EXHIBIT 99 (k)(5)
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NAB EXCHANGEABLE PREFERRED TRUST
JERSEY PREFERENCE SHARES SECURITY AND PLEDGE AGREEMENT
Dated: September __, 1998
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Table of Contents
Page
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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...............................................6
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.........................................8
(d) Rights and Remedies Under the Uniform Commercial Code..........8
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......................................................11
(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
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(e) Waiver of Jury Trial..........................................16
(f) Governing Law.................................................16
(g) Headings......................................................16
(h) Entire Agreement..............................................16
(i) Counterparts..................................................16
(j) Force Majeure.................................................16
(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................................................17
16. Judgement Currency.....................................................18
17. Waiver of Immunities...................................................18
EXHIBIT A Notice of Assignment
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JERSEY PREFERENCE SHARES SECURITY AND PLEDGE AGREEMENT
This Security and Pledge Agreement (the "Agreement") is made as of September
__, 1998 among NAB 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"), Cuzzano (UK) Company, a special purpose company with unlimited
liability incorporated under the laws of England and Wales and domiciled in, the
United Kingdom (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. 333-60719 and 811-08939) and
Pre-Effective Amendments No. 1 and 2 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 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) if the Exchange Event is the
redemption, mandatory repurchase ("Buy-Back") or reduction of capital
followed by redemption ("Capital Reduction") of the NAB 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 an Amended and Restated Trust Agreement,
dated as of September 10, 1998 (the "Trust Agreement"), among the trustees of
the Trust, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as depositor, 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 up to _________ fully
paid non-dividend paying preference
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-SM- Service mark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
shares, liquidation preference US$25 per share (the "Jersey Preference Shares"),
issued by Cuzzano (Investment) Limited (the "Jersey Subsidiary").
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 NAB in consideration of the issuance by the ADR
depositary of ADRs evidencing up to ________ ADSs each of which represents two
NAB Preference Shares deposited by NAB.
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, or the Trust, as holder of
the Jersey Preference Shares 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:
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"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.
"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.
"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.
"NAB" has the meaning specified in the first recital in this Agreement.
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"NAB Preference Shares" has the meaning specified in the first recital in
this Agreement.
"Offering" has the meaning specified in the first recital in this Agreement.
"Pledgor" has the meaning specified in the introductory paragraph of this
Agreement.
"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.
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"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.
"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
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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 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
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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. (a) The Collateral shall be maintained by the
Collateral Agent 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 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
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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 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
8
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 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
9
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 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;
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(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
(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.
11
(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
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 willful 