the use or application by the Trust of any of the
proceeds of the Collateral.
(f) Risk of Funds. No provision of this Agreement shall require the
Collateral Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(g) Use of Sub-Agents or Attorneys. The Collateral Agent may perform any
duties hereunder either directly or by or through financial intermediaries,
agents or attorneys, provided that the Collateral Agent shall remain liable to
fulfill all of such duties to the same extent, and with the same protections, as
if the Collateral Agent was performing them itself.
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(h) Recitals and Statements. The Collateral Agent shall not be responsible
for the correctness of the recitals and statements herein which are made by the
Trust and the Pledgor or for any statement or certificate delivered by the
Pledgor pursuant hereto.
(i) Knowledge. The Collateral Agent shall not be deemed to have knowledge
of any Event of Default, unless and until a Responsible Officer of the
Collateral Agent shall have actual knowledge thereof or shall have received
written notice thereof.
(j) Merger. Any corporation or association into which the Collateral Agent
may be converted or merged, or with which it may be consolidated, or any
corporation or association resulting from any such conversion, merger, or
consolidation to which it is a party, shall be and become a successor Collateral
Agent hereunder and vested with all of the title to the Collateral and all of
the powers, discretions, immunities, privileges and other matters as was its
predecessor without, the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, provided that
such corporation or association meets the requirements set forth in Section
9(m)(2) hereof and in the Trust Agreement.
(k) Resignation of Collateral Agent. The Collateral Agent may resign and
be discharged from its duties or obligations hereunder by giving sixty (60)
days' prior notice in writing of such resignation to the Trust and the Pledgor;
provided, however, that except as expressly provided in the last sentence of
this Section 9(k), the Collateral Agent shall continue to act as Collateral
Agent hereunder until a successor Collateral Agent has been appointed as
provided herein and shall have accepted such appointment. Such resignation
shall take effect upon the appointment of a successor Collateral Agent by the
Trust. If, within 30 days after notice by the Collateral Agent to the Trust and
the Pledgor of the Collateral Agent's resignation, no successor Collateral Agent
shall have been appointed and accepted the duties of the Collateral Agent as
provided herein, the Collateral Agent may apply to a court of competent
jurisdiction for the appointment of a successor Collateral Agent.
(l) Removal. The Collateral Agent may be removed at any time by an
instrument or concurrent instruments in writing delivered to the Collateral
Agent and to the Pledgor and signed by the Trust.
(m) Appointment of Successor.
------------------------
(1) If the Collateral Agent hereunder shall resign or be removed, or
be dissolved or shall be in the course of dissolution or liquidation
or otherwise become incapable of action hereunder, or if it shall be
taken under the control of any public officer or officers or of a
receiver appointed by a court, a successor may be appointed by the
Trust by an instrument or concurrent instruments in writing signed by
the Trust or by its attorneys in fact fully authorized. A copy of
such instrument or concurrent instruments shall be sent by registered
mail to the Pledgor.
(2) Every such temporary or permanent successor Collateral Agent
appointed pursuant to the provisions hereof shall be a trust company
or bank in good
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standing, having a reported capital and surplus of not less than
$100,000,000 and capable of holding the Collateral in the State of New
York, if there be such an institution willing, qualified and able to
accept the duties of the Collateral Agent hereunder upon customary
terms.
(n) Acceptance by Successor. Every temporary or permanent successor
Collateral Agent appointed hereunder shall execute, acknowledge and deliver to
its predecessor and also to the Pledgor an instrument in writing accepting such
appointment hereunder, whereupon such successor, without any further act, deed
or conveyance, shall become fully vested with all the estates, properties,
rights, powers, duties and obligations of its predecessors. Such predecessor
shall, nevertheless, on the written request of its successor or the Pledgor,
execute and deliver an instrument transferring to such successor all the
estates, properties, rights and powers of such predecessor hereunder. Every
predecessor Collateral Agent shall deliver all Collateral held by it as the
Collateral Agent hereunder to its successor. Should any instrument in writing
from the Pledgor be required by a successor Collateral Agent for more fully and
certainly vesting in such successor the estates, properties, rights, powers,
duties and obligations hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, at the request of
the temporary or permanent successor Collateral Agent, be forthwith executed,
acknowledged and delivered by the Pledgor.
10. Miscellaneous.
-------------
(a) Amendments, Etc. Any amendment or modification of any provision of
this Agreement shall be in writing and expressly approved in writing by the
parties hereto. Any terms and conditions of this Agreement may be waived in
writing at any time by the party or parties entitled to the benefits of such
terms and conditions. Any waiver shall be effective only for the specific
purpose for which given and for the specific time period, if any, contemplated
therein. A waiver of any of the terms and conditions of, or rights under, this
Agreement on one occasion shall not constitute a waiver of the other terms and
conditions of, or rights under, this Agreement, or of such terms and conditions
or rights on any other occasion.
(b) Notices and Other Communications. All notices and other communications
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
9(b)):
Pledgor: Carlotta (UK) Company
One Silk Street
London EC2Y8HQ
Telecopier: 44-171-456-2222
Attention: Company Secretary
Collateral Agent: The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Joseph Ernst
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Telephone: (212) 815-5732
Telecopier: (212) 815-5999
Trust: c/o Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19715
Attention: Donald J. Puglisi
Telephone: (302) 738-6680
Telecopier: (302) 738-7210
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 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).
(c) Waivers. No failure or delay by any party hereto in exercising any
rights, power or privilege hereunder shall operate as a waiver thereof.
(d) Non-Assignment. No party hereto shall have the right to assign their
rights or obligations hereunder to any other person without the prior written
consent of the other parties.
(e) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HERETO HEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR
BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH
PARTY HERETO HEREBY ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THE PROVISIONS
OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE OTHER PARTIES
HERETO HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT
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AND ANY DOCUMENT RELATED THERETO. EACH PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
THE OTHER PARTIES HERETO TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY
JURY.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE; PROVIDED, HOWEVER, THAT TO THE
EXTENT NECESSARY TO ENSURE THAT THE SECURITY INTEREST CREATED HEREIN IS
ENFORCEABLE UNDER JERSEY LAW, THE PARTIES HERETO AGREE THAT THIS AGREEMENT SHALL
BE GOVERNED BY THE PROVISIONS OF THE JERSEY PREFERENCE SHARES AND THE PROVISIONS
OF JERSEY LAW AND THE COLLATERAL AGENT ON BEHALF OF THE TRUST SHALL HAVE ALL OF
THE RIGHTS TO WHICH A SECURED PARTY IS ENTITLED UNDER SUCH LAW.
(g) Headings. The headings herein are for the convenience of reference
only and shall not affect the meaning or construction of any provision hereof.
(h) Entire Agreement. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed for
all purposes an original, but all such counterparts shall constitute but one and
the same instrument.
(j) Force Majeure. None of the Pledgor, the Collateral Agent or the Trust
shall be responsible for delays or failures in performance resulting from acts
beyond its control. Such acts shall include but not be limited to acts of God,
strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, power failures, computer viruses, earthquakes
or other disasters.
(k) Binding Effect. This Agreement shall be binding upon the respective
parties hereto and their respective successors and assigns. All the covenants
and agreements herein contained by or on behalf of the Pledgor and the
Collateral Agent shall be enforceable by and inure to the benefit of the Trust
and its successors and assigns.
(l) Separability. To the extent permitted by law, the unenforceability or
invalidity of any provision or provisions of this Agreement shall not render any
other provision or provisions herein contained unenforceable or invalid.
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11. Termination of Agreement. This Agreement and the rights hereby granted by
the Pledgor in the Collateral shall cease, terminate and be void upon
fulfillment of all of the obligations of the U.K. Company under the Debt
Securities, and the Pledgor shall have no further liability hereunder upon such
termination.
12. Application of Bankruptcy Code. The parties hereto acknowledge and agree
that the Collateral Agent is a "financial institution" within the meaning of
Section 101(22) of the Bankruptcy Code and is acting hereunder as agent and
custodian for the Trust and that the Trust is a "customer" of the Collateral
Agent within the meaning of said Section 101(22).
13. No Personal Liability of Trustees. By executing and delivering this
Agreement, none of the Trustees assumes, and in no event shall incur, any
personal liability hereunder, other than as expressly provided by law.
14. Limitation on Liability. Notwithstanding anything to the contrary
contained herein, no recourse shall be had, whether by levy or execution or
otherwise, for any claim based on this Agreement or in respect hereof against
any incorporator, shareholder or affiliate of the 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 Agreement by the Trust.
Notwithstanding anything to the contrary contained herein, nothing in this
Section shall be construed to affect or limit the Pledgor's obligations under
this Agreement.
15. Consent to Jurisdiction. The Pledgor agrees that any legal suit, action or
proceeding brought by the Trust or the Collateral Agent or by any person
controlling the Trust or the Collateral Agent, 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 Pledgor has
appointed 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 Trust or the Collateral Agent and
expressly accepts the jurisdiction of any such court in respect of such action.
Such appointment shall be irrevocable unless and until this Agreement is
terminated or 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 Pledgor and such appointment shall have been accepted by such successor
authorized agent. The Pledgor represents and warrants that CT Corporation has
agreed to act as said agent for service of process, and the Pledgor 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
17
<PAGE>
upon the Authorized Agent and written notice of such service to the Pledgor
shall be deemed, in every respect, effective service of process upon such
Pledgor.
16. Judgement Currency. The Pledgor hereby agrees to indemnify the Trust and
the Collateral Agent against any loss incurred by the Trust or the Collateral
Agent 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 Trust or the Collateral Agent would
have been able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such Trust or Collateral Agent had utilized such amount of
Judgment Currency to purchase U.S. dollars as promptly as practicable upon the
receipt by the Trust or the Collateral Agent thereof. The foregoing indemnity
shall constitute a separate and independent obligation of the Pledgor and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include and allowance for any
customary or reasonable or premium and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
17. Waiver of Immunities. To the extent that the Pledgor 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 Pledgor 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.
18
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or representatives thereunto duly
authorized as of the day and year first above written.
CARLOTTA (UK) COMPANY
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Collateral Agent
By: _______________________________
Name:
Title:
ANZ EXCHANGEABLE PREFERRED TRUST
By: _______________________________
Donald J. Puglisi, as Managing Trustee
19
<PAGE>
Exhibit A
---------
NOTICE OF ASSIGNMENT
====================
(Carlotta (UK) Company)
=======================
September __, 1998
To: Carlotta (Investments) Limited
Dear Sirs,
We hereby give you notice that by an agreement dated September __, 1998,
Carlotta (UK) Company ("UK Company") has pledged, assigned, granted and conveyed
unto The Bank of New York ("Collateral Agent") as agent and custodian for and on
behalf of the ANZ Exchangeable Preferred Trust all of the UK Company's right,
title and interest in and to all of the preference shares in the capital of your
company (the "Jersey Preference Shares") now registered in UK Company's name.
UK Company hereby instructs you:
1. To disclose to the Collateral Agent without any reference to or further
authority from UK Company and without any inquiry from you as to the purpose
or justification for such disclosure, such information relating to the Jersey
Preference Shares as the Collateral Agent may from time to time, at its
discretion, request you to disclose to it;
2. That UK Company may not exercise any of its rights or agree to any variation,
amendment or other dealings in or with UK Company's rights in respect of the
Jersey Preference Shares, without the prior written consent of the Collateral
Agent;
3. To pay all present and future moneys due by you in respect of the Jersey
Preference Shares to the Collateral Agent, in accordance with the written
instructions of the Collateral Agent given from time to time; and
4. These instructions may not be revoked or varied without the Collateral
Agent's prior written consent.
Please acknowledge receipt of this notice and confirm your agreement to the
above instructions, by signing the attached copy of this notice.
Yours faithfully
For and on behalf of
Carlotta (UK) Company
Director
1
<PAGE>
Exhibit 99(k)(6)
TRUST REIMBURSEMENT AGREEMENT
This TRUST REIMBURSEMENT AGREEMENT dated as of this ____ day of September,
1998, between Merrill Lynch & Co., Inc. ("Merrill Lynch") and ANZ Exchangeable
Preferred Trust, a business trust created pursuant to the Business Trust Act of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
(Sections 3801 et seq.)) (such trust and the trustees thereof acting in their
capacities as such being referred to herein as the "Trust").
WHEREAS, the Trust has filed with the Securities and Exchange Commission a
registration statement on Form N-2 (File Nos. 333-58751 and 811-08865) and Pre-
Effective Amendments Nos. 1, 2 and 3 thereto in connection with the offering
(the "Offering") of up to __ of its Trust Units Exchangeable for Preference
Shares(SM) ("TrUEPrS(SM)") pursuant to a Purchase Agreement, dated as of
September __, 1998, among the Trust, Australia and New Zealand Banking Group
Limited and the Underwriters named therein (the "Purchase Agreement"); and
WHEREAS, the Trust desires to make provisions for the payment of certain
initial expenses of the Trust relating to the Offering.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement and other valuable consideration, the parties agree
as follows:
1. DEFINITIONS. Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the Purchase Agreement.
2. AGREEMENT TO REIMBURSE OFFERING EXPENSES. On the Closing Date, the
Trust agrees to reimburse Merrill Lynch for all fees and expenses set forth in
Schedule I hereto.
3. NO ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. No party to this
Agreement may assign its rights or delegate its duties hereunder without the
prior written consent of the other party. Nothing herein, express or implied,
shall give to any person, other than the parties hereto and their respective
successors and assigns, any benefit of any legal or equitable right, remedy or
claim hereunder.
4. 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.
_________________________
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
5. NOTICES. All notices 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 5):
Merrill Lynch: Merrill Lynch & Co., Inc.
North Tower
New York, New York 10281-1329
Telecopier: (212) 449-3150
Attention: Douglas W. Squires
The Trust: ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19715
Telecopier: (302) 738-7210
Attention: Donald J. Puglisi
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).
6. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
7. 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.
8. 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.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives the date first above written.
ANZ EXCHANGEABLE PREFERRED TRUST
By: ___________________________________
Name: Donald J. Puglisi
Title: Managing Trustee
MERRILL LYNCH & CO., INC.
By: ___________________________________
Authorized Signatory
<PAGE>
SCHEDULE I
(Up-Front Expenses)
Item Amount
- ---- ------
SEC Registration Fee $169,625.00
NASD Fee 30,500.00
-----------
Total 200,125.00
===========
<PAGE>
Exhibit 99(k)(7)
TRUST EXPENSE AGREEMENT
This TRUST EXPENSE AGREEMENT dated as of this ____ day of September, 1998,
between Carlotta (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 (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 Second Amended
and Restated Trust Agreement dated as of September __, 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.
2. AGREEMENT TO PAY EXPENSES. On each Dividend Payment Date, the Jersey
Holding Company shall pay to the Trust in immediately available funds the
Quarterly Amount (as defined in the Expense and Indemnity Agreement) of the
Trust for the quarterly dividend period commencing on such Dividend Payment
Date. Such payments shall be deposited and held in an expense account maintained
by the Administrator 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").
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 continue in
effect until the dissolution of the Trust in accordance with Section 7.03 of the
Trust Agreement. 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).
<PAGE>
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
101 Barclay Street
New York, New York 10286
Telecopier: (212) 839-5999
Attention: Hugo Gindraux
The Jersey Holding
Company: Carlotta (Holdings) Limited
Templar House, Don Road
St. Helier, Jersey JE4 8WH
British Channel Islands
Telecopier: 44-1534-500-450
Attention: Company Secretary
Except as otherwise specifically provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be deemed to
have been duly given if either (i) personally delivered (including delivery by
courier service or by Federal Express or any other nationally recognized
overnight delivery service for next day delivery) to the offices set forth
above, in which case they shall be deemed received on the first Business Day by
which delivery shall have been made to said offices, (ii) transmitted by any
standard form of telecommunication to the offices set forth above, in which case
they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when
2
<PAGE>
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. 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,
3
<PAGE>
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.
4
<PAGE>
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:
CARLOTTA (HOLDINGS) LIMITED
By:___________________________________
Name:
Title:
5
<PAGE>
Exhibit 99(k)(8)
EXPENSE AND INDEMNITY AGREEMENT
This EXPENSE AND INDEMNITY AGREEMENT, dated this ____ day of September,
1998, among ANZ Exchangeable Preferred Trust, a Delaware business trust (such
trust and the trustees thereof acting in their capacities as such being referred
to herein as the "Trust"), Carlotta (UK) Company, a special purpose company
incorporated with unlimited liability under the laws of England and Wales (the
"U.K. Company"), Carlotta (Holdings) Limited, a special purpose limited
liability company incorporated under the laws of, and domiciled in, Jersey,
Channel Islands (the "Jersey Holding Company"), Fidus Trust Company Limited,
acting in its capacity as sole trustee for the time being of the trust known as
Carlotta Charitable Trust, a Jersey, Channel Islands trust (such trust and the
trustee thereof acting in its capacity as such being referred to herein as the
"Jersey Charitable Trust"), Carlotta (Investments) Limited, a special purpose
limited liability company incorporated under the laws of, and domiciled in,
Jersey, Channel Islands (the "Jersey Subsidiary"), and ANZMB Limited, a company
incorporated under the laws of, and domiciled in, England and Wales (the "ANZ
Affiliate") and an affiliate of Australia and New Zealand Banking Group Limited
("ANZ").
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.)) and governed by the Second Amended and
Restated Trust Agreement dated as of September __, 1998 (the "Trust Agreement");
WHEREAS, the U.K. Company has entered into an agreement, dated as of
September __, 1998 (the "Jersey Subsidiary Subscription Agreement"), with the
Jersey Subsidiary pursuant to which (a) the U.K. Company has agreed to subscribe
for all the ordinary shares (the "Jersey Subsidiary Ordinary Shares"), nominal
shares, if any, and preference shares of the Jersey Subsidiary and (b) the U.K.
