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 NAB 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 an
Amended and Restated Trust Agreement by and among ML IBK Positions, Inc., as
sponsor, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as depositor, the Trustees named therein and the
Holders from time to time, dated as of September 10, 1998 (the "Trust
Agreement").
W I T N E S S E T H
WHEREAS, the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act"), created for the purposes of issuing
the Trust's Trust Units Exchangeable for Preference Shares-SM- (the
"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 Cuzzano
(UK) Company (the "U.K. Company");
WHEREAS, the Trust desires to engage the services of the Paying Agent
to assume certain responsibilities and to perform certain duties as the paying
agent, transfer agent and registrar with respect to the TrUEPrS upon the terms
and conditions of this Agreement; and
WHEREAS, the Paying Agent is qualified and willing to assume such
responsibilities and to perform such duties, subject to the supervision of the
Trust, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the respective meanings specified in the Trust Agreement.
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-SM- Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
ARTICLE II
PAYING AGENT
2.1 APPOINTMENT OF PAYING AGENT AND ACCEPTANCE. The Trust Agreement
provides that The Bank of New York shall act as the initial Paying Agent. The
Bank of New York accepts such appointment and agrees to act in accordance with
its standard procedures and the provisions of the Trust Agreement and the
provisions set forth in this Article II as Paying Agent with respect to the
TrUEPrS. Without limiting the generality of the foregoing, The Bank of New York,
as Paying Agent, agrees that it shall establish and maintain the Trust Account,
subject to the provisions of Section 2.3 hereof.
2.2 CERTIFICATES AND NOTICES. The Trust shall deliver to the Paying
Agent the certificates and notices required to be delivered to the Paying Agent
pursuant to the Trust Agreement, and the Paying Agent shall mail or publish such
certificates or notices as required by the Trust Agreement, but the Paying Agent
shall have no responsibility to confirm or verify the accuracy of certificates
or notices of the Trust so delivered.
2.3 PAYMENTS AND INVESTMENTS. The Paying Agent shall make payments out
of the Trust Account as provided for in Section 3.02 of the Trust Agreement. The
Paying Agent shall make payments for any of the Trust's ongoing expenses out of
a separate expense account as provided for in Section 3.05 of the Trust
Agreement. The Paying Agent on behalf of the Trust shall take the actions set
forth in Sections 2.06, 2.07, 3.02, 3.04, 3.05, 7.02 and 7.03 of the Trust
Agreement upon instructions to do so from the Administrator of the
Administration Agreement (except that with respect to its obligations under
Section 7.03 of the Trust Agreement, the Paying Agent shall act without
instructions from the Administrator).
2.4 INSTRUCTIONS FROM ADMINISTRATOR. The Paying Agent shall receive and
execute all instructions from the Administrator, except to the extent they
conflict with or are contrary to the terms of the Trust Agreement or this
Agreement. In such cases wherein the Administrator and the Paying Agent are the
same party, the Paying Agent shall act in conjunction with the duties it agreed
to and responsibilities it accepted in the Administration Agreement.
ARTICLE III
TRANSFER AGENT AND REGISTRAR
3.1 ORIGINAL ISSUE OF CERTIFICATES. On the date the TrUEPrS sold
pursuant to the Purchase Agreement are originally issued, certificates for the
TrUEPrS shall be issued by the Trust, and, at the written request of the Trust,
registered in such names and such denominations as the Underwriters shall have
previously requested of the Trust, executed manually or in facsimile by the
Managing Trustee and countersigned by the Paying Agent. At no time shall the
aggregate number of TrUEPrS represented by such countersigned certificates
exceed the number of then outstanding TrUEPrS, except as permitted by Section
3.4 hereof.
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3.2 REGISTRY OF HOLDERS. The Paying Agent shall maintain a registry of
the Holders of the TrUEPrS.
3.3 REGISTRATION OF TRANSFER OF THE TrUEPrS. The TrUEPrS shall be
registered for transfer or exchange, and new certificates shall be issued, in
the name of the designated transferee or transferees, upon surrender of the old
certificates if the requirements of Section 8-401 of the New York Uniform
Commercial Code are met.
3.4 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 protected
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 protected 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 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 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
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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.
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.
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(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
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
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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 Expense and Indemnity Agreement and Trust Expense 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 particular party as shall be specified by such party in
a like notice given pursuant to this Section 6.2):
The Trust: NAB Exchangeable Preferred Trust
c/o Puglisi & Associates
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Paying Agent: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notice, request or other communication given by any party
under this Agreement shall be directed to the Administrator if the duties of the
Administrator are being performed by a Person other than the Person performing
the obligations of the Paying Agent. Except for communications authorized to be
made by telephone pursuant to this Agreement, each such notice, request or
communication shall be in writing and shall be deemed to have been duly given if
either (i) personally delivered (including delivery by courier service or by
Federal Express or any other nationally recognized overnight delivery service
for next day delivery in the United States) to the offices set forth above, in
which case they shall be deemed received on the first Business Day by which
delivery shall have been made to said offices, (ii) transmitted by any standard
form of telecommunication to the offices set forth above, in which case they
shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case delivery shall be deemed to
have been received on the first Business Day on which such acknowledgment is
refused). Communications shall be given by the Trust or by the Administrator,
provided that the Trust shall not have delivered previously to the Paying Agent
an instrument in writing revoking the authorization of the Administrator to act
for it pursuant hereto).
6.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings,
oral, written or inferred, between the parties relating to the subject matter
hereof.
6.4 NO THIRD PARTY BENEFICIARIES. Nothing herein, express or implied,
shall give to any Person, other than the Trust, the Paying Agent and their
respective successors and permitted assigns, any benefit of any legal or
equitable right, remedy or claim hereunder.
6.5 AMENDMENT; WAIVER. (a) This Agreement shall not be deemed or
construed to be modified, amended, rescinded, cancelled or waived, in whole or
in part, except by a written instrument signed by a duly authorized
representative of each party hereto. The
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
NAB EXCHANGEABLE PREFERRED TRUST
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
as Managing Trustee
THE BANK OF NEW YORK
By:
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Name:
Title:
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