EXHIBIT 99 (k)(10)
ADSs PURCHASE CONTRACT
This ADSs PURCHASE CONTRACT, dated this ____ day of September, 1998,
between NAB 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 Cuzzano (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 an Amended and Restated Trust
Agreement dated as of September 10, 1998 (the "Trust Agreement");
WHEREAS, the Trust has filed with the Securities and Exchange
Commission a registration statement on Form N-2 (File Nos. 333-60719 and
811-08939) and Pre-Effective Amendments Nos. 1 and 2 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 two fully paid non-cumulative preference shares,
liquidation preference US$12.50 per share (the "NAB Preference Shares"),
issued by National Australia Bank Limited ("NAB") 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, reduction of capital followed by redemption (such reduction and
subsequent redemption, collectively, "Capital Reduction") or buy-back
("Buy-Back")or Capital Reduction of the NAB 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 the aggregate stated liquidation value of the Jersey Preference Shares
so redeemed and (b) to thereby discharge the Jersey Subsidiary from its
obligation to pay cash equal to the aggregate stated liquidation value of the
Jersey Preference Shares so redeemed;
WHEREAS, upon the occurrence of an Exchange Event other than a
redemption, Capital Reduction or Buy-Back of the NAB Preference Shares for cash,
the Jersey Subsidiary desires to sell the ADSs to the Trust as provided in the
preceding recital;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained in this Agreement, the parties hereto agree as
follows:
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-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 (A) the occurrence of an Exchange Event other than
the redemption, Buy-Back or Capital Reduction of the NAB Preference
Shares for cash, (B) the acquisition of the Jersey Preference Shares by
the Trust and (C) the acquisition of the remaining ordinary shares and
all of the nominal shares of the Jersey Subsidiary held by the U.K.
Company, 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 NAB 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 Redemption 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, Buy-Back or Capital Reduction
of the NAB 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
Preference Shares Subscription Agreement, dated September __, 1998,
between the U.K. Company and the Jersey Subsidiary, the Jersey
Subsidiary Ordinary and Nominal Share Subscription Agreement, dated
September ___, 1998, between the U.K. Company and the Jersey
Subsidiary, the Jersey Subsidiary Ordinary Share Subscription
Agreement, dated September __, 1998, between the Jersey Subsidiary and
the Jersey Holding Company, the ADSs Subscription Agreement, dated
September __, 1998, between the Jersey Subsidiary and NAB, the
Management, Company Secretarial and General Administration Agreement,
dated September __, 1998, between the Jersey Subsidiary and Volaw Trust
and Corporate Services Limited, the Jersey Preference Shares Security
and Pledge Agreement, the ADRs Security and Pledge Agreement, the
Expense and Indemnity Agreement and the
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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
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
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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 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 (to the extent necessary to ensure
that the security interest created thereunder is enforceable under
Jersey law) 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 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
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Subsidiary Management Agreement) has legally, validly, effectively and
irrevocably submitted to the non-exclusive personal jurisdiction of the
State of 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 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
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paid to any court, authority or agency of Jersey, the Channel Islands
or any political subdivision thereof.
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
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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.
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: NAB Exchangeable Preferred Trust
c/o Puglisi & Associates
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The Jersey Subsidiary: Cuzzano (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.
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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 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.
NAB EXCHANGEABLE PREFERRED TRUST
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
CUZZANO (INVESTMENTS) LIMITED
By:
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Name:
Title:
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