Company has agreed to pay all the expenses of the Jersey Subsidiary;
WHEREAS, the U.K. Company has entered into a security and pledge agreement,
dated September __, 1998 (the "Jersey Preference Shares Security and Pledge
Agreement"), with the Trust and The Bank of New York, as collateral agent (the
"Collateral Agent"), and the Jersey Subsidiary has entered into a security and
pledge agreement, dated September ___, 1998 (the "ADRs Security and Pledge
Agreement"), with the U.K. Company, the Trust and the Collateral Agent, pursuant
to which, among other things, the U.K. Company has agreed to pay certain
expenses of the Collateral Agent;
WHEREAS, the U.K. Company has entered into an agreement, dated as of
September __, 1998 (the "U.K. Company Subscription Agreement"), with the Jersey
Holding Company pursuant to which (a) the Jersey Holding Company has agreed to
subscribe for all the ordinary shares of the U.K. Company for which dividends
are payable quarterly thereon and (b) the U.K. Company has agreed by way of such
quarterly dividends or otherwise to pay certain expenses of the Jersey Holding
Company, the Jersey Charitable Trust and (pursuant to the Trust Expense
Agreement referred to herein) the Trust;
<PAGE>
WHEREAS, the Jersey Holding Company has entered into (i) an agreement,
dated as of September __, 1998 (the "Jersey Holding Company Subscription
Agreement"), with the Jersey Charitable Trust pursuant to which (a) the Jersey
Charitable Trust has agreed to subscribe for all the ordinary shares of the
Jersey Holding Company for which dividends are payable quarterly thereon and (b)
the Jersey Holding Company has agreed by way of such dividends or otherwise to
pay certain expenses of the Jersey Charitable Trust; and (ii) an agreement,
dated as of September __, 1998 (the "Jersey Subsidiary Ordinary Share Purchase
Agreement") with the U.K. Company, pursuant to which the Jersey Holding Company
has agreed to purchase the Jersey Subsidiary Ordinary Shares from the U.K.
Company on certain Exchange Dates;
WHEREAS, the Jersey Holding Company has entered into an agreement, dated as
of September __, 1998 (the "Trust Expense Agreement" and, collectively with the
Jersey Subsidiary Subscription Agreement, the Jersey Preference Shares Security
and Pledge Agreement, the ADRs Security and Pledge Agreement, the U.K. Company
Subscription Agreement, the Jersey Subsidiary Ordinary Share Purchase Agreement
and the Jersey Holding Company Subscription Agreement, the "Expense
Agreements"), with The Bank of New York ("BONY"), acting in its capacity as
administrator, custodian and paying agent of the Trust, pursuant to which the
Jersey Holding Company has agreed to pay certain expenses of the Trust to BONY
on a quarterly basis in consideration for the Trust's purchase of Debt
Securities from the Jersey Holding Company's wholly-owned subsidiary, the U.K.
Company;
WHEREAS, each of the U.K. Company, the Jersey Subsidiary, the Jersey
Holding Company and the Jersey Charitable Trust has entered into management
agreements with Volaw Trust and Corporate Services Limited ("Volaw Trust
Company"), each dated the date hereof (collectively, the "Management
Agreements") to ensure, among other things, that each quarter (i) the U.K.
Company pays the expenses of the Jersey Subsidiary for such quarter, (ii)
dividends are declared and paid by the U.K. Company on its ordinary shares to
the Jersey Holding Company in an amount sufficient to pay the expenses of the
Jersey Holding Company for such quarter, the dividends on the ordinary shares of
the Jersey Holding Company (in an amount sufficient to pay the expenses of the
Jersey Charitable Trust for such quarter), and the expenses of the Trust for
such quarter, and (iii) dividends are declared and paid by the Jersey Holding
Company on its ordinary shares to the Jersey Charitable Trust in an amount
sufficient to pay the expenses of the Jersey Charitable Trust for such quarter;
WHEREAS, the Trust, the U.K. Company, the Jersey Subsidiary, the Jersey
Holding Company and the Jersey Charitable Trust (the "Indemnified Parties" and,
excluding the Trust, the "Non-U.S. Indemnified Parties") desire to enter into an
agreement that will provide them assurance that they will have the ability to
make full payment of the fees and expenses and certain indemnification expenses
in each case for which they have liability under the Expense Agreements or the
Other Agreements (as defined herein) and the ANZ Affiliate desires to enter into
such an agreement and to provide such assurance in consideration for the payment
of the Indemnity Fee (as defined herein) and the Additional Indemnity Fee (as
defined herein) provided for herein; and
WHEREAS, the directors of the Non-U.S. Indemnified Parties have requested
that they be indemnified against all and any claims, demands, costs, expenses,
damages and liabilities of every kind (other than such that may arise from
willful misfeasance, bad faith, gross negligence
2
<PAGE>
or reckless disregard of their duties) and the ANZ Affiliate considers it
appropriate that such directors of the Non-U.S. Indemnified Parties shall not
suffer personal liability as a result of holding the aforesaid offices, save in
respect of willful misfeasance, bad faith, gross negligence or reckless
disregard of their duties.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, 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. For purposes
of this Agreement, the term "expenses" shall be deemed to include any amounts
payable pursuant to any agreement referred to in Sections 2 and 3 hereof.
2. AGREEMENT TO PAY EXPENSES UNDER THE EXPENSE AGREEMENTS. If any
Indemnified Party does not have sufficient funds (excluding the Trust Estate,
the ADSs evidenced by ADRs (including any distributions thereon or proceeds
therefrom), the Debt Securities (including any distributions thereon or proceeds
therefrom), the Jersey Preference Shares (including any distributions thereon or
proceeds therefrom) and any payments pursuant to the Income Entitlements to the
extent needed to pay interest on the Debt Securities) to pay any fee or expense
payable by such Indemnified Party under this Agreement or any of the Expense
Agreements to which it is a party, then the ANZ Affiliate hereby agrees to pay
such fee or expense or to pay sufficient funds to such Indemnified Party to
enable it to pay such fee or expense, and shall take any other actions required
to hold such Indemnified Party harmless from such fee or expense. The ANZ
Affiliate's obligations under this Section shall survive the Exchange Date but
only with respect to any fees or expenses arising, or relating to periods
ending, on or prior to such date.
3. AGREEMENT TO PAY FEES AND EXPENSES UNDER OTHER AGREEMENTS. If any
Indemnified Party does not have sufficient funds (excluding the Trust Estate,
the ADSs evidenced by ADRs (including any distributions thereon or proceeds
therefrom), the Debt Securities (including any distributions thereon or proceeds
therefrom), the Jersey Preference Shares (including any distributions thereon or
proceeds therefrom) and any payments pursuant to the Income Entitlements to the
extent needed to pay interest on the Debt Securities) to pay any fee or expense,
including without limitation any indemnification expense, payable by such
Indemnified Party under this Agreement or any of the Other Agreements to which
it is a party, then the ANZ Affiliate hereby agrees to pay such fee or expense
or to pay sufficient funds to such Indemnified Party to enable it to pay such
fee or expense, and shall take any other actions required to hold such
Indemnified Party harmless from such fee or expense. "Other Agreements" means
the Administration Agreement, the Custodian Agreement, the Paying Agent
Agreement, the Trust Agreement, the Debt Securities Subscription Agreement, the
Jersey Preference Shares Subscription Agreement, dated as of September __, 1998,
between the U.K. Company and the Jersey Subsidiary, the ADSs Subscription
Agreement, dated as of September __, 1998, between the Jersey Subsidiary and
ANZ, the Management Agreements, the Undertaking relating to the Jersey Holding
Company, dated as of September __, 1998, the Undertaking relating to the U.K.
Company, dated as of September __, 1998, and the Undertaking relating to the
Jersey Subsidiary, dated as of September __, 1998. The ANZ Affiliate's
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obligations under this Section shall survive the Exchange Date but only with
respect to any fees or expense arising, or relating to periods ending, on or
prior to such date.
4. MANNER OF PAYMENT. Any payment hereunder by the ANZ Affiliate shall be
made in New York Clearing House (next-day) funds no later than five Business
Days after the receipt by the ANZ Affiliate, pursuant to Section 6 hereof, of
written notice of any claim for any payment due under Section 2 or 3 hereof.
5. EXPENSE PAYMENTS AND INDEMNITY FEE. No later than 3 Business Days nor
more than 10 Business Days prior to a Dividend Payment Date, (a) the Trust and
each of the Non-U.S. Indemnified Parties (other than the U.K. Company) shall
provide, or direct the Administrator or Volaw Trust Company, respectively, to
provide to the U.K. Company and the ANZ Affiliate, and (b) the U.K. Company
shall provide, or direct Volaw Trust Company to provide, to the ANZ Affiliate:
(i) an estimate of its expenses to be paid during the period from such Dividend
Payment Date to but excluding the next succeeding Dividend Payment Date (the
"Estimated Expenses") and its expected cash balance as of such Dividend Payment
Date (the "Cash Balance") (excluding, for purposes of both Estimated Expenses
and Cash Balance, any cash received pursuant to Section 2 or 3 hereof and, in
the case of the Trust and the U.K. Company, the Trust Estate and any interest
payments on the Debt Securities, respectively) and (ii) an accounting of its
expenditures during the three-month period ending on such Dividend Payment Date,
including estimated expenditures for the remainder of such period.
Notwithstanding the foregoing, any Distributable Profits Amount (as defined
below) shall not be taken into account in the calculation of the Estimated
Expenses and Cash Balance of the U.K. Company.
The U.K. Company shall determine, or direct Volaw Trust Company to
determine, an amount of payment to each Indemnified Party equal to the product
of the Estimated Expenses of such Indemnified Party and a number established by
the ANZ Affiliate from time to time in its absolute discretion (which may be
equal to or greater than 1) minus the Cash Balance of such Indemnified Party
(each, a "Quarterly Amount"). Upon receipt in full of each Income Entitlement
from the Distribution Trust and the payment in full of the interest due on the
Debt Securities, the U.K. Company shall (i) keep the Quarterly Amount of Jersey
Subsidiary to pay the expenses of the Jersey Subsidiary pursuant to the Jersey
Subsidiary Subscription Agreement, (ii) pay to the Jersey Holding Company a
dividend on the ordinary shares of the U.K. Company owned by the Jersey Holding
Company in an amount equal to the Quarterly Amount for each of the Trust, the
Jersey Holding Company and the Jersey Charitable Trust pursuant to the U.K.
Company Subscription Agreement, (iii) keep an amount equal to its own Quarterly
Amount and any additional amounts, if any, necessary to enable the U.K. Company
to pay the dividend to the Jersey Holding Company, referred to in clause (ii)
above, under applicable law (the "Distributable Profits Amount"), and (iv) pay
the remainder, if any, of the Income Entitlement to the ANZ Affiliate as an
indemnity fee (the "Indemnity Fee") in consideration of the agreements of the
ANZ Affiliate contained in Sections 2 and 3 hereof. Upon receipt of payment
pursuant to clause (ii) above, the Jersey Holding Company shall pay a dividend
to the Jersey Charitable Trust in the amount of the Quarterly Amount of the
Jersey Charitable Trust pursuant to the Jersey Holding Company Subscription
Agreement. The Jersey Holding Company is also obligated to pay to the Trust the
Quarterly Amount of the Trust pursuant to the Trust Expense Agreement.
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In addition, as soon as practicable after the occurrence of any Exchange
Event and the satisfaction or discharge of all of their other debts and
obligations and in any event prior to their dissolution or winding up, each
Indemnified Party (other than the Jersey Charitable Trust) shall pay, and the
Trust shall cause the Administrator to pay, to the ANZ Affiliate a fee (each,
an "Additional Indemnity Fee") equal to the full amount of any cash or other
property remaining in its possession in consideration of the agreements of the
ANZ Affiliate contained in Sections 2 and 3 hereof.
Any Indemnity Fee or Additional Indemnity Fee payable to the ANZ Affiliate
in cash pursuant to this Section 5 shall be paid in United States dollars in New
York Clearing House (next-day) funds to such account in New York as the ANZ
Affiliate may from time to time specify for this purpose.
6. NOTICE OF RECEIPT OF CLAIM. Each Indemnified Party shall give notice
to, or cause notice to be given to, the ANZ Affiliate in writing of any claim
for payment under Section 2 or 3 hereof or any threatened claim that may require
such payment immediately upon such Indemnified Party acquiring knowledge
thereof. Such written notice to the ANZ Affiliate shall be accompanied by any
demand, bill, invoice or other communication received from any third party that
gives rise or may give rise to such payments.
7. STATEMENTS AND REPORTS. An Indemnified Party shall collect and keep
safe all demands, bills, invoices or other written communications received from
third parties in connection with any claim for payment under Section 2 or 3
hereof and shall prepare and maintain adequate books and records showing all
receipts and disbursements of funds in connection therewith. The ANZ Affiliate
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.
8. INDEMNITY OF DIRECTORS. The ANZ Affiliate hereby covenants for the
benefit of every director for the time being of each of the Non-U.S. Indemnified
Parties that in consideration of their accepting appointment to the aforesaid
offices and agreeing to act in those capacities during whatever period that they
hold such offices, it will indemnify each and every one of them and hold them
harmless from every liability that they shall sustain, suffer or incur by reason
of their doing or omitting to do, actually or purportedly in their capacities
aforesaid, at any time during the continuance in existence of the applicable
Non-U.S. Indemnified Parties, any act or thing in or about the business and
affairs of the applicable Non-U.S. Indemnified Parties, not being an act or
thing the doing or omission of which entails willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties of such directors. The
foregoing covenant shall have effect to the maximum extent that is consistent
with any relevant laws and with public policy and, to the extent that it is
capable of having partial effect only it shall be read down so far as is
necessary to allow it to have that partial effect. The foregoing covenant shall
endure without limitation as to time in relation to any act or omission
occurring during the period that the said directors shall hold their offices
aforesaid including any liability arising during or following the winding-up and
dissolution of the Non-U.S. Indemnified Parties. Nothing in this section shall
have the effect or shall be construed as having the effect (i) of permitting the
ANZ Affiliate to impose upon any director indemnified under this section any
direction or instruction with respect to the discharge of that person's duties
as a director, or (ii) requiring any director indemnified under this section
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to observe any direction or instruction that the ANZ Affiliate may purport to
impose upon such person.
9. SUBROGATION. The ANZ Affiliate shall be subrogated to all rights, if any, of
the Indemnified Parties against the applicable other parties to the agreements
referred to in Sections 2 and 3 or the directors of the Non-U.S. Indemnified
Parties in respect of any amounts paid to the Trust or any of the Non-U.S.
Indemnified Parties by the ANZ Affiliate under this Agreement; provided,
however, that the ANZ Affiliate shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Agreement, unless and
until all amounts due and payable under this Agreement have been paid and no
TrUEPrS are outstanding. If any amount shall be paid to the ANZ Affiliate in
violation of the preceding sentence, the ANZ Affiliate agrees to hold such
amount in trust for the Trust or the applicable Non-U.S. Indemnified Party, as
the case may be, and to pay over such amount to the Trust or the applicable Non-
U.S. Indemnified Party, as the case may be.
10. TERMINATION. This Agreement shall continue in effect until the
dissolution of the Trust in accordance with Section 7.03 of the Trust Agreement
and the dissolution of the other Indemnified Parties. Each of the Indemnified
Parties shall obtain the prior written consent of the ANZ Affiliate in the event
such Indemnified Party (i) amends or supplements the Trust Agreement, any
Expense Agreements or any Other Agreement, and such amendment or supplement
materially and adversely affects the payment obligations of the ANZ Affiliate
hereunder or would cause an Exchange Event to occur, (ii) enters into any
agreement in substitution for any Expense Agreement or any Other Agreement and
such substitute agreement materially and adversely affects the payment
obligations of the ANZ Affiliate hereunder or would cause an Exchange Event to
occur or (iii) settles, or consents to the settlement of, any litigation or
other proceeding. If any Indemnified Party takes any action for which the prior
consent of the ANZ Affiliate is required as set forth in this Section 10 without
such prior written consent, then from and after the date of any such action, the
ANZ Affiliate shall have no obligation to make any payments under Section 2 or 3
hereof to such Indemnified Party, no Quarterly Amounts shall thereafter be
payable to or retained by such Indemnified Party and the Indemnity Fee shall
thereafter be calculated without regard to the Quarterly Amounts that would have
otherwise been payable to such Indemnified Party.
11. NO ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. No party to this
Agreement may assign its rights or delegate its duties hereunder without the
prior written consent of the other parties, except that (i) the Trust may
delegate any and all duties hereunder to the Administrator to the extent
permitted by law and (ii) the trustee of the Jersey Charitable Trust may assign
its rights and duties to any continuing or successor trustee in accordance with
its Declaration of Trust and to the extent permitted by law. Except (i) in
respect of the indemnity given in Section 8 above in favor of the directors of
the Non-U.S. Indemnified Parties and (ii) as provided in the last sentence of
Section 12, nothing herein, expressed or implied, shall give to any person,
other than the parties hereto and their respective successors and permitted
assigns, any benefit of any legal or equitable right, remedy or claim hereunder.
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12. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. No modification, alteration,
amendment or supplement of this Agreement shall be valid unless the
modification, alteration, amendment or supplement is in writing and is signed by
all parties to this Agreement. In addition, except in the case of modifications,
alterations, amendments or supplements for the purpose of curing any formal
defect, omission, inconsistency or ambiguity herein or which would not adversely
affect the Administrator, Custodian, Paying Agent and Collateral Agent, the
parties hereto shall not enter into any modifications, alterations, amendments
or supplements without the prior written approval or consent of any of such
entities that would be adversely affected.
13. 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 13):
The Trust: ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19715
Telecopier: 302-738-7210
Attention: Donald J. Puglisi
The ANZ Affiliate: ANZMB Limited
Minerva House
Montague Close, London SE1 9DH
Telecopier: 44-171-378-2524
Attention: Company Secretary
The U.K. Company: Carlotta (UK) Company
One Silk Street
London EC2Y 8HQ
Telecopier: 44-171-456-2222
Attention: Company Secretary
The Jersey Charitable Trust: Fidus Trust Company Limited
as sole trustee of Carlotta Charitable Trust
Templar House, Don Road
St. Helier, Jersey JE4 8WH
British Channel Islands
Telecopier: 44-1534-500-450
Attention: Company Secretary
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The Jersey Holding Company: Carlotta (Holdings) Limited
Templar House, Don Road
St. Helier, Jersey JE4 8WH
British Channel Islands
Telecopier: 44-1534-500-450
Attention: Company Secretary
The Jersey Subsidiary: Carlotta (Investments) Limited
Templar House, Don Road
St. Helier, Jersey JE4 8WH
British Channel Islands
Telecopier: 44-1534-500-450
Attention: Company Secretary
Except as otherwise specifically provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be deemed to
have been duly given if either (i) personally delivered (including delivery by
courier service or by Federal Express or any other nationally recognized
overnight delivery service for next day delivery) to the offices set forth
above, in which case they shall be deemed received on the first Business Day by
which delivery shall have been made to said offices, (ii) transmitted by any
standard form of telecommunication to the offices set forth above, in which case
they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case delivery shall be deemed to
have been received on the first Business Day on which such acknowledgment is
refused).
