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 ▇▇▇▇▇▇▇▇ (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 ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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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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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The Jersey Subsidiary: ▇▇▇▇▇▇▇▇ (Investments) Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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:_________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
▇▇▇▇▇▇▇▇ (INVESTMENTS) LIMITED
By:_________________________
Name:
Title:
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