In addition, each party hereto agrees to provide notice to each of the
other parties hereto at the addresses and in the manner set forth above to the
extent such party has knowledge of the occurrence of an Exchange Event or an
event which with the passage of time would constitute an Exchange Event.
14. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns and the parties referred to in Section 8 hereof.
15. CONSENT TO JURISDICTION. Each party agrees that any legal suit,
action or proceeding brought by any party or by any person controlling a party,
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
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proceeding. The ANZ Affiliate has appointed ANZ's Executive Vice President,
Americas, acting through its office at 1177 Avenue of the Americas, 6th Floor,
New York, New York 10036 as its authorized agent and each Non-U.S. Indemnified
Party has appointed CT Corporation System as its authorized agent, in each case
upon which process may be instituted in any State or Federal court in the
Borough of Manhattan, City and State of New York by a party 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 relevant party and such appointment shall
have been accepted by such successor authorized agent. Each party represents
and warrants that its authorized agent 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 an
authorized agent and written notice of such service to the relevant party shall
be deemed, in every respect, effective service of process upon such party.
16. JUDGMENT CURRENCY. The ANZ Affiliate, the U.K. Company, the Jersey
Holding Company, the Jersey Charitable Trust and the Jersey Subsidiary hereby
agree to indemnify any of the parties hereto against any loss incurred by such
party 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 such party would have been able to
purchase U.S. dollars with the amount of the Judgment Currency actually received
by such party had the party 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
each of the ANZ Affiliate, the U.K. Company, the Jersey Holding Company, the
Jersey Charitable Trust and the Jersey Subsidiary 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.
17. WAIVER OF IMMUNITIES. To the extent that any of the ANZ Affiliate,
the U.K. Company, the Jersey Holding Company, the Jersey Charitable Trust and
the Jersey Subsidiary 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,
such party 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.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
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STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY
WITHIN SUCH STATE.
19. 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.
ANZ EXCHANGEABLE PREFERRED TRUST
By:_________________________
Donald J. Puglisi, as Managing Trustee
ANZMB LIMITED
By:_________________________
Name:
Title:
CARLOTTA (UK) COMPANY
By:_________________________
Name:
Title:
CARLOTTA (HOLDINGS) LIMITED
By:_________________________
Name:
Title:
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CARLOTTA (INVESTMENTS) LIMITED
By:_________________________
Name:
Title:
FIDUS TRUST COMPANY LIMITED, as sole trustee
of CARLOTTA CHARITABLE TRUST
By:_________________________
Name:
Title:
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EXHIBIT (k)(9)
DEBT SECURITIES SUBSCRIPTION AGREEMENT
THIS DEBT SECURITIES SUBSCRIPTION AGREEMENT dated as of this ____ day of
September, 1998, by and between Carlotta (UK) Company, a special purpose
unlimited company incorporated under the laws of England and Wales (the "U.K.
Company"), and ANZ Exchangeable Preferred Trust, a business trust created
pursuant to the Business Trust Act of the State of Delaware (Chapter 38, Title
12, of the Delaware Code, 12 Del. C. (Sections 3801 et seq.)) (such trust and
the trustees thereof acting in their capacities as such being referred to herein
as the "Purchaser").
WHEREAS, the Purchaser has filed with the Securities and Exchange
Commission a registration statement on Form N-2 (File Nos. 333-58751 and 811-
08865) and Pre-Effective Amendments Nos. 1, 2 and 3 thereto contemplating the
offering (the "Offering") of up to__________ of its Trust Units Exchangeable for
Preference Shares(SM) ("TrUEPrS(SM)"), the terms of which contemplate that the
Purchaser will distribute to the Holders of TrUEPrS, upon the occurrence of an
Exchange Event, either (i) American Depositary Receipts ("ADRs") evidencing, for
each TrUEPrS, one American Depositary Share ("ADS") representing four fully paid
non-cumulative preference shares, liquidation preference US$6.25 per share (the
"ANZ Preference Shares"), issued by Australia and New Zealand Banking Group
Limited or (ii) cash in an amount of US$25 per TrUEPrS, plus the accrued
dividend distributions thereon for the current quarterly dividend period;
WHEREAS, the Purchaser desires to use the proceeds of the Offering to
purchase initially from the U.K. Company US$_________ aggregate principal amount
of Mandatorily Redeemable Debt Securities due 2047 (the "Initial Debt
Securities") issued by the U.K. Company;
WHEREAS, the U.K. Company desires to sell the Initial Debt Securities to
the Purchaser; and
WHEREAS, the U.K. Company desires to provide for the further issuance of up
to US $__________ aggregate principal amount of Mandatorily Redeemable Debt
Securities due 2047 (the "Additional Debt Securities" and together with the
Initial Debt Securities, the "Debt Securities") if and only to the extent that
the Underwriters exercise their over-allotment option with respect to TrUEPrS
granted by the Purchaser pursuant to the Purchase Agreement (the "Over-Allotment
Option").
- ----------------------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. PURCHASE AND SALE OF THE DEBT SECURITIES.
1.1 SALE AND ISSUANCE OF THE DEBT SECURITIES. (a) Subject to the
terms and conditions of this Agreement, including payment by the U.K.
Company of the facility fee referred to in Section 5, the U.K. Company
agrees to sell to the Purchaser, and the Purchaser agrees to purchase from
the U.K. Company, the Initial Debt Securities issued by the U.K. Company,
at a purchase price equal to the aggregate principal amount thereof.
(b) Subject to the terms and conditions of this Agreement, on
each date on which TrUEPrS are purchased pursuant to the Over-Allotment
Option, the U.K. Company agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the U.K. Company, an aggregate principal amount of
Additional Debt Securities equal to the proceeds of such TrUEPrs.
1.2 CLOSING. The purchase and sale of the Initial Debt Securities
shall take place at the offices of Brown & Wood llp, One World Trade
Center, New York, New York 10048 at the Closing Time (as defined in the
Purchase Agreement) (such time and date of payment being herein called the
"Initial Closing Date").
The closing of any issuance of Additional Debt Securities shall take
place at the above-referenced offices on the Date of Delivery of the
TrUEPrS the purchase of which causes such issuance (each such date,
together with the Initial Closing Date, a "Closing Date").
On each Closing Date, the U.K. Company shall deliver to the Purchaser
a certificate representing the Debt Securities purchased by the Purchaser.
Payment for the Debt Securities shall be made on the applicable Closing
Date by the Purchaser by wire transfer in immediately available funds, of
an amount equal to the purchase price of the Debt Securities purchased by
the Purchaser.
1.3 CONDITIONS TO CLOSING. The obligations of the Purchaser
hereunder on each Closing Date are subject to the accuracy of the
representations and warranties of the U.K. Company contained in Section 2
hereof or in certificates of any officer of the U.K. Company, delivered
pursuant to the provisions hereof, to the performance by the U.K. Company
of its obligations hereunder, to the condition that the related purchase of
TrUEPrS pursuant to the Purchase Agreement shall have been consummated and
to the following further conditions:
(a) Opinion of Counsel for the U.K. Company. On each Closing
Date, the Purchaser shall have received the favorable opinion, dated
as of the applicable
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Closing Date, of Linklaters & Paines, U.K. Counsel for the U.K.
Company, substantially in the form delivered pursuant to the Purchase
Agreement.
(b) Opinion of Counsel for the Jersey Subsidiary. On each
Closing Date, the Purchaser shall have received the favorable opinion,
dated as of the applicable Closing Date, of Michael Voisin & Co.
Jersey Counsel for the Jersey Subsidiary, substantially in the form
delivered pursuant to the Purchase Agreement.
(c) U.K. Company Officers' Certificate. On each Closing Date,
the Purchaser shall have received a certificate of executive officers
of the U.K. Company, dated as of the applicable Closing Date, to the
effect that (i) the representations and warranties in Section 2
hereof are true and correct and (ii) the U.K. Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the applicable Closing Date.
(d) Listing. On the Initial Closing Date, the Debt Securities
shall have been approved for listing on the Luxembourg Stock Exchange.
2. REPRESENTATIONS AND WARRANTIES OF THE U.K. COMPANY. On each Closing
Date, the U.K. Company hereby represents and warrants to the Purchaser that:
2.1 The U.K. Company has been duly organized and is validly existing
as a special purpose unlimited company in good standing under the laws of
the United Kingdom and has corporate power and authority to own, lease and
operate its properties and to conduct its business and to enter into and
perform its obligations under this Agreement and each of the Jersey
Subsidiary Subscription Agreement, dated September __, 1998, between
the U.K. Company and the Jersey Subsidiary, the U.K. Company Subscription
Agreement, to be dated September __, 1998, between the U.K. Company and the
Jersey Holding Company, the Jersey Subsidiary Ordinary Share Purchase
Agreement, to be dated September __, 1998, between the U.K. Company and the
Jersey Holding Company ("Jersey Ordinary Share Purchase Agreement"), the
Management Agreement and General Administration Agreement, dated to be
September __, 1998, between the U.K. Company and Volaw Trust and Corporate
Services Limited, the Jersey Preference Shares Security and Pledge
Agreement, the ADRs Security and Pledge Agreement, the U.K. Company
Reimbursement Agreement, the Expense and Indemnity Agreement and the other
agreements or instruments to which the U.K. Company is a party (the
"Fundamental U.K. Company Agreements"); and the U.K. Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business;
2.2 The U.K. Company has one subsidiary, Carlotta (Investments)
Limited (the "Jersey Subsidiary"); the Jersey Subsidiary has been duly
organized and is validly existing as a corporation in good standing under
the laws of Jersey, the Channel Islands, has corporate power and authority
to own, lease and operate its properties and to conduct its business and is
duly qualified as a foreign corporation to transact business and is in
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good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business; all of the issued and outstanding capital stock of the Jersey
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the U.K. Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
and none of the outstanding shares of capital stock of the Jersey
Subsidiary was issued in violation of any preemptive or similar rights
arising by operation of law, or under the charter or by-laws thereof, or
under any agreement or instrument to which the Jersey Subsidiary is a
party;
2.3 The Debt Securities have been duly authorized and, when issued
and delivered against payment of the purchase price therefor, will be duly
executed and delivered by the U.K. Company to the Purchaser and will
constitute valid and binding obligations of the U.K. Company entitled to
the benefits and enforceable against the U.K. Company in accordance with
their terms, except as the enforcement of rights and remedies may be
limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws now or hereafter in effect relating to creditors' rights, and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
2.4 This Agreement has been duly and properly executed and delivered
by the U.K. Company and constitutes a legal, valid and binding agreement of
the U.K. Company enforceable against the U.K. Company in accordance with
its terms, except as the enforcement of rights and remedies may be limited
by bankruptcy, insolvency, reorganization, moratorium, or other similar
laws now or hereafter in effect relating to creditors' rights, and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
2.5 Neither the U.K. Company nor the Jersey Subsidiary is in
violation of its memorandum or articles of association or other
organizational document or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it is a party or by which it may
be bound, or to which any of its property or assets is subject
(collectively, "Agreements and Instruments"); the execution, delivery and
performance of this Agreement and the Fundamental U.K. Company Agreements
and the consummation of the transactions contemplated herein and therein
and compliance by the U.K. Company with its obligations thereunder have
been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or a Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the U.K.
Company or the Jersey Subsidiary pursuant to the Agreements and
Instruments; nor will such action result in any violation of the provisions
of the respective memorandum and articles of association, charter, by-laws
or other organizational documents of the U.K. Company or the Jersey
Subsidiary, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality, stock exchange authority or court, domestic or
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foreign, having jurisdiction over the U.K. Company or the Jersey Subsidiary
or any of their assets or properties (other than any state securities or
"blue sky" law, statute, rule or regulation, as to which no representation
or warranty is made); as used herein, a "Repayment Event" means any event
or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the U.K. Company or the Jersey Subsidiary;
2.6 There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the U.K. Company, threatened, against
or affecting the U.K. Company or the Jersey Subsidiary;
2.7 No declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency or any stock exchange authority,
domestic or foreign, is necessary or required for the execution, delivery
or performance by the U.K. Company of this Agreement, the Fundamental U.K.
Company Agreements or the consummation by the U.K. Company of the
transactions contemplated herein and therein, except such as have been
already obtained or as may be required under the Securities Act of 1933, as
amended (the "Securities Act"), or the rules and regulations promulgated
thereunder or state securities laws;
2.8 Neither the U.K. Company nor the Jersey Subsidiary is in
violation of any law, ordinance, governmental rule or regulation or
administrative or court order or decree to which the U.K. Company or the
Jersey Subsidiary is subject; the U.K. Company and the Jersey Subsidiary
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, and are in
compliance with the terms and conditions of all such Governmental Licenses;
all of the Governmental Licenses are valid and in full force and effect;
and neither the U.K. Company nor the Jersey Subsidiary has received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses;
2.9 Except for the rights of the Purchaser, the Collateral Agent and
the Jersey Subsidiary under the Jersey Preference Shares Security and
Pledge Agreement and the ADRs Security and Pledge Agreement, the U.K.
Company has all right, title and interest in and to the Jersey Preference
Shares and the ADSs representing the ANZ Preference Shares pledged by it
under the Jersey Preference Shares Security and Pledge Agreement and the
ADRs Security and Pledge Agreement, respectively, free and clear of all
Liens (as defined in each of the Jersey Preference Shares Security and
Pledge Agreement and the ADRs Security and Pledge Agreement) (other than
the Lien created by such agreements and any Lien created by the Purchaser)
and Transfer Restrictions (as defined in each of the Jersey Preference
Shares Security and Pledge Agreement and the ADRs Security and Pledge
Agreement) (other than Transfer Restrictions created by such agreements and
Transfer Restrictions created by the Purchaser), and has the right, power
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and authority to pledge and has legally and validly pledged such Jersey
Preference Shares as provided in the Jersey Preference Shares Security and
Pledge Agreement and validly hypothecated its security interest in the ADSs
representing the ANZ Preference Shares to the Purchaser as provided in the
ADRs Security and Pledge Agreement;
2.10 No stamp duty or similar tax or duty is payable under applicable
laws or regulations of the United Kingdom in connection with the creation,
issuance, delivery, of, or the performance by the U.K. Company under, the
Debt Securities or with respect to the execution, delivery and performance
by the parties thereto of this Agreement and the Fundamental U.K. Company
Agreements;
2.11 Payments made by the U.K. Company under the Debt Securities will
not be subject under the current laws of the United Kingdom or any
political subdivision thereof to any withholdings or similar charges for
or on account of taxation;
2.12 (a) The choice of the laws of the State of New York as the
governing law of this Agreement and each of the Fundamental U.K. Company
Agreements (other than as set forth in the Jersey Preference Shares
Security and Pledge Agreement) and (b) the choice of the laws of Jersey,
the Channel Islands as the governing law of the Jersey Preference Shares
Security and Pledge Agreement (to the extent necessary to ensure that the
security interest created thereunder is enforceable under Jersey law), in
each case, is a valid choice of law under the laws of the United Kingdom
and any political subdivision thereof and courts of the United Kingdom
should honor the applicable choice of law; the U.K. Company has the power
to submit and pursuant to this Agreement and the Fundamental U.K. Company
Agreements has legally, validly, effectively and irrevocably submitted to
the non-exclusive personal jurisdiction of the State or Federal court in
the Borough of Manhattan, City and State of New York in any suit, action or
proceeding against it arising out of or related to any of such agreements
or with respect to its obligations, liabilities or any other matter arising
out of or in connection with the sale of the Debt Securities by the U.K.
Company to the Purchaser under this Agreement and has validly and
irrevocably waived any objection to the venue of a proceeding in any such
court; and has the power to designate, appoint and empower and pursuant to
Section 6.7 of this Agreement has legally, validly, effectively and
irrevocably designated, appointed and empowered an agent for service of
process in any suit or proceeding based on or arising under this Agreement
in any federal or state court in the State of New York;
2.13 Any final judgment for a fixed or readily calculable sum of
money rendered by any court of the State of New York or of the United
States located in the State of New York having jurisdiction under its own
domestic laws in respect of any suit, action or proceeding against the U.K.
Company based upon any instruments or agreements entered into for the
consummation of the transactions contemplated herein would be declared
enforceable against the U.K. Company by the courts of the United Kingdom
without reexamination, review of the merits of the cause of action in
respect of which the original judgment was given or relitigation of the
matters adjudicated upon or payment of any stamp, registration or similar
tax or duty, provided that (A) the judgment is consistent with public
policy in the United Kingdom and any relevant political subdivision, (B)
the judgment was not given or obtained by fraud or in a manner contrary
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to natural justice, (C) the judgment was not based on a clear mistake of
law or fact, (D) the judgment was not directly or indirectly for the
payment of taxes or other charges of a like nature or of a fine or other
penalty, and (E) the judgment is for a fixed sum; and the U.K. Company is
not aware of any reason why the enforcement in the United Kingdom of such a
judgment in respect of any of the instruments or agreements executed for
consummation of the transactions contemplated herein would be contrary to
public policy in the United Kingdom or any political subdivision thereof;
and
2.14 It is not necessary under the laws of the United Kingdom or any
political subdivision thereof or authority or agency therein in order to
enable the Purchaser to enforce its rights under the Debt Securities, this
Agreement and each of the Fundamental U.K. Company Agreements, as the case
may be, that it should, as a result solely of its holding of the Debt
Securities, be licensed, qualified or otherwise entitled to carry on
business in the United Kingdom or any political subdivision thereof or
authority or agency therein; the Debt Securities, this Agreement and each
of the Fundamental U.K. Company Agreements are in proper legal form under
the laws of the United Kingdom and any political subdivision thereof or
authority or agency therein for the enforcement thereof against the U.K.
Company therein; and it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of the Debt Securities or any
of this Agreement and each of the Fundamental U.K. Company Agreements in
the United Kingdom or any political subdivision thereof or authority or
agency therein that any of them be filed or recorded or enrolled with any
court, authority or agency in, or that any stamp, registration or similar
taxes or duties be paid to any court, authority or agency of the United
Kingdom or any political subdivision thereof.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. On each Closing Date,
the Purchaser hereby represents and warrants to the U.K. Company that:
3.1 The Purchaser is a validly existing business trust under the
Delaware Act and has full power and authority to execute and deliver this
Agreement and to perform and observe the provisions hereof, except as
performance may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights, and general principles of equity (regardless of whether
the enforceability of such performance is considered in a proceeding in
equity or at law);
3.2 The execution, delivery and performance of this Agreement by the
Purchaser do not contravene any requirement of law or any material
transactional restriction or material agreement binding on or affecting the
Purchaser or any of its assets;
3.3 This Agreement has been duly and properly executed and delivered
by the Purchaser and constitutes a legal, valid and binding agreement of
the Purchaser enforceable against the Purchaser in accordance with its
terms, except as the enforcement of rights and remedies may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
now or hereafter in effect relating to creditors' rights, and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
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3.4 No declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
execution, delivery or performance by the Purchaser of this Agreement or
the consummation by the Purchaser of the transactions contemplated herein
and therein, except such as have been already obtained or as may be
required under the Securities Act or the rules and regulations promulgated
thereunder or state securities laws;
3.5 This Agreement is made by the U.K. Company with the Purchaser in
reliance upon the Purchaser's representation to the U.K. Company, which by
the Purchaser's execution of this Agreement the Purchaser hereby confirms,
that the Debt Securities are being acquired for investment for the
Purchaser's own account, and not as a nominee or agent and not with a view
to the resale or distribution by the Purchaser of any of the Debt
Securities, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the Debt
Securities, in either case in violation of any securities registration
requirement under applicable law, but subject nevertheless, to any
requirement of law that the disposition of its property shall at all times
be within its control. By executing this Agreement, the Purchaser further
represents that the Purchaser does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of
the Debt Securities;
3.6 The Purchaser acknowledges that it can bear the economic risk of
the investment for an indefinite period of time and has such knowledge and
experience in financial and business matters (and particularly in the
business in which the U.K. Company operates) as to be capable of evaluating
the merits and risks of the investment in the Debt Securities. The
Purchaser is an "accredited investor" as defined in Rule 501(a) of
Regulation D under the Securities Act of 1933, as amended (the "Securities
Act");
3.7 The Purchaser understands that the Debt Securities are
characterized as "restricted securities" under the United States securities
laws inasmuch as they are being acquired from the U.K. Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such Debt Securities may be resold without
registration under the Securities Act only in certain circumstances. In
this connection, the Purchaser represents that it understands the resale
limitations imposed by the Securities Act and is generally familiar with
the existing resale limitations imposed by Rule 144;
3.8 The Purchaser further agrees not to make any disposition directly
or indirectly of all or any portion of the Debt Securities unless and
until:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(b) The Purchaser shall have furnished the U.K. Company with an
opinion of counsel, reasonably satisfactory to the U.K. Company, that
such
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disposition will not require registration of such Debt Securities
under the Securities Act.
Notwithstanding the provisions of subsections (a) and (b) above, no
such registration statement or opinion of counsel shall be necessary for a
transfer by the Purchaser to any affiliate of the Purchaser, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if it were the original Purchaser hereunder; and
3.9 It is understood that the certificate evidencing the Debt
Securities may bear either or both of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for
sale, pledged or hypothecated in the absence of a registration
statement in effect with respect to the securities under such Act or
an opinion of counsel reasonably satisfactory to the Trustees of ANZ
Exchangeable Preferred Trust that such registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
The Purchaser and the U.K. Company agree that the legend contained in
the paragraph (a) above shall be removed at the holder's request when it is
no longer necessary to ensure compliance with federal securities laws.
4. COVENANTS OF THE U.K. COMPANY.
The U.K. Company agrees that, during the term of this Agreement and
for so long as the TrUEPrS remain outstanding, the U.K. Company will not
(i) sell or otherwise transfer the ordinary shares of the Jersey Subsidiary
owned by it to any person (other than pursuant to, and in accordance with
the terms of, the Jersey Ordinary Share Purchase Agreement) or (ii)
commence a proceeding for an order that the Jersey Subsidiary be wound up
or for the appointment of a provisional liquidator, liquidator,
administrator, controller or similar official in respect of the Jersey
Subsidary or all or subtantially all of its property and it will (x) use
its best efforts to prevent the issuance of any other order to wind up the
Jersey Subsidiary or any other appointment of a provisional liquidator,
liquidator, administrator, controller or similar official in respect of the
Jersey Subsidiary or all or substantially all of its property and (y)
exercise its voting rights to ensure that:
(a) the Jersey Subsidiary will not change its Memorandum and
Articles of Association (unless such change has been consented
to by the record holders of more than 50% of the TrUEPrs or, in
the opinion of competent legal counsel selected by the Trust,
such change would not have a material adverse impact on the
rights of the holders of the
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TrUEPrS and, in either case, will not cause an Exchange Event to
occur);
(b) the Jersey Subsidiary will not change its business purpose (as
specified in its Memorandum and Articles of Association); and
(c) (i) the Jersey Subsidiary will not commence a proceeding for an
order that the Jersey Subsidiary be wound up or for the
appointment of a provisional liquidator, liquidator,
administrator, controller or similar official in respect of the
Jersey Subsidiary or all or substantially all of its property;
and (ii) the Jersey Subsidiary will use its best efforts to
prevent the issuance of any other order that the Jersey
Subsidiary be wound up or any appointment of a provisional
liquidator, liquidator, administrator, controller or similar
official in respect of the Jersey Subsidiary or all or
substantially all of its property.
5. PAYMENT OF FACILITY FEE.
The U.K. Company hereby agrees to pay to the Purchaser on the Initial
Closing Date a facility fee in the amount of US $630,000 in connection with the
payment of the organizational costs of the Purchaser and the costs associated
with the registration of the TrUEPrS and the Offering.
6. MISCELLANEOUS.
6.1 CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the meanings set forth in the Second Amended and Restated Trust
Agreement, to be dated as of September __, 1998, among the Trustees of the
Purchaser, ML IBK Positions, Inc., as Sponsor, and the Holders of TrUEPrS.
6.2 ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. No amendment or
modification of this Agreement shall be valid unless the amendment or
modification is in writing and is signed by all parties to this Agreement.
6.3 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
6.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
6.5 LIMITATION ON LIABILITY OF THE PURCHASER. Notwithstanding
anything to the contrary contained herein, no recourse shall be had,
whether by levy or execution or otherwise, for any claim based on this
Agreement or in
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respect hereof against any incorporator, shareholder or affiliate of the
Purchaser or the Trustees, the Administrator, the Custodian or the Paying
Agent or any predecessor, successor or affiliate of the Purchaser and of
the aforesaid persons, or any of their assets, or against any principal,
partner, incorporator, shareholder, officer, director, agent or employee of
any of the aforesaid persons, under any rule of law, equitable principle,
statute or constitution, or by the enforcement of any assessment or
penalty, or otherwise, nor shall any of such persons be personally liable
for any such amounts or claims, or liable for any deficiency judgment based
thereon or with respect thereto, and that all such liability of the
aforesaid persons is expressly waived and released as a condition of, and
as consideration for, the execution of this Agreement by the Purchaser.
Notwithstanding the foregoing, it is understood that the Purchaser shall
not be liable for any loss, damages, cost, liability or claim based on this
Agreement or in respect hereof or any expense (including the reasonable
costs of investigation, preparation for and defense of legal and/or
administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements) incurred in connection with any such
loss, damages, cost, liability or claim in an amount in excess of the
amount received by the Purchaser under the Trust Expense Agreement and the
Expense and Indemnity Agreement in connection with such loss, damages,
cost, liability or claim. Notwithstanding anything to the contrary
contained herein, nothing in this Section shall be construed to affect or
limit the Purchaser's obligations under this Agreement.
6.6 LIMITATION ON LIABILITY OF THE U.K. COMPANY. Notwithstanding
anything to the contrary contained herein, no recourse shall be had,
whether by levy or execution or otherwise, for any claim based on this
Agreement or in respect hereof against any incorporator, shareholder,
officer, director, agent or employee of the U.K. Company or any
predecessor, successor or affiliate of the U.K. Company, or any of their
assets, under any rule of law, equitable principle, statute or
constitution, or by the enforcement of any assessment or penalty, or
otherwise, nor shall any of such persons be personally liable for any such
amounts or claims, or liable for any deficiency judgment based thereon or
with respect thereto, and that all such liability of the aforesaid persons
is expressly waived and released as a condition of, and as consideration
for, the execution of this Agreement by the U.K. Company. Notwithstanding
the foregoing, it is understood that the U.K. Company shall not be liable
for any loss, damages, cost, liability or claim based on this Agreement or
in respect hereof or any expense (including the reasonable costs of
investigation, preparation for and defense of legal and/or administrative
proceedings related to a claim against it and reasonable attorneys' fees
and disbursements) incurred in connection with any such loss, damages,
cost, liability or claim in an amount in excess of the amount received by
the U.K. Company under the Expense and Indemnity Agreement in connection
with such loss, damages, cost, liability or claim. Notwithstanding anything
to the contrary contained herein, nothing in this Section shall be
construed to affect or limit the U.K. Company's obligations under this
Agreement.
6.7 CONSENT TO JURISDICTION. The U.K. Company agrees that any legal
suit, action or proceeding brought by the Purchaser or by any person
controlling the Purchaser, arising out of or based upon this Agreement may
be instituted in any State or Federal court in the Borough of Manhattan,
City and State of New York, and, to the
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fullest extent permitted by law, waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the non-exclusive jurisdiction of such court in any
suit, action or proceeding. The U.K. Company has appointed CT Corporation
System as its authorized agent (the "Authorized Agent") upon which process
may be instituted in any State or Federal court in the Borough of
Manhattan, City and State of New York by the Purchaser and expressly
accepts the jurisdiction of any such court in respect of such action. Such
appointment shall be irrevocable unless and until a successor authorized
agent, located or with an office in the Borough of Manhattan, City and
State of New York, shall have been appointed by the U.K. Company and such
appointment shall have been accepted by such successor authorized agent.
The U.K. Company represents and warrants that CT Corporation System has
agreed to act as said agent for service of process, and agrees to take any
and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent
and written notice of such service to the U.K. Company shall be deemed, in
every respect, effective service of process upon the U.K. Company.
Notwithstanding the foregoing, any action based on this Agreement may be
instituted by the Purchaser in any competent court in the United Kingdom.
6.8 JUDGMENT CURRENTCY. The U.K. Company hereby agrees to indemnify
the Purchaser against any loss incurred by the Purchaser as a result of any
judgment or order being given or made for any amount due hereunder and such
judgment or such order being expressed and paid in a curreny (the "Judgment
Currency") other than U.S. dollars and as a result of any variation as
between (i) the rate of exchange at which the U.S. dollar amount is
converted into the Judgment Currency for the purpose of such judgment or
order, and (ii) the rate of exchange at which the Purchaser would have been
able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by the Purchaser had the Purchaser utilized such amount
of Judgment Currency to purchase U.S. dollars as promptly as practicable
upon the receipt thereof. The foregoing indemnity shall constitute a
separate and independent obligation of the U.K. Company and shall continue
in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include an allowance for any
customary or reasonable premium and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
6.9 WAIVER OF IMMUNITIES. To the extent that the U.K. Company or
any of its properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the
grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from set-off or process, from attachment upon or prior to
judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving
of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement, hereby irrevocably and unconditionally, to
the extent permitted by applicable law, waives, and agrees not to plead or
claim, any such immunity and consents to such relief and enforcement.
6.10 NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as
follows (or to such other address for a particular party as shall be
specified by such party in a like notice given pursuant to this Section
5.8):
The Trust:
ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19715
(302) 738-7210
Attention: Donald J. Puglisi
The U.K. Company: Carlotta (UK) Company
One Silk Street
London EC2Y 8HQ
England
Telecopier: 44-171-456-2222
Attention: Company Secretary
Except as otherwise specifically provided herein, all notices and
other communications provided for hereunder shall be in writing and shall
be deemed to have been duly given if either (i) personally delivered
(including delivery by courier service or by Federal Express or any other
nationally recognized overnight delivery service for next day delivery) to
the offices set forth above, in which case they shall be deemed received on
the first Business Day by which delivery shall have been made to said
offices, (ii) transmitted by any standard form of telecommunication to the
offices set forth above, in
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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).
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ANZ EXCHANGEABLE PREFERRED TRUST
By __________________________________
Donald J. Puglisi, as Managing Trustee
CARLOTTA (UK) COMPANY
By ___________________________________
Name:
Title:
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Exhibit 99(k)(10)
ADSs PURCHASE CONTRACT
This ADSs PURCHASE CONTRACT, dated this ____ day of September, 1998,
between ANZ Exchangeable Preferred Trust, a Delaware business trust (such trust
and the trustees thereof acting in their capacities as such being referred to
herein as the "Trust"), and Carlotta (Investments) Limited, a special purpose
limited liability company incorporated under the laws of, and domiciled in,
Jersey, the Channel Islands (the "Jersey Subsidiary").
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.)) and governed by the Second Amended and
Restated Trust Agreement dated as of September __, 1998 (the "Trust Agreement");
WHEREAS, the Trust has filed with the Securities and Exchange Commission a
registration statement on Form N-2 (File Nos. 333-58751 and 811-08865) and Pre-
Effective Amendments Nos. 1, 2 and 3 thereto contemplating the offering (the
"Offering") of up to__________ of its Trust Units Exchangeable for Preference
Shares(SM) ("TrUEPrS(SM)"), the terms of which contemplate that the Trust will
distribute to the Holders of TrUEPrS, upon the occurrence of an Exchange Event,
either (i) American Depositary Receipts ("ADRs") evidencing, for each TrUEPrS,
one American Depositary Share ("ADS") representing four fully paid non-
cumulative preference shares, liquidation preference US$6.25 per share (the "ANZ
Preference Shares"), issued by Australia and New Zealand Banking Group Limited
("ANZ") or (ii) cash in the amount of US$25 per TrUEPrS plus the accrued
dividend distributions thereon for the current quarterly period;
WHEREAS, upon the occurrence of an Exchange Event other than a redemption
or Buy-Back of the ANZ Preference Shares for cash, the Trust desires (a) to use
the cash proceeds payable upon redemption of the Jersey Preference Shares to
purchase the ADSs from the Jersey Subsidiary at a price equal to such cash
proceeds and (b) to thereby discharge the Jersey Subsidiary from its
obligation under the Jersey Preference Shares to pay such cash redemption
proceeds to the Trust;
WHEREAS, upon the occurrence of an Exchange Event other than a redemption
or Buy-Back of the ANZ Preference Shares for cash, the Jersey Subsidiary desires
to sell the ADSs to the Trust as provided in the preceding recital; and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained in this Agreement, the parties hereto agree as follows:
___________________
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
1. DEFINITIONS. Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the Trust Agreement.
2. AGREEMENT FOR THE PURCHASE AND SALE OF ADSs.
2.1 Upon the occurrence of an Exchange Event other than the
redemption or Buy-Back of the ANZ Preference Shares for cash and the
acquisition of the Jersey Preference Shares by the Trust, the Trust hereby
irrevocably and unconditionally (i) directs the Jersey Subsidiary to apply
on the Exchange Date (the "Closing Date") the amount payable to the Trust
upon the redemption of the Jersey Preference Shares (the "Redemption
Amount") to purchase ADSs representing ANZ Preference Shares with an
aggregate stated liquidation preference equal to the aggregate stated
liquidation preference of the Jersey Preference Shares so redeemed (the
"Subject ADSs") and (ii) subject to such application and receipt of the
Subject ADSs, waives any right it would otherwise have to receive the
Purchase Amount in cash pursuant to the terms of the Jersey Preference
Shares;
2.2 In consideration for the application by the Trust of the
Redemption Amount pursuant to Section 2.1 hereof, the Jersey Subsidiary
irrevocably and unconditionally agrees, upon the occurrence of an Exchange
Event other than a redemption or Buy-Back of the ANZ Preference Shares for
cash, to deliver the Subject ADSs to the Trust on the Closing Date; and
2.3 Upon the delivery by the Jersey Subsidiary of the Subject ADSs to
the Trust on the Closing Date, the Trust agrees that the Jersey Subsidiary
shall be automatically discharged from its obligation to pay the Redemption
Amount to the Trust.
3. REPRESENTATIONS AND WARRANTIES OF THE JERSEY SUBSIDIARY. The Jersey
Subsidiary represents and warrants to the Trust as of the date hereof, as of the
Exchange Date and as of the Closing Date, that:
3.1 The Jersey Subsidiary has been duly organized and is validly
existing as a special purpose limited liability company in good standing
under the laws of Jersey, the Channel Islands and has corporate power and
authority to own, lease and operate its properties and to conduct its
business and to enter into and perform its obligations under this Agreement
and each of the Jersey Subsidiary Subscription Agreement, dated September
__, 1998, between the U.K. Company and the Jersey Subsidiary, the ADSs
Subscription Agreement, dated September __, 1998, between the Jersey
Subsidiary and ANZ, the Management, Company Secretarial and General
Administration Agreement, dated September __, 1998, between the Jersey
Subsidiary and Volaw Trust and Corporate Services Limited (the "Jersey
Subsidiary Management Agreement"), the Jersey Preference Shares Security
and Pledge Agreement, the ADRs Security and Pledge Agreement, the Expense
and Indemnity Agreement and the other agreements or instruments to which
the Jersey Subsidiary is a party (the "Fundamental Jersey Subsidiary
Agreements"); and the Jersey Subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such
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qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business;
3.2 This Agreement has been duly and properly executed and delivered
by the Jersey Subsidiary and constitutes a legal, valid and binding
agreement of the Jersey Subsidiary enforceable against the Jersey
Subsidiary in accordance with its terms, except as the enforcement of
rights and remedies may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights, and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
3.3 The Jersey Subsidiary is not in violation of its memorandum or
articles of association or other organizational document or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound, or to which any of its
property or assets is subject (collectively, "Agreements and Instruments");
the execution, delivery and performance of this Agreement and the
Fundamental Jersey Subsidiary Agreements and the consummation of the
transactions contemplated herein and therein and compliance by the Jersey
Subsidiary with its obligations thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or a Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Jersey Subsidiary pursuant
to the Agreements and Instruments; nor will such action result in any
violation of the provisions of the memorandum and articles of association,
charter, by-laws or other organizational documents of the Jersey
Subsidiary, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality, stock exchange authority or court, domestic or foreign,
having jurisdiction over the Jersey Subsidiary or any of its assets or
properties (other than any state securities or "blue sky" law, statute,
rule or regulation, as to which no representation or warranty is made); as
used herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Jersey Subsidiary;
3.4 There is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Jersey Subsidiary, threatened,
against or affecting the Jersey Subsidiary;
3.5 No declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency or any stock exchange authority,
domestic or foreign, is necessary or required for the execution, delivery
or performance by the Jersey Subsidiary of this Agreement, the Fundamental
Jersey Subsidiary Agreements or the consummation by the Jersey
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Subsidiary of the transactions contemplated herein and therein, except such
as have been already obtained or as may be required under the Securities
Act of 1933, as amended (the "Securities Act"), or the rules and
regulations promulgated thereunder or state securities laws;
3.6 The Jersey Subsidiary is not in violation of any law, ordinance,
governmental rule or regulation or administrative or court order or decree
to which the Jersey Subsidiary is subject; the Jersey Subsidiary possesses
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, and is in compliance with the terms and
conditions of all such Governmental Licenses; all of the Governmental
Licenses are valid and in full force and effect; and the Jersey Subsidiary
has not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses;
3.7 Except for the rights of the Trust, the Collateral Agent and the
U.K. Company under the ADRs Security and Pledge Agreement, the Jersey
Subsidiary has all right, title and interest in and to the Subject ADSs,
free and clear of all Liens (as defined in the ADRs Security and Pledge
Agreement) (other than the Lien created by such agreement and any Lien
created by the Trust) and Transfer Restrictions (as defined in the ADRs
Security and Pledge Agreement) (other than Transfer Restrictions created by
such agreement and Transfer Restrictions created by the Trust); and upon
delivery of the Subject ADSs on the Closing Date and payment of the
Redemption Amount therefor as herein contemplated, the Trust will have all
right, title and interest in and to the Subject ADSs purchased by it from
the Jersey Subsidiary, free and clear of all Liens and Transfer
Restrictions (each as defined in the ADRs Security and Pledge Agreement);
3.8 No stamp duty or similar tax or duty is payable under applicable
laws or regulations of Jersey, the Channel Islands in connection with the
sale, transfer and delivery, of, the Subject ADSs, or with respect to the
execution, delivery and performance by the parties hereto of this
Agreement;
3.9 (a) The choice of the laws of the State of New York as the
governing law of this Agreement and each of the Fundamental Jersey
Subsidiary Agreements (other than as set forth in the Jersey Preference
Shares Security and Pledge Agreement and the Jersey Subsidiary Management
Agreement) and (b) the choice of the laws of Jersey, the Channel Islands as
the governing law of the Jersey Preference Shares Security and Pledge
Agreement (to the extent necessary to ensure that the security interest
created thereunder is enforceable under Jersey law) and the Jersey
Subsidiary Management Agreement, in each case, is a valid choice of law
under the laws of Jersey, the Channel Islands or any political subdivision
thereof and courts of Jersey, the Channel Islands should honor the
applicable choice of law; the Jersey Subsidiary has the power to submit and
pursuant to this Agreement and the Fundamental Jersey Subsidiary Agreements
(other than the Jersey Subsidiary Management Agreement) has legally,
validly, effectively and irrevocably submitted to the non-exclusive
personal jurisdiction of the State or Federal court in the Borough of
Manhattan, City and State of New York in any suit, action or proceeding
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<PAGE>
against it arising out of or related to any of such agreements or with
respect to its obligations, liabilities or any other matter arising out of
or in connection with the sale of the Subject ADSs by the Jersey Subsidiary
to the Trust under this Agreement and has validly and irrevocably waived
any objection to the venue of a proceeding in any such court; and has the
power to designate, appoint and empower and pursuant to Section 10 of this
Agreement has legally, validly, effectively and irrevocably designated,
appointed and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement in any federal or state
court in the State of New York;
3.10 Any final judgment for a fixed or readily calculable sum of
money rendered by any court of the State of New York or of the United
States located in the State of New York having jurisdiction under its own
domestic laws in respect of any suit, action or proceeding against the
Jersey Subsidiary based upon any instruments or agreements entered into for
the consummation of the transactions contemplated herein would be declared
enforceable against the Jersey Subsidiary by the courts of Jersey, the
Channel Islands without reexamination, review of the merits of the cause of
action in respect of which the original judgment was given or relitigation
of the matters adjudicated upon or payment of any stamp, registration or
similar tax or duty, provided that (A) the judgment is consistent with
public policy in Jersey, the Channel Islands and any relevant political
subdivision, (B) the judgment was not given or obtained by fraud or in a
manner contrary to natural justice, (C) the judgment was not based on a
clear mistake of law or fact, (D) the judgment was not directly or
indirectly for the payment of taxes or other charges of a like nature or of
a fine or other penalty, and (E) the judgment is for a fixed sum; and the
Jersey Subsidiary is not aware of any reason why the enforcement in Jersey,
the Channel Islands of such a judgment in respect of any of the instruments
or agreements executed for consummation of the transactions contemplated
herein would be contrary to public policy in Jersey, the Channel Islands or
any political subdivision thereof; and
3.11 It is not necessary under the laws of Jersey, the Channel
Islands or any political subdivision thereof or authority or agency therein
in order to enable the Trust to enforce its rights under this Agreement and
each of the Fundamental Jersey Subsidiary Agreements, as the case may be,
that it should, as a result solely of its holding of the ADSs, be licensed,
qualified or otherwise entitled to carry on business in Jersey, the Channel
Islands or any political subdivision thereof or authority or agency
therein; this Agreement and each of the Fundamental Jersey Subsidiary
Agreements are in proper legal form under the laws of Jersey, the Channel
Islands and any political subdivision thereof or authority or agency
therein for the enforcement thereof against the Jersey Subsidiary therein;
and it is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement and each of the Fundamental
Jersey Subsidiary Agreements in Jersey, the Channel Islands or any
political subdivision thereof or authority or agency therein that any of
them be filed or recorded or enrolled with any court, authority or agency
in, or that any stamp, registration or similar taxes or duties be paid to
any court, authority or agency of Jersey, the Channel Islands or any
political subdivision thereof.
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4. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents and
warrants to the Jersey Subsidiary as of the date hereof, as of the Exchange Date
and as of the Closing Date, that:
4.1 The Trust is a validly existing business trust under the Delaware
Act and has full power and authority to execute and deliver this Agreement
and to perform and observe the provisions hereof, except as performance may
be limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws now or hereafter in effect relating to creditors' rights, and
general principles of equity (regardless of whether the enforceability of
such performance is considered in a proceeding in equity or at law);
4.2 The execution, delivery and performance of this Agreement by the
Trust do not contravene any requirement of law or any material
transactional restriction or material agreement binding on or affecting the
Trust or any of its assets;
4.3 This Agreement has been duly and properly executed and delivered
by the Trust and constitutes a legal, valid and binding agreement of the
Trust enforceable against the Trust in accordance with its terms, except as
the enforcement of rights and remedies may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights, and general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
4.4 No declaration or filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
execution, delivery or performance by the Trust of this Agreement or the
consummation by the Trust of the transactions contemplated herein and
therein, except such as have been already obtained or as may be required
under the Securities Act or the rules and regulations promulgated
thereunder or state securities laws; and
4.5 It is understood that the ADRs evidencing the Subject ADSs may
bear either or both of the following legends:
(a) Any legend required by DTC; and
(b) Any legend required by the laws of any other applicable
jurisdiction.
5. TERMINATION. This Agreement shall continue in effect until the
dissolution of the Trust in accordance with Section 7.03 of the Trust Agreement.
6. NO ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. No party to this
Agreement may assign its rights or delegate its duties hereunder without the
prior written consent of the other party, except that the Trust may delegate any
and all duties hereunder to the Administrator to the extent permitted by law.
Nothing herein, expressed or implied, shall give to any person, other than the
parties hereto and their respective successors and permitted assigns, any
benefit of any legal or equitable right, remedy or claim hereunder.
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7. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. No modification, alteration,
amendment or supplement of this Agreement shall be valid unless the
modification, alteration, amendment or supplement is in writing and is signed by
all 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 Trust: ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19715
Telecopier: (302) 738-7210
Attention: Donald J. Puglisi
The Jersey Subsidiary: Carlotta (Investments) Limited
Templar House, Don Road
St. Helier, Jersey JE4 8WH
British Channel Islands
Telecopier: 44-1534-500-450
Attention: Company Secretary
Except as otherwise specifically provided herein, all notices and other
communications provided for hereunder shall be in writing and shall be deemed to
have been duly given if either (i) personally delivered (including delivery by
courier service or by Federal Express or any other nationally recognized
overnight delivery service for next day delivery) to the offices set forth
above, in which case they shall be deemed received on the first Business Day by
which delivery shall have been made to said offices, (ii) transmitted by any
standard form of telecommunication to the offices set forth above, in which case
they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case delivery shall be deemed to
have been received on the first Business Day on which such acknowledgment is
refused).
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 Subsidiary agrees that any legal
suit, action or proceeding brought by any party or by any person controlling a
party, arising out
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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 Subsidiary 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 Trust 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
Subsidiary and such appointment shall have been accepted by such successor
authorized agent. The Jersey Subsidiary 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 Subsidiary shall be deemed, in
every respect, effective service of process upon the Jersey Subsidiary.
11. 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.
12. 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.
ANZ EXCHANGEABLE PREFERRED TRUST
By:_________________________
Donald J. Puglisi, as Managing Trustee
CARLOTTA (INVESTMENTS) LIMITED
By:_________________________
Name:
Title:
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Exhibit 99(K)(11)
DISTRIBUTION TRUST AGREEMENT
of
ANZ DISTRIBUTION TRUST
Dated as of September __, 1998
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
<S> <C>
Page
----
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions.......................................................... 6
ARTICLE II
THE DISTRIBUTION TRUST
Section 2.01. Name.................................................................. 11
Section 2.02. Office of the Delaware Trustee; Principal Place of Business........... 11
Section 2.03. Contribution of Trust Property; Organizational and On-Going Expenses.. 11
Section 2.04. Declaration of Trust.................................................. 12
Section 2.05. Authorization to Enter into Certain Transactions...................... 13
Section 2.06. Assets of Trust....................................................... 15
Section 2.07. Title to Trust Property............................................... 15
ARTICLE III
SECURITIES
Section 3.01. General Provisions Regarding Common Securities........................ 15
Section 3.02. Transfer of Common Securities......................................... 15
ARTICLE IV
PAYMENT ACCOUNTS
Section 4.01. Payment Account....................................................... 16
ARTICLE V
INCOME ENTITLEMENTS
Section 5.01. Income Entitlements................................................... 16
Section 5.02. Payment Procedures.................................................... 17
Section 5.03. Tax Returns and Reports............................................... 17
Section 5.04. Payment of Taxes, Duties, Etc. of the Distribution Trust.............. 18
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
<S> <C>
Section 6.01. Representations and Warranties of the Property Trustee and the
Delaware Trustee............................................................................................ 18
Section 6.02. Representations and Warranties of Depositor................................................... 19
ARTICLE VII
THE DISTRIBUTION TRUSTEES; THE ADMINISTRATORS
Section 7.01. Certain Duties and Responsibilities........................................................... 19
Section 7.02. Certain Notices............................................................................... 22
Section 7.03. Certain Rights of the Distribution Trustees and Administrators................................ 22
Section 7.04. Not Responsible for Recitals.................................................................. 24
Section 7.05. Compensation; Indemnity; Fees................................................................. 24
Section 7.06. Corporate Property Trustee Required; Eligibility of Distribution Trustees and Administrators.. 25
Section 7.07. Co-Distribution Trustees and Separate Trustee................................................. 26
Section 7.08. Resignation and Removal; Appointment of Successor............................................. 27
Section 7.09. Acceptance of Appointment by Successor........................................................ 28
Section 7.10. Merger, Conversion, Consolidation or Succession to Business................................... 29
Section 7.11. Preferential Collection of Claims Against Depositor........................................... 29
Section 7.12. Trustee May File Proofs of Claim.............................................................. 29
Section 7.13. Reports by Property Trustee................................................................... 30
Section 7.14. Number of Distribution Trustees............................................................... 30
Section 7.15. Delegation of Power........................................................................... 31
Section 7.16. Appointment of Administrators................................................................. 31
ARTICLE VIII
DISSOLUTION
Section 8.01. Dissolution Upon Expiration Date.............................................................. 32
Section 8.02. Early Termination............................................................................. 32
Section 8.03. Termination................................................................................... 32
</TABLE>
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<TABLE>
<CAPTION>
ARTICLE IX
MISCELLANEOUS PROVISIONS
<S> <C>
Section 9.01. Amendment..................................................................................... 33
Section 9.02. Separability.................................................................................. 33
Section 9.03. Governing Law................................................................................. 34
Section 9.04. Income Entitlements Due on Non-Business Day.. ................................................ 35
Section 9.05. Successors.................................................................................... 35
Section 9.06. Headings...................................................................................... 35
Section 9.07. Reports, Notices and Demands.................................................................. 35
Section 9.08. Counterparts.................................................................................. 36
</TABLE>
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Distribution Trust Agreement, dated as of _____ __, 1998, among (i)
Australia and New Zealand Banking Group Limited (including any successors
or assigns, the "Depositor"), (ii) Wilmington Trust Company, a Delaware
banking corporation, as property trustee (in such capacity, and including
its successors in interest in such capacity or any successor appointed as
provided herein, the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank"), (iii)
Wilmington Trust Company, a Delaware banking corporation, as Delaware
trustee (in such capacity, and including any successors in interest in such
capacity or any successor Delaware Trustee appointed as provided herein,
the "Delaware Trustee," and together with the Property Trustee, the
"Distribution Trustees"), (iv) the individuals selected by the Depositor
from time to time in accordance with Section 7.16 hereof to act as
administrators with respect to the Distribution Trust (in such capacities
and not in their individual capacities, the "Administrators"), (v)
Carlotta (UK) Company, a special purpose company incorporated with
unlimited liability under the laws of England and Wales (the "U.K.
Company") and (vi) ANZ Funds Pty Ltd., a company organized under the laws
of the Commonwealth of Australia (the "ANZ Australian Affiliate").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the ANZ Exchangeable Preferred Trust (the "Issuing Trust")
intends to offer (the "Offering") Trust Units Exchangeable for Preference
Shares(SM) (the "TrUEPrS(SM)") and use the proceeds of the Offering to
purchase Mandatorily Redeemable Debt Securities due 2047 (the "Debt
Securities"), with an aggregate principal amount equal to such proceeds,
issued by the U.K. Company.
WHEREAS, the U.K. Company intends to use the proceeds from the sale of
the Debt Securities to purchase at a price equal to their liquidation
preference fully paid non-dividend paying preference shares, liquidation
preference US$25 per share (the" Jersey Preference Shares"), issued by
Carlotta (Investments) Limited, an exempt company with limited liability
incorporated under the laws of, and domiciled in, Jersey, Channel Islands
(the "Jersey Subsidiary").
WHEREAS, the Jersey Subsidiary intends to use the proceeds from the
sale of the Jersey Preference Shares to purchase up to _________ American
Depositary Shares ("ADSs"), each representing four fully paid non-
cumulative preference shares, with a liquidation preference of US$6.25 per
share (the "Preference Shares"), of the Depositor at a price per ADS equal
to the aggregate liquidation preference of the four Preference Shares
represented thereby.
---------------------------------
(SM) Service mark of Merrill Lynch & Co., Inc.
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<PAGE>
WHEREAS, the Depositor hereby establishes a business trust wholly-
owned by the Depositor (the "Distribution Trust") under the Delaware
Business Trust Act pursuant to this Distribution Trust Agreement and the
Certificate of Trust of the Distribution Trust previously filed with the
Secretary of State of the State of Delaware on September __, 1998 (the
"Certificate of Trust"), which Certificate of Trust is attached hereto as
Exhibit A.
WHEREAS, the Depositor intends to use all the proceeds from the sale
of the Preference Shares to make one or more capital contributions, and may
make other capital contributions to the Distribution Trust.
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
by this Distribution Trust Agreement provide for, among other things, (i)
the use of the Depositor's capital contributions to make the Distribution
Loan (as defined herein) in an aggregate principal amount equal to the
aggregate amount of such capital contributions to one or more ANZ Borrowers
(as defined herein), (ii) the payment of Income Entitlements (as defined
herein) to the U.K. Company or the ANZ Australian Affiliate, as the case
may be, as the income beneficiaries of the Distribution Trust, and (iii)
the appointment of the Administrators.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit
of the other parties, hereby agrees, intending to be legally bound, as
follows:
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions . For all purposes of this Distribution Trust
-----------
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Issuing Trust
Agreement, either directly or by reference therein, have the meanings
assigned to them therein;
(c) The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
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(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles as in effect at the time of computation;
(e) Unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this
Distribution Trust Agreement; and
(f) The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Distribution Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Additional Capital Contributions" has the meaning specified in
Section 2.03.
"Administrators" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"ANZ Australian Affiliate" has the meaning specified in the preamble
to this Distribution Trust Agreement.
"ANZ Borrower" means each direct or indirect wholly owned subsidiary
of the Depositor and/or the Depositor or a branch of the Depositor, in each
case to whom a Distribution Loan has been made or assigned.
"Bank" has the meaning specified in the preamble to this Distribution
Trust Agreement.
"Board of Directors" means the board of directors of the Depositor or
any committee of the board of directors of the Depositor designated by the
board of directors of the Depositor and comprised of two or more members of
the board of directors of the Depositor.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, and to be in full force and
effect on the date of such certification, and delivered to the Distribution
Trustees.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in Sydney,
Australia, New York, New York or any other city or cities in which the
principal place of business of any ANZ Borrower is located from time to
time (initially Wellington, New Zealand) are authorized or required by law
or executive order to close.
"Capital Contributions" has the meaning specified in the recitals and
Section 2.03 to this Distribution Trust Agreement.
"Certificate of Trust" has the meaning specified in the recitals to
this Distribution Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission or any successor thereto.
"Common Securities" means an undivided beneficial interest in the
assets of the Distribution Trust, having the rights provided therefor in
this Distribution Trust Agreement, including the right to receive
distributions and a liquidation distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached hereto
as Exhibit B.
"Corporate Trust Office" means the principal office of the Property
Trustee located in the City of New York which at the time of the execution
of this Distribution Trust Agreement is located at _____________________.
"Debt Securities" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S)3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Depositor" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Distribution Loan" means each outstanding loan made by the
Distribution Trust to an ANZ Borrower each of which matures on or about
October 15, 2052.
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"Distribution Trust" means the ANZ Distribution Trust governed by this
Distribution Trust Agreement.
"Distribution Trust Agreement" means this Distribution Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all Exhibits
hereto.
"Distribution Trustees" has the meaning specified in the preamble to
this Distribution Trust Agreement.
"Early Termination Event" has the meaning specified in Section 8.02.
"Expiration Date" has the meaning specified in Section 8.01.
"Income Entitlements" means the non-cumulative income payments to the
U.K. Company or the ANZ Australian Affiliate, as the case may be, that they
are entitled to receive as the income beneficiaries of the Distribution
Trust as provided in this Distribution Trust Agreement.
"Indemnified Person" has the meaning specified in Section 7.05.
"Initial Capital Contribution" has the meaning specified in Section
2.03.
"Interest Payment Date" means January 15, April 15, July 15 and
October 15, of each year, commencing on October 15, 1998.
"Issue Date" means, collectively, each original issue date of the
TrUEPrS.
"Issuing Trust" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Issuing Trust Agreement" means the second amended and restated trust
agreement, dated as of September __, 1998, among ML IBK Positions, Inc., as
sponsor, the Trustees of the Issuing Trust and the Holders from time to
time.
"Jersey Preference Shares" has the meaning specified in the recitals
to this Distribution Trust Agreement.
"Jersey Subsidiary" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
9
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"Loan Agreement" means each agreement, between the Distribution Trust
and an ANZ Borrower, pursuant to which a Distribution Loan is made.
"Notes" means the promissory notes of the ANZ Borrower evidencing, in
the aggregate, its obligations under the Distribution Loan issued pursuant
to the Loan Agreement.
"Offering" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Paying Agent" means initially, ____________________________ or any
paying agent or co-paying agent appointed by the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account of the Property Trustee with the Bank of New York maintained
for the benefit of the U.K. Company or the ANZ Australian Affiliate, as the
case may be, as the income beneficiaries of the Distribution Trust and the
Depositor as the holder of the Common Securities and the residual interest
in the Distribution Trust, in which account all amounts paid in respect of
the Notes will be held and from which the Property Trustee, through the
Paying Agent, shall pay Income Entitlements in accordance with Section
5.01.
"Payment Prohibition" means, with respect to any Income Entitlement
payable to the U.K. Company on any Interest Payment Date (other than in
connection with a redemption or buy-back of the Preference Shares for
cash), (i) an Exchange Event has occurred on or prior to such Interest
Payment Date, (ii) the amount of such Income Entitlement payable on such
Interest Payment Date, together with the aggregate amount of dividends paid
on or before such date during the then current fiscal year of the Depositor
on any preference shares or ordinary shares of the Depositor, would exceed
the Depositor's earnings during the prior fiscal year, or (iii) the payment
of such Income Entitlement would be prohibited or limited by applicable
law, regulation or order or by any instrument or agreement to which the
Depositor is subject.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited partnership, joint venture, association, joint
stock company, company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof,
or any other entity of whatever nature.
"Preference Shares" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Property Trustee" has the meaning specified in the preamble to this
Distribution Trust Agreement.
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"Quarterly Amount" has the meaning specified in Section 5.01.
"Redemption Payment Date" has the meaning specified in Section 5.01.
"Relevant Trustee" has the meaning specified in Section 7.08.
"Responsible Officer" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Property Trustee customarily
performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration
of this Distribution Trust Agreement, and also, with respect to a
particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Securities Act" means the U.S. Securities Act of 1933, as amended,
and any successor statute thereto, in each case as amended from time to
time.
"TrUEPrS" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939 or
any successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Capital Contributions, (b) after the
Distribution Loan is made, the Notes and the Distribution Loan represented
thereby, (c) any payments thereon (including those deposited in the Payment
Account), and (d) all proceeds and rights in respect of the foregoing or
any other property and assets for the time being held or deemed to be held
by the Property Trustee on behalf of the Distribution Trust pursuant to
this Distribution Trust Agreement.
"U.K. Company" has the meaning specified in the preamble to this
Distribution Trust Agreement.
ARTICLE II
THE DISTRIBUTION TRUST
Section 2.01. Name . The Distribution Trust shall be known as "ANZ
----
Distribution Trust," as such name may be modified from time to time by the
Depositor and the Administrators following written notice to the U.K. Company,
the ANZ Australian Affiliate and the Distribution Trustees, in which name the
Administrators and the Distribution Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on behalf
of the Distribution Trust and sue and be sued.
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Section 2.02. Office of the Delaware Trustee; Principal Place of Business.
-----------------------------------------------------------
The address of the Delaware Trustee in the State of Delaware is
____________________________ , ____________________________ Attention:
______________, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the U.K. Company, the ANZ Australian
Affiliate and the Depositor. The principal executive office of the Distribution
Trust is in care of __________________________________________, Attention:
Office of the Secretary.
Section 2.03. Contribution of Trust Property; Organizational and On-Going
-----------------------------------------------------------
Expenses .
- --------
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with this Distribution Trust Agreement of the sum of US$1, which
constitutes the initial Trust Property. After the Depositor receives the initial
proceeds under the ADSs Subscription Agreement, the Depositor shall contribute
such proceeds to the Distribution Trust (the "Initial Capital Contribution"),
the Property Trustee, on behalf of the Distribution Trust, will acknowledge
receipt thereof and the Distribution Trust will make a Distribution Loan to an
ANZ Borrower in a principal amount equal to the amount of the Initial Capital
Contribution. The Depositor shall, from time to time within 30 days from
September __, 1998, contribute any additional proceeds it receives under the
ADSs Subscription Agreement to the Distribution Trust and may make additional
capital contributions (collectively, the "Additional Capital Contributions," and
together with the Initial Capital Contribution, the "Capital Contributions").
The aggregate principal amount of the Distribution Loans shall be increased from
time to time by the aggregate amount of any Additional Capital Contributions
received by the Property Trustee on behalf of the Distribution Trust. The
obligations of the ANZ Borrowers under the Distribution Loans shall be evidenced
by one or more promissory notes (the "Notes") in an aggregate principal amount
equal to the aggregate principal amount of the Distribution Loans.
The Depositor shall pay all organizational and on-going reasonable expenses
of the Distribution Trust as they arise. The Depositor shall make no claim upon
the Trust Property for the payment of such expenses.
Section 2.04. Declaration of Trust .
--------------------
The exclusive purposes and functions of the Distribution Trust are to (a)
use the Capital Contributions received to make Distribution Loans to ANZ
Borrowers, (b) distribute Income Entitlements to the U.K. Company or the ANZ
Australian Affiliate, as the case may be, as the income beneficiaries of the
Distribution Trust, in accordance with the terms hereof, (c) upon liquidation of
the Distribution Trust, distribute the residual assets to the Depositor, as the
holder of the Common Securities and the residual interest in the Distribution
Trust and (d) engage in only those other activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Distribution Trustees as
trustees of the Distribution
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Trust, to have all the rights, powers and duties to the extent set forth herein,
and the Distribution Trustees hereby accept such appointment; provided, however,
that after the Exchange Date, the Distribution Trust shall have the power
to change its jurisdiction of organization to any other jurisdiction, whether by
reconstitution, merger, consolidation or otherwise. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Distribution Trust, the
Depositor, the ANZ Australian Affiliate and the U.K. Company. The Depositor
hereby appoints the Administrators, with such Administrators having all rights,
powers and duties set forth herein with respect to accomplishing the purposes of
the Distribution Trust, and the Administrators hereby accept such appointment;
provided, however, that it is the intent of the parties hereto that such
Administrators shall not be trustees or, to the fullest extent permitted by law,
fiduciaries with respect to the Distribution Trust and this Distribution Trust
Agreement shall be construed in a manner consistent with such intent. The
Delaware Trustee shall be one of the Distribution Trustees of the Distribution
Trust for the sole and limited purpose of fulfilling the requirements of Section
3807 of the Delaware Business Trust Act and for taking such actions as are
required to be taken by a Delaware trustee under the Delaware Business Trust
Act, and the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrators set forth herein.
Section 2.05. Authorization to Enter into Certain Transactions .
------------------------------------------------
(a) The Distribution Trustees and the Administrators shall conduct the
affairs of the Distribution Trust in accordance with the terms of this
Distribution Trust Agreement. Subject to the limitations set forth in paragraph
(b) of this Section and in accordance with the following provisions (i), (ii)
and (iii), the Distribution Trustees and the Administrators shall act as
follows:
(i) Each Administrator, acting singly or jointly, is authorized, on
behalf of the Distribution Trust, to:
(A) execute and deliver an application for a taxpayer
identification number for the Distribution Trust;
(B) execute on behalf of the Distribution Trust any documents
that the Administrators have the power to execute pursuant to this
Distribution Trust Agreement, including without limitation, the Loan
Agreement; and
(C) take any action incidental to the foregoing as necessary or
advisable to give effect to the terms of this Distribution Trust
Agreement (and any actions taken in furtherance of the above prior to
the date of this Distribution Trust Agreement by the Administrators
are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on
behalf of the Distribution Trust with respect to the following matters:
(A) the establishment of the Payment Account;
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(B) the disbursements of the proceeds from the Capital
Contributions to the ANZ Borrower pursuant to the Loan Agreement and
the receipt of the Notes;
(C) the receipt and collection of interest, principal and any
other payments made in respect of the Notes and the deposit of such
amounts in the Payment Account;
(D) the distribution of Income Entitlements to the U.K. Company
or the ANZ Australian Affiliate in accordance with the terms of this
Distribution Trust Agreement;
(E) the sending of notices of default and other information
regarding the Notes to the holder of the Common Securities, the ANZ
Australian Affiliate and the U.K. Company in accordance with this
Distribution Trust Agreement;
(F) the distribution of the Trust Property in accordance with the
terms of this Distribution Trust Agreement;
(G) to the extent provided in this Distribution Trust Agreement,
the winding up of the affairs of the Distribution Trust and the
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware; and
(H) after an Exchange Event (as defined in the Issuing Trust
Agreement) (unless such Exchange Event is caused by the Property
Trustee), compliance with the provisions of this Distribution Trust
Agreement and the taking of any action to give effect to the terms of
this Distribution Trust Agreement and protect and conserve the Trust
Property for the benefit of the U.K. Company, the ANZ Australian
Affiliate and the Depositor;
provided, however, that nothing in this Section 2.05(a)(ii) shall require
the Property Trustee to take any action that is not otherwise required by
this Distribution Trust Agreement.
(iii) Each Distribution Trustee, acting singly or jointly, is authorized, on
behalf of the Distribution Trust, to elect to treat the Distribution Trust as an
entity that will be disregarded as an entity separate from its owner for United
States Federal income tax purposes.
(b) So long as this Distribution Trust Agreement remains in effect, the
Distribution Trust (or the Distribution Trustees or Administrators acting
on behalf of the Distribution Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or
contemplated hereby. In particular, neither the Distribution Trustees nor
the Administrators shall
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(i) acquire any investments or engage in any activities not expressly
authorized by this Distribution Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any
of the Trust Property or interests therein, including to the U.K. Company,
except as expressly provided herein, in the Loan Agreement or in the Notes,
(iii) take any action that would reasonably be expected to cause the
Distribution Trust to become taxable as a corporation for United States
Federal income tax purposes, (iv) incur any indebtedness for borrowed money
or issue any other debt, or (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property. The
Property Trustee shall defend all claims and demands of all Persons at any
time claiming any Lien on any of the Trust Property adverse to the interest
of the Distribution Trust, the U.K. Company, the ANZ Australian Affiliate
or the Depositor.
Section 2.06. Assets of Trust.
---------------
The assets of the Distribution Trust shall consist solely of the Trust
Property.
Section 2.07. Title to Trust Property.
-----------------------
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Distribution Trust, the U.K.
Company, the ANZ Australian Affiliate and the Depositor in accordance with this
Distribution Trust Agreement.
ARTICLE III
SECURITIES
Section 3.01. General Provisions Regarding Common Securities.
----------------------------------------------
(a) The Administrators are hereby authorized to issue Common Securities.
Capital contributed by the Depositor before the date hereof will be applied
to subscription of Common Securities. Additional capital contributed by the
Depositor pursuant to the Common Securities Subscription Agreement will be
applied to subscribe for additional Common Securities.
(b) The Distribution Trust may treat the Person in whose name any Common
Securities Certificate shall be registered on the books and records
maintained by or on behalf of the Distribution Trust as the sole owner of
such Common Securities Certificate and the Common Securities represented
thereby for purposes of receiving distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable
or other claims to or interest in such Common Securities Certificate on the
part of any Person, whether or not the Distribution Trust, the Distribution
Trustees or any other Person shall have actual or other notice to the
contrary.
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Section 3.02. Transfer of Common Securities.
-----------------------------
(a) Common Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in the terms of the
Common Securities. Any transfer or purported transfer of any Common
Security not made in accordance with this Declaration shall be null and
void.
(b) The Distribution Trustees shall provide for the registration of the
Common Securities and of the transfer of Common Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Distribution Trustees may require) by the holder thereof in respect of any
tax or other governmental charges that may be imposed in relation to it.
Upon surrender for registration of transfer of any Common Securities
Certificate, the Distribution Trustees shall cause one or more new Common
Securities Certificate to be issued in the name of the designated
transferee or transferees. Every Common Security Certificate surrendered
for registration of transfer shall be accompanied by a written instrument
of transfer in form satisfactory to the Administrators duly executed by the
holder or such holder's attorney duly authorized in writing. Each Common
Security Certificate surrendered for registration of transfer shall be
cancelled by the Distribution Trustees. A transferee of a Common Security
Certificate shall be entitled to the rights and subject to the obligations
of a holder hereunder upon the receipt by such transferee of a Common
Security Certificate. By its acceptance of a Common Security Certificate,
each transferee shall be deemed to have agreed to be bound this
Declaration.
ARTICLE IV
PAYMENT ACCOUNTS
Section 4.01. Payment Account.
---------------
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in, and withdrawals from, the
Payment Account in accordance with this Distribution Trust Agreement. All
monies and other property deposited or held from time to time in the
Payment Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the U.K. Company and the ANZ
Australian Affiliate, as the case may be, as the income beneficiaries of
the Distribution Trust, and the Depositor, and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Notes. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE V
INCOME ENTITLEMENTS
Section 5.01. Income Entitlements.
-------------------
(a) Income Entitlements shall be payable on each Interest Payment Date
in an amount equal to the quarterly interest payable on the Notes on such
Interest Payment Date (the "Quarterly Amount"); provided, however, that the
amount paid on the first Interest Payment Date immediately following any
Redemption Payment Date (as defined below) shall be an amount equal to the
difference between the Quarterly Amount and the amount paid on the Redemption
Payment Date pursuant to the following sentence. An Income Entitlement shall
also be paid on any date on which an Exchange Event occurs as a result of a
redemption or buy-back of the Preference Shares for cash unless such date is an
Interest Payment Date (the "Redemption Payment Date") in an amount equal to the
interest accrued on the Notes from and including the Interest Payment Date
immediately preceding the Redemption Payment Date to but excluding the
Redemption Payment Date. Notwithstanding the foregoing, Income Entitlements
shall only be paid if (i) the Distribution Trust has funds then on hand and
available in the Payment Account for the full payment of such Income
Entitlements and (ii) the Property Trustee has not received from the Depositor
notice of the occurrence of a Payment Prohibition prior to such Interest Payment
Date.
On the date of the Initial Capital Contribution, a facility fee payable to
the Distribution Trust pursuant to the Loan Agreement shall be paid to the
U.K. Company as an Income Entitlement to the extent such facility fee is
received by the Property Trustee, on behalf of the Distribution Trust.
Income Entitlements to be paid (i) prior to the Exchange Date, shall be
paid to the U.K. Company, (ii) after the Exchange Date, shall be paid to
the ANZ Australian Affiliate, (iii) on the Exchange Date as in the case of
an Exchange Event resulting from the redemption or buy-back of the
Preference Shares for cash, shall be paid to the U.K. Company and (iv) on
the Exchange Date other than in the case of an Exchange Event resulting
from the redemption or buy-back of the Preference Shares for cash, to the
ANZ Australian Affiliate.
(b) Notwithstanding anything else in this Section 5.01, (i) the right of
the U.K. Company to receive Income Entitlements will not represent an absolute
ownership interest in the Distribution Trust or the income thereof, but rather
an entitlement to receive interest payments on the Distribution Loan (including
the facility fee) only to the extent such payments are actually distributed as
Income Entitlements, (ii) if any Income Entitlement payable on any Interest
Payment Date is not paid on such date for any reason, the
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Distribution Trust will have no obligation to pay such Income Entitlement,
whether or not Income Entitlements are paid on any future Interest Payment Date
and (iii) the ANZ Australian Affiliate will be entitled to any Income
Entitlement which is not paid to the U.K. Company prior to the close of business
on the third Business Day after the date on which such Income Entitlement is
payable under Section 5.01(a) and other income, if any, of the Distribution
Trust.
(c) No later than three Business Days prior to any Interest Payment Date
or Redemption Payment Date, the Depositor shall transmit to the Property
Trustee, the Delaware Trustee, the U.K. Company and the ANZ Australian
Affiliate, notice of any Payment Prohibition which will exist on such
Interest Payment Date.
Section 5.02. Payment Procedures.
------------------
Payments of Income Entitlements shall be made by wire transfer on the date
of the Initial Capital Contribution, each Interest Payment Date and, if
applicable, the Redemption Payment Date to the bank account designated by the
U.K. Company or the ANZ Australian Affiliate, as applicable.
Section 5.03. Tax Returns and Reports.
-----------------------
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Distribution Trust. In this regard, the Administrators shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Distribution Trust in each taxable year
of the Distribution Trust and (b) prepare and furnish (or cause to be prepared
and furnished) to the Depositor all Internal Revenue Service forms required to
be provided by the Distribution Trust. The Administrators shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Distribution Trustees shall
comply with United States Federal withholding and backup withholding tax laws
and information reporting requirements with respect to any interest payments
(including the facility fee) received on the Notes from the ANZ Borrower and any
Income Entitlements payable to the U.K. Company or the ANZ Australian Affiliate.
On or before December 15 of each year during which the Note is outstanding,
commencing December 15, 1998, the Administrators shall furnish to the Property
Trustee such information as may be necessary by the Property Trustee in order
that the Property Trustee may prepare the information which it is required to
report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Code.
Section 5.04. Payment of Taxes, Duties, Etc. of the Distribution Trust.
--------------------------------------------------------
The Property Trustee shall promptly pay, or cause the Administrators to pay
in connection with the filing of any tax returns or reports pursuant to Section
5.03, any taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Distribution Trust by the United States or any
other taxing authority.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Representations and Warranties of the Property Trustee and
----------------------------------------------------------
the Delaware Trustee.
- --------------------
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor, the ANZ Australian Affiliate and the U.K. Company that:
(a) The Property Trustee is a banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of New
York, with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of this Distribution Trust
Agreement.
(b) The execution, delivery and performance by the Property Trustee of this
Distribution Trust Agreement has been duly authorized by all necessary corporate
action on the part of the Property Trustee; and this Distribution Trust
Agreement has been duly executed and delivered by the Property Trustee, and
constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good
standing as a banking corporation under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of
this Distribution Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee; and this Distribution
Trust Agreement has been duly executed and delivered by the Delaware
Trustee, and constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency,
and other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law).
(e) The Delaware Trustee is an entity which has, and at all times during
the term of the Distribution Trust will maintain, its principal place of
business in the State of Delaware.
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(f) The Property Trustee is a state-chartered bank and at the time of
appointment has securities rated in one of the three highest categories by
a nationally recognized statistical rating organization and has capital and
surplus of at least $50,000,000.
Section 6.02. Representations and Warranties of Depositor.
-------------------------------------------
The Depositor hereby represents and warrants for the benefit of the U.K.
Company and the ANZ Australian Affiliate that there are no taxes, fees or other
governmental charges payable by the Distribution Trust (or the Distribution
Trustees on behalf of the Distribution Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by either the Property Trustee or the Delaware Trustee,
as the case may be, of this Distribution Trust Agreement.
ARTICLE VII
THE DISTRIBUTION TRUSTEES; THE ADMINISTRATORS
Section 7.01. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Distribution Trustees and the
Administrators shall be as provided by this Distribution Trust Agreement.
Notwithstanding the foregoing, no provision of this Distribution Trust
Agreement shall require the Distribution Trustees or the Administrators to
expend or risk their own funds or otherwise incur any financial liability
in the performance of any of their duties hereunder, or in the exercise of
any of their rights or powers, if they shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Distribution Trust Agreement
relating to the conduct or affecting the liability of or affording
protection to the Distribution Trustees or the Administrators shall be
subject to the provisions of this Section. Nothing in this Distribution
Trust Agreement shall be construed to release an Administrator or any of
the Distribution Trustees from liability for its own negligent action, its
own negligent failure to act, its own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties hereunder. To the extent
that, at law or in equity, a Distribution Trustee or Administrator has
duties and liabilities relating to the Distribution Trust, the Depositor,
the ANZ Australian Affiliate or the U.K. Company, such Distribution Trustee
or Administrator shall not be liable to the Distribution Trust, the
Depositor, the ANZ Australian Affiliate or to the U.K. Company for such
Distribution Trustee's or Administrator's good faith reliance on the
provisions of this Distribution Trust Agreement. The provisions of this
Distribution Trust Agreement, to the extent that they restrict the duties
and liabilities of the Distribution Trustees and Administrators otherwise
existing at law or in equity, are agreed by the Depositor, the ANZ
Australian Affiliate and the U.K. Company to replace such other duties and
liabilities of the Distribution Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Income Entitlements shall be made only from the cash received from
interest payments on the
20
<PAGE>
Notes (including the facility fee) forming part of the Trust Property and only
if such cash shall be sufficient to enable the Property Trustee or a Paying
Agent to make such payments in full in accordance with the terms hereof. Each of
the U.K. Company and the ANZ Australian Affiliate, by its acceptance of any
Income Entitlements, agrees that it will look solely to such cash to the extent
it is legally available for the payment to it of each Income Entitlement as
herein provided and that neither the Distribution Trustees nor the
Administrators are personally liable to it for any amount paid or payable in
respect of the Income Entitlements or for any other liability in respect of the
Income Entitlements. This Section 7.01(b) does not limit the liability of the
Distribution Trustees or any Paying Agent expressly set forth elsewhere in this
Trust Agreement.
(c) The Distribution Trustees and Administrators shall undertake to perform
only such duties as are specifically set forth in this Distribution Trust
Agreement (including pursuant to Section 7.10), and no implied covenants
shall be read into this Distribution Trust Agreement against the
Distribution Trustees or Administrators.
(d) No provision of this Distribution Trust Agreement shall be construed to
relieve any Distribution Trustee or Administrator from liability for its
own willful misfeasance, bad faith, gross negligence or reckless disregard
of its duties hereunder, except that:
(i) the duties and obligations of the Distribution Trustees and
Administrators shall be determined solely by the express provisions of this
Distribution Trust Agreement (including pursuant to Section 7.10), and the
Distribution Trustees and Administrators shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Distribution Trust Agreement (including pursuant to Section 7.10); and
(ii) in the absence of bad faith on the part of any Distribution
Trustee or Administrator, the Distribution Trustees and Administrators may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to them and conforming to the requirements of this Distribution Trust
Agreement;
(e) No Distribution Trustee or Administrator shall be liable for any error
of judgment made in good faith by an authorized officer of such
Distribution Trustee or Administrator, unless it shall be proved that such
Distribution Trustee or Administrator was negligent in ascertaining the
pertinent facts;
(f) No Distribution Trustee or Administrator shall be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Depositor relating to the time, method
and place of conducting any proceeding for any remedy available to such
Distribution Trustee or Administrator, or exercising any trust or power
conferred upon such Distribution Trustee or Administrator under this
Distribution Trust Agreement;
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(g) The Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Note and the Payment Account shall
be to deal with such property in a reasonably prudent and similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Distribution Trust Agreement;
(h) The Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree with the Depositor; and
money held by the Property Trustee shall be segregated from other funds
held by and shall be held in the Payment Account maintained by the Property
Trustee pursuant to Section 4.01, except to the extent otherwise required
by law;
(i) The Distribution Trustees and the Administrators shall not be
responsible for monitoring the compliance by the Administrators or the Depositor
with their respective duties under this Distribution Trust Agreement, nor shall
any Distribution Trustee or Administrator be liable for the default or
misconduct of any other Distribution Trustee, the Administrators or the
Depositor; and
(j) No provision of this Distribution Trust Agreement shall require any
Distribution Trustee or Administrator to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if such Distribution
Trustee or Administrator shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Distribution Trust Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
(k) The Distribution Trustees shall elect, on behalf of the Distribution
Trust, to treat the Distribution Trust as an entity that will be disregarded as
an entity separate from its owner for United States Federal income tax purposes.
Section 7.02. Certain Notices.
---------------
Within five Business Days after the occurrence of any Exchange Event
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
7.08, notice of such Exchange Event to the Delaware Trustee and the
Administrators.
Section 7.03. Certain Rights of the Distribution Trustees and
-----------------------------------------------
Administrators.
- --------------
Subject to the provisions of Section 7.01:
(a) no Distribution Trustee shall have any duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any re-
recording, refiling or reregistration thereof;
22
<PAGE>
(b) any Distribution Trustee or Administrator may consult with counsel of
its own choosing (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) 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
and in accordance with such advice; the Distribution Trustees and Administrators
shall have the right at any time to seek instructions concerning the
administration of this Distribution Trust Agreement from any court of competent
jurisdiction;
(c) no Distribution Trustee or Administrator shall be under any obligation
to exercise any of the rights or powers vested in it by this Distribution Trust
Agreement at the request or direction of the Depositor pursuant to this
Distribution Trust Agreement, unless the Depositor shall have offered to such
Distribution Trustee or Administrator security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided that, nothing contained in
this Section 7.03(c) shall be taken to relieve any Distribution Trustee or
Administrator, upon the occurrence of an Exchange Event, of its obligation to
exercise the rights and powers vested in it by this Distribution Trust
Agreement;
(d) no Distribution Trustee or Administrator shall be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by the Depositor, but any Distribution Trustee and Administrator may
make such further inquiry or investigation into such facts or matters as it
may see fit;
(e) any Distribution Trustee or Administrator may execute any of the trusts
or powers hereunder or perform any of its duties hereunder either directly
or by or through its agents or attorneys, provided that such Distribution
Trustee or Administrator shall be responsible for any willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties on the part
of any such agent or attorney;
(f) whenever in the administration of this Distribution Trust Agreement any
Distribution Trustee or Administrator shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, such Distribution Trustee or Administrator (i) may
request instructions from the Depositor, (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions
are received, and (iii) shall be fully protected in acting in accordance
with such instructions;
(g) except as otherwise expressly provided by this Distribution Trust
Agreement, no Distribution Trustee or Administrator shall be under any
obligation to take any action that is discretionary under the provisions of
this Distribution Trust Agreement. No provision of this Distribution Trust
Agreement shall be deemed to impose any duty or obligation on any
Distribution Trustee or Administrator to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it,
in any jurisdiction in which it shall be illegal, or in
23
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which such Distribution Trustee or Administrator shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to any Distribution Trustee or Administrator shall be
construed to be a duty;
(h) if (i) in performing its duties under this Distribution Trust Agreement
any Distribution Trustee or Administrator is required to decide between
alternative courses of action or (ii) in construing any of the provisions of
this Distribution Trust Agreement that such Distribution Trustee or
Administrator finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) such Distribution Trustee or Administrator is unsure
of the application of any provision of this Distribution Trust Agreement, then,
such Distribution Trustee or Administrator shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the course of
action to be taken and such Distribution Trustee or Administrator shall take
such action, or refrain from taking such action, as such Distribution Trustee or
Administrator shall be instructed in writing to take, or to refrain from taking,
by the Depositor; provided, however, that if such Distribution Trustee or
Administrator does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Distribution Trust
Agreement as it shall deem advisable and in the best interests of the
Distribution Trust, in which event such Distribution Trustee or Administrator
shall have no liability except for its own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties;
(i) when any Distribution Trustee or Administrator incurs expenses or
renders services in connection with an Exchange Event, such expenses (including
the reasonable fees and expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights generally; and
(j) no Distribution Trustee or Administrator shall be charged with knowledge
of an Exchange Event unless such Exchange Event has occurred as a result of the
act or failure to act of such Distribution Trustee or Administrator or a
Responsible Officer of such Distribution Trustee or Administrator obtains actual
knowledge of such event or such Distribution Trustee or Administrator receives
written notice of such event.
Section 7.04. Not Responsible for Recitals.
----------------------------
The recitals contained herein shall be taken as the statements of the
Distribution Trust, and the Distribution Trustees and the Administrators do not
assume any responsibility for their correctness.
Section 7.05. Compensation; Indemnity; Fees.
-----------------------------
The Depositor agrees:
24
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(a) to pay to the Distribution Trustees from time to time such compensation
for all services rendered by them hereunder as the parties shall agree from time
to time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) to reimburse each Distribution Trustee and Administrator upon request
for all reasonable expenses, disbursements and advances incurred or made by such
Distribution Trustee or Administrator in accordance with any provision of this
Distribution Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties hereunder by such
Distribution Trustee or Administrator; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Distribution Trustee, (ii) each Administrator, (iii) any
Affiliate of any Distribution Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Distribution Trustee, and (v) any
employee or agent of the Distribution Trust, (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person arising out of or in connection with the creation, operation
or dissolution of the Distribution Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Distribution
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by this Distribution
Trust Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties hereunder with respect to such acts or omissions.
The provisions of this Section 7.05 shall survive the termination of this
Distribution Trust Agreement and any resignation or removal of any Distribution
Trustee or Administrator.
No Distribution Trustee or Administrator may claim any lien or charge on,
or any right of set-off with respect to, any Trust Property as a result of any
amount due pursuant to this Section 7.05 or otherwise with respect to this
Agreement or for any other reason.
The Depositor, any Administrator and any Distribution Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Distribution Trust, and the Distribution Trust shall have no rights by virtue of
this Distribution Trust Agreement in and to such independent ventures or the
income or profits derived therefrom, and the pursuit of any such venture, even
if competitive with the business of the Distribution Trust, shall not be deemed
wrongful or improper. Neither the Depositor, any Administrator, nor any
Distribution Trustee shall be obligated to present any particular investment or
other opportunity to the Distribution Trust even if such opportunity is of a
character that, if presented to the Distribution Trust, could be taken by
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<PAGE>
the Distribution Trust, and the Depositor, any Administrator or any Distribution
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Distribution Trustee or Administrator may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
In the event that the Property Trustee is also acting as Paying Agent
hereunder, the rights and protections afforded to the Property Trustee pursuant
to this Article VII shall also be afforded to such Paying Agent.
Section 7.06. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Distribution Trustees and Administrators.
- ----------------------------------------
(a) There shall at all times be a Property Trustee hereunder that is a
national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and that has a combined capital and surplus of at least
$50,000,000. If any Property Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Property Trustee shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Property Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. At the time of appointment,
the Property Trustee must have securities rated in one of the three highest
rating categories by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder. Each
Administrator shall be appointed and be subject to immediate removal by the
Depositor and shall be either a natural person who is at least 21 years of
age and a resident of the United States or a legal entity incorporated in
or organized under the laws of the United States or any State thereof that
shall act through one or more persons authorized to bind that entity. An
employee, officer or Affiliate of the Depositor may serve as an
Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of the Delaware Business Trust Act and any other applicable
Delaware law.
Section 7.07. Co-Distribution Trustees and Separate Trustee.
---------------------------------------------
Unless an Exchange Event shall have occurred and be continuing, at any time
or times, for the purpose of meeting the legal requirements of any jurisdiction
in which any part of the Trust Property may at the time be located, the Property
Trustee shall have power to appoint, and
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<PAGE>
upon the written request of the Property Trustee, the Depositor, the other
Distribution Trustee and the Administrators shall for such purpose join with the
Property Trustee in the execution, delivery, and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee and the Depositor either to act as co-trustee, jointly with
the Property Trustee, of all or any part of such Trust Property, or to the
extent required by law to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor, the other Distribution
Trustee or the Administrators be required by any co-trustee or separate trustee
so appointed for more fully confirming to such co-trustee or separate trustee
such property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor, the other
Distribution Trustee and the Administrators.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(b) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under
this Section. Upon the written request of the Property Trustee, the
Depositor, the other Distribution Trustee and the Administrators shall join
with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this
Section.
(c) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee, the other
Distribution Trustee or the Administrators hereunder.
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<PAGE>
(d) No Distribution Trustee or Administrator shall be liable by reason of
any act of a co-trustee or separate trustee or any employees or agents of a
co-trustee and separate trustee nor shall any of them be liable for the
supervision of a co-trustee or separate trustee or employees or agents of a
co-trustee and separate trustee.
(e) Any act of the Depositor delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 7.08. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of any Distribution Trustee (the "Relevant
Trustee") and no appointment of a successor Distribution Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Distribution Trustee in accordance with the applicable requirements of
Section 7.09.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Depositor, the
Distribution Trustees and the Administrators. The Depositor shall appoint a
successor meeting the eligibility requirements set forth herein to serve as the
Relevant Trustee. If the instrument of acceptance by the successor Distribution
Trustee required by Section 7.09 shall not have been delivered to the Relevant
Trustee within 60 days after the giving of such notice of resignation, the
Relevant Trustee may petition, at the expense of the Depositor, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Depositor may remove a Distribution Trustee. If a Distribution Trustee
is removed the Depositor may appoint a successor Distribution Trustee, and such
successor Distribution Trustee shall comply with the applicable requirements of
Section 7.09. If an Administrator is removed, resigns or otherwise vacates
office, the Depositor, shall promptly appoint a successor. The Depositor shall
have the exclusive right to remove an Administrator.
If no successor Relevant Trustee shall have been so appointed by the
Depositor and accepted appointment in the manner required by Section 7.09, any
removed Distribution Trustee, may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
The Depositor shall give notice of each resignation and each removal of a
Distribution Trustee and each appointment of a successor Distribution Trustee to
each other Distribution Trustee and the Administrators in the manner provided in
Section 9.07. Each notice shall include the name of the Distribution Trustee
resigning or so removed or appointed and the address of its Corporate Trust
Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Distribution
Trust Agreement, in the event any Delaware Trustee who is a natural person dies
or becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death,
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incompetence or incapacity may be filled by the Depositor following the
procedures (with the successor in each case being a Person who satisfies the
eligibility requirements for a Delaware Trustee).
Section 7.09. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each such successor Relevant Trustee shall
execute, acknowledge and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Note and the
Distribution Trust, and (b) shall add to or change any of the provisions of this
Distribution Trust Agreement as shall be necessary to provide for or facilitate
the administration of the Distribution Trust by more than one Relevant Trustee
and upon the execution and delivery of such amendment the resignation or removal
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Depositor or any
successor Relevant Trustee such retiring Relevant Trustee shall, upon payment of
its charges, duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Note and the Distribution Trust.
Upon request of any such successor Relevant Trustee, the other Distribution
Trustee, the Depositor and the Administrators shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 7.10. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Property
Trustee or Delaware Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Property Trustee or
Delaware Trustee, shall be the successor of such Property Trustee or Delaware
Trustee hereunder, provided that such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 7.11. Preferential Collection of Claims Against Depositor.
---------------------------------------------------
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If and when any Distribution Trustee or Administrator shall be or become a
creditor of the Depositor, such Distribution Trustee or Administrator shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor (or any such other obligor) as is required by the
Trust Indenture Act.
Section 7.12. Trustee May File Proofs of Claim.
--------------------------------
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Distribution Trust or the property of the
Distribution Trust, any Distribution Trustee or Administrator shall be entitled
and empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any interest
payments owing and unpaid in respect of the Note and to file such other papers
or documents as may be necessary or advisable in order to have the claims of
such Distribution Trustee or Administrator (including any claim for the
compensation, expenses, disbursements and advances of the such Distribution
Trustee or Administrator, its agents and counsel payable hereunder) allowed in
such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by the Depositor to make
such payments to such Distribution Trustee or Administrator and, in the event
such Distribution Trustee or Administrator shall consent to the making of such
payments directly to the U.K. Company or the ANZ Australian Affiliate, as the
case may be, to pay to such Distribution Trustee or Administrator any amount due
it for the compensation, expenses, disbursements and advances of such
Distribution Trustee or Administrator, its agents and counsel payable hereunder,
and any other amounts due such Distribution Trustee or Administrator under this
Distribution Trust Agreement.
Section 7.13. Reports by Property Trustee.
---------------------------
(a) Not later than January 31 of each year commencing with January 31, 1999,
the Property Trustee shall transmit to the Depositor, a brief report dated as of
the immediately preceding November 30 with respect to:
(i) its eligibility under Section 7.06 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by the
Property Trustee in the performance of its duties hereunder which it has not
previously reported.
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(b) A copy of each such report shall be filed by the Property
Trustee with the Depositor.
Section 7.14. Number of Distribution Trustees.
-------------------------------
(a) The number of Distribution Trustees shall be two. The Property Trustee
and the Delaware Trustee may be the same Person, in which case the number of
Distribution Trustees may be one.
(b) If a Distribution Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with a Distribution Trustee
appointed by the Depositor.
(c) The death, resignation, retirement,removal,bankruptcy,dissolution,
termination, incompetence or incapacity to perform the duties of a Distribution
Trustee shall not operate to dissolve, terminate or annul the Distribution Trust
or terminate this Distribution Trust Agreement.
Section 7.15. Delegation of Power.
-------------------
(a) Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.05(a) or
making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time to
such of their number the doing of such things and the execution of such
instruments either in the name of the Distribution Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Distribution Trust Agreement.
Section 7.16. Appointment of Administrators.
-----------------------------
(a) The Administrators shall be appointed by the Depositor and may be
removed by the Depositor or may resign at any time. The Depositor hereby
appoints Gary Stuber, Vice President - Finance and Planning of the Depositor,
and Leo Zavoli, Assistant Vice President - Audit and Compliance of the Depositor
as the initial Administrators, and by their execution of this Distribution Trust
Agreement such individuals hereby accept such appointment. Upon any resignation
or removal, the Depositor shall appoint a successor Administrator. Each
Administrator shall execute this Distribution Trust Agreement thereby agreeing
to comply with, and be legally bound by, all of the terms, conditions and
provisions of this Distribution Trust Agreement. If at any time there is no
Administrator, the Property Trustee may petition any court of competent
jurisdiction for the appointment of one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator in accordance with
this Section 7.16, the
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Administrators in office, regardless of their number (and notwithstanding any
other provision of this Distribution Trust Agreement), shall have all the powers
granted to the Administrators and shall discharge all the duties imposed upon
the Administrators by this Distribution Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this
Distribution Trust Agreement, in the event any Administrator who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent, or
incapacitated, the vacancy created by such death, incompetence competence r
incapacity may be filled by the remaining Administrators, if there were at least
two of them prior to such vacancy, and by the Depositor, if there were not two
such Administrators immediately prior to such vacancy (with the successor in
each case being a Person who satisfies the eligibility requirement for
Administrators, as the case may be, set forth in Section 7.06).
ARTICLE VIII
DISSOLUTION
Section 8.01. Dissolution Upon Expiration Date.
--------------------------------
Unless earlier dissolved, the Distribution Trust shall dissolve and its
affairs wound up at any time selected by the ANZ Australian Affiliate (the
"Expiration Date"), and thereafter the Trust Property shall be distributed in
accordance with Section 8.03.
Section 8.02. Early Termination.
-----------------
The first to occur of any of the following events is an "Early Termination
Event" and the occurrence of which shall cause the dissolution of the
Distribution Trust:
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect
to the Depositor or all or substantially all of its property, or a court or
other governmental agency shall enter a decree or order and such decree or
order shall remain unstayed and undischarged for a period of 60 days;
(b) the entry of an order for dissolution of the Distribution Trust by a
court of competent jurisdiction.
Section 8.03. Termination.
-----------
(a) This Distribution Trust Agreement and the Distribution Trust created
hereby shall terminate as provided in Section 8.01 and 8.02, and the Trust
Property shall be distributed to the Depositor, and this Distribution Trust
shall be of no further force or effect.
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(b) In the event that the Distribution Trust terminates, the Trustees shall
make any distributions required to made pursuant to Section 8.03(a) and
then the Administrators (each of whom is hereby authorized to take such
action) shall file a certificate of cancellation with the Secretary of
State of the State of Delaware terminating the Trust and, upon such filing,
the respective obligations and responsibilities of the Distribution
Trustees, the Administrators and the Distribution Trust shall terminate.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
---------
(a) This Distribution Trust Agreement may be amended from time to time by
the Depositor (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Distribution Trust Agreement, provided, however, that such amendment shall not
adversely affect in any material respect the interests of the Property Trustee,
the Delaware Trustee, the ANZ Australian Affiliate or, prior to the Exchange
Date, the U.K. Company without its written consent or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Distribution Trust will not be taxable as a
corporation for United States Federal income tax purposes at any time that the
Note is outstanding or to ensure that the Distribution Trust will not be
required to register as an investment company under the Investment Company Act.
(b) Notwithstanding any other provisions of this Distribution Trust
Agreement, the Depositor shall not enter into or consent to any amendment to
this Distribution Trust Agreement which would cause the Distribution Trust to
fail or cease to qualify for the exemption from status as an "investment
company" under the Investment Company Act or be taxable as a corporation for
United States Federal income tax purposes.
(c) Notwithstanding anything in this Distribution Trust Agreement to the
contrary, without the consent of the Depositor and the Administrators, this
Distribution Trust Agreement may not be amended in a manner which imposes
any additional obligation on the Depositor, the Administrators, the ANZ
Australian Affiliate and the U.K. Company.
(d) In the event that any amendment to this Distribution Trust Agreement is
made, the Depositor shall promptly provide to the Property Trustee, the
Delaware Trustee, the ANZ Australian Affiliate, the U.K. Company and the
Administrators a copy of such amendment.
(e) Any amendments to this Distribution Trust Agreement, pursuant to Section
9.01(a), shall become effective when notice of such amendment is given to
the Property Trustee, the Delaware Trustee, the ANZ Australian Affiliate,
the U.K. Company and the Administrators.
33
<PAGE>
Section 9.02. Separability.
------------
In case any provision in this Distribution Trust Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 9.03. Governing Law.
-------------
THIS DISTRIBUTION TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
U.K. COMPANY, THE ANZ AUSTRALIAN AFFILIATE, THE DISTRIBUTION TRUST, THE
DEPOSITOR, THE DISTRIBUTION TRUSTEES AND THE ADMINISTRATORS SHALL BE GOVERNED BY
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE
APPLICABLE TO THE DISTRIBUTION TRUST, THE DEPOSITOR, THE DISTRIBUTION TRUSTEES,
THE ADMINISTRATORS, THE ANZ AUSTRALIAN AFFILIATE, THE U.K. COMPANY OR THIS
DISTRIBUTION TRUST AGREEMENT ANY PROVISION OF THE LAWS (STATUTORY OR COMMON) OF
THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE DISTRIBUTION
TRUSTEES OR THE ADMINISTRATORS AS SET FORTH OR REFERENCED IN THIS DISTRIBUTION
TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY
TO THE DISTRIBUTION TRUST.
34
<PAGE>
Section 9.04. Income Entitlements Due on Non-Business Day.
-------------------------------------------
If the date fixed for any payment of any Income Entitlement is not a
Business Day, then such payment need not be made on such date but may be made on
the next succeeding day that is a Business Day with the same force and effect as
if made on the date on which such payment was originally payable and no interest
or other payments shall accrue on such unpaid amount for the period after such
date.
Section 9.05. Successors.
----------
This Distribution Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to or assignee of the Depositor, the Distribution
Trust, the Administrators, the U.K. Company, the ANZ Australian Affiliate and
any Distribution Trustee, including any successor by operation of law.
Section 9.06. Headings.
--------
The Article and Section headings are for convenience only and shall not
affect the construction of this Distribution Trust Agreement.
Section 9.07. Reports, Notices and Demands.
----------------------------
Any report, notice, demand or other communication that by any provision of
this Distribution Trust Agreement is required or permitted to be given or served
to or upon the Depositor may be given or served in writing by deposit thereof,
first class postage prepaid, in the United States mail, hand delivery or
facsimile transmission the Depositor, to Level 14, 530 Collins Street,
Melbourne, Victoria 3000, Australia, Attention: Neville Mallard, facsimile no.:
_________ or to such other address as may be specified in a written notice by
the Depositor to the Property Trustee. Such notice, demand or other
communication to or upon the Depositor shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication which by any provision of this
Distribution Trust Agreement is required or permitted to be given or served to
or upon the Property Trustee, the Delaware Trustee, the Administrators, the
Distribution Trust, the U.K. Company or the ANZ Australian Affiliate shall be
given in writing addressed (until another address is published by the
Distribution Trust) as follows: (a) with respect to the Property Trustee to
____________________________, _____________________, New York, NY _____,
Attention: _________________________________________________; (b) with respect
to the Delaware Trustee to ____________________________ , ___________________,
Attention: ____________; (c) with respect to the Administrators, to them at:
1177 Avenue of the Americas, 6th Floor, New York, NY 10036; (d) with respect to
the Distribution Trust, to c/o ____________________________________________,
Attention: _________________; (e) with respect to the U.K. Company, to
c/o___________, Attention: _________________ and (f) with
35
<PAGE>
respect to the ANZ Australian Affiliate, to _____________, Attention: _________
_____. Such notice,demand or other communication to or upon the Property
Trustee, the Delaware Trustee, the Administrators, the Distribution Trust, the
U.K. Company or the ANZ Australian Affiliate shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
relevant party.
Section 9.08. Counterparts.
------------
This instrument may be executed in any number or counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
36
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Distribution
Trust Agreement to be duly executed as of the day and year first above
written.
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, as Depositor
By:____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee, and
not in its individual capacity
By:____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee, and not
in its individual capacity
By:_____________________________________
Name:
Title:
CARLOTTA (UK) COMPANY, as
Income Beneficiary
By:______________________________________
Name:
Title:
ANZ FUNDS PTY LTD.,
as Income Beneficiary
By:______________________________________
Name:
Title:
37
<PAGE>
Agreed to and Accepted by,
__________________________________________
Name: Gary Stuber
Title: Administrator
__________________________________________
Name: Leo Zavoli
Title: Administrator
38
<PAGE>
Exhibit A
CERTIFICATE OF TRUST
A-1
<PAGE>
Exhibit B
FORM OF COMMON SECURITIES
B-1
<PAGE>
EXHIBIT (1)
Brown & Wood LLP
One World Trade Center
New York, New York 10048-0557
September 14, 1998
ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
850 Library Avenue
Suite 204
Newark, Delaware 19715
Ladies and Gentlemen:
We have acted as counsel for ANZ Exchangeable Preferred Trust, a Delaware
business trust (the "Trust"), in connection with the registration of Trust Units
Exchangeable for Preference Shares(SM) ("TrUEPrS(SM)"), under the Securities Act
of 1933, as amended, pursuant to a registration statement on Form N-2 to be
filed with the Securities and Exchange Commission on the date hereof (the
"Registration Statement").
As counsel for the Trust, we are familiar with the proceedings taken by the
Trust in connection with the authorization, issuance and sale of the TrUEPrS. In
addition, we have examined and are familiar with the Certificate of Trust of the
Trust, the Restated Certificate of Trust, the form of the Second Amended and
Restated Trust Agreement of the Trust and such other documents as we have deemed
relevant to the matters referred to in this opinion.
Based upon the foregoing, we are of the opinion that the TrUEPrS, upon
issuance and sale in the manner referred to in the Registration Statement, will
be legally issued, fully paid and non-assessable TrUEPrS of the Trust.
In rendering this opinion, we have relied as to matters of Delaware law
upon an opinion of Richards, Layton & Finger, P.A. rendered to the Trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus constituting
a part thereof.
Very truly yours,
/s/Brown & Wood LLP
________________________________
(SM) Service mark of Merrill Lynch & Co., Inc.
<PAGE>
Exhibit 99 (n)(1)
September 14, 1998
[LETTERHEAD OF SULLIVAN & CROMWELL]
ANZ Exchangeable Preferred Trust,
c/o Puglisi & Associates,
850 Library Avenue, Suite 204,
Newark, Delaware 19715.
Dear Sirs:
We have acted as special United States counsel to ANZ Exchangeable
Preferred Trust (the "Trust") in connection with the Registration Statement
on Form N-2 of the Trust filed with the Securities and Exchange Commission (the
"Registration Statement") and hereby confirm to you our opinion as set forth
under the heading "United States Federal Income Tax Considerations" in the
Prospectus included in the Registration Statement.
We hereby consent to the use of our name under the heading "United
States Federal Income Tax Considerations" and consent of the filing of this
letter as an exhibit to the Registration Statement. In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933.
Very truly yours,
Sullivan & Cromwell
<PAGE>
[LETTERHEAD OF PRICEWATERHOUSECOOPERS]
EXHIBIT (n)(2)
ANZ Exchangeable Preferred Trust
c/o Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19715
U.S.A.
September 14, 1998
Ladies and Gentlemen
Registration Statement on Form N-2
File Nos 333-58751 and 811-08865
We have acted as tax counsel to the ANZ Exchangeable Preferred Trust (the "Trust
") in connection with the registration of its Trust Units Exchangeable for
Preference Shares(SM) (TrUEPrS(SM)). In connection therewith, we have prepared
the discussion set forth under the captions "Prospectus Summary - Certain Tax
Considerations - Australia" and "Taxation - Australian Tax Considerations" (the
"Discussion") in the Prospectus (the "Prospectus") that is part of Pre-Effective
Amendment No 3 to the Registration Statement on Form N-2 (File Nos. 333-58751
and 811-08865) (the "Registration Statement") filed by the Trust with the
Securities and Exchange Commission on September 14, 1998.
We hereby confirm our opinion as set forth in the Discussion. In rendering our
opinion, we have examined the Amended and Restated Trust Agreement of the Trust
and those transaction documents we considered relevant to our opinion, each in
the form to be filed as an exhibit to the Registration Statement, and have
assumed that the obligations contemplated thereunder will be performed in
accordance with their terms.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our name under the caption
"Taxation - Australian Tax Consideration" in the Prospectus. The issuance of
such consent does not concede that we are an "expert" for the purposes of the
Securities Act of 1933.
Very truly yours
/s/ A.E. Clemens
___________________________________________
(SM) Service mark of Merrill Lynch & Co Inc
<PAGE>
EXHIBIT 99(P)
TrUEPrS SUBSCRIPTION AGREEMENT
THIS TrUEPrS SUBSCRIPTION AGREEMENT dated as of this 1st day of September,
1998, by and between ANZ Exchangeable Preferred Trust, a business trust created
pursuant to the Business Trust Act of the State of Delaware (Chapter 38, Title
12, of the Delaware Code, 12 Del. C. (Sections 3801 et seq.)) (such trust and
the trustees thereof acting in their capacities as such being referred to herein
as the "Trust"), and ML IBK Positions, Inc. (the "Purchaser").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF THE TrUEPrS
1.1 SALE AND ISSUANCE OF TrUEPrS. Subject to the terms and
conditions of this Agreement, the Trust agrees to sell to the Purchaser,
and the Purchaser agrees to purchase from the Trust, 4,000 Trust Units
Exchangeable for Preference SharesSM ("TrUEPrS(SM)"), each representing a
proportionate undivided beneficial interest in the assets of the Trust, at
a purchase price of $100,000.
1.2 CLOSING. The purchase and sale of the TrUEPrS shall take place
at the offices of Brown & Wood LLP, One World Trade Center, New York, New
York 10048 at or about 4:00 p.m., New York City time, on September 1, 1998,
or at such other time ("Closing Date") and place as the Trust and the
Purchaser mutually agree upon. At or after the Closing, the Trust shall
deliver to the Purchaser a certificate representing the TrUEPrS purchased
by the Purchaser, registered in the name of the Purchaser or its nominee.
Payment for the TrUEPrS shall be made on the Closing Date by the Purchaser
by bank wire transfer or by delivery of a certified or official bank check,
in either case in immediately available funds, of an amount equal to the
purchase price of the TrUEPrS purchased by the Purchaser.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. The
Purchaser hereby represents and warrants to, and covenants for the benefit of,
the Trust that:
2.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made by the
Trust with the Purchaser in reliance upon the Purchaser's representation to
the Trust, which by the Purchaser's execution of this Agreement the
Purchaser hereby confirms, that the TrUEPrS are being acquired for
investment for the Purchaser's own account, and not as a nominee or agent
and not with a view to the resale or distribution by the Purchaser of any
of the TrUEPrS, and that the Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the TrUEPrS, in
either
- ------------------------------------
SMService mark of Merrill Lynch & Co., Inc.
<PAGE>
case in violation of any securities registration requirement under
applicable law, but subject nevertheless, to any requirement of law that
the disposition of its property shall at all times be within its control.
By executing this Agreement, the Purchaser further represents that the
Purchaser does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participation to such person or
to any third person, with respect to any of the TrUEPrS.
2.2 INVESTMENT EXPERIENCE. The Purchaser acknowledges that it can
bear the economic risk of the investment for an indefinite period of time
and has such knowledge and experience in financial and business matters
(and particularly in the business in which the Trust operates) as to be
capable of evaluating the merits and risks of the investment in the
TrUEPrS. The Purchaser is an "accredited investor" as defined in Rule
501(a) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act").
2.3 RESTRICTED SECURITIES. The Purchaser understands that the
TrUEPrS are characterized as "restricted securities" under the United
States securities laws inasmuch as they are being acquired from the Trust
in a transaction not involving a public offering and that under such laws
and applicable regulations such TrUEPrS may be resold without registration
under the Securities Act only in certain circumstances. In this connection,
the Purchaser represents that it understands the resale limitations imposed
by the Securities Act and is generally familiar with the existing resale
limitations imposed by Rule 144.
2.4 FURTHER LIMITATIONS ON DISPOSITION. The Purchaser further agrees
not to make any disposition directly or indirectly of all or any portion of
the TrUEPrS unless and until:
(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
(b) The Purchaser shall have furnished the Trust with an opinion
of counsel, reasonably satisfactory to the Trust, that such
disposition will not require registration of such TrUEPrS under the
Securities Act.
Notwithstanding the provisions of subsections (a) and (b) above, no
such registration statement or opinion of counsel shall be necessary for a
transfer by the Purchaser to any affiliate of the Purchaser, if the
transferee agrees in writing to be subject to the terms hereof to the same
extent as if it were the original Purchaser hereunder.
2.5 LEGENDS. It is understood that the certificate evidencing the
TrUEPrS may bear either or both of the following legends:
(a) "These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold, offered for
sale, pledged or
2
<PAGE>
hypothecated in the absence of a registration statement in effect with
respect to the securities under such Act or an opinion of counsel
reasonably satisfactory to the Trustees of ANZ Exchangeable Preferred
Trust that such registration is not required."
(b) Any legend required by the laws of any other applicable
jurisdiction.
The Purchaser and the Trust agree that the legend contained in the
paragraph (a) above shall be removed at a holder's request when it is no
longer necessary to ensure compliance with federal securities laws.
2.6 ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the matters contained herein and
supersedes all prior agreements or understandings. No amendment or
modification of this Agreement shall be valid unless the amendment or
modification is in writing and is signed by all parties to this Agreement.
2.7 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
2.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
3
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ANZ EXCHANGEABLE PREFERRED TRUST
By __________________________________
Donald J. Puglisi, as Managing Trustee
ML IBK POSITIONS, INC.
By ___________________________________
Name:
Title:
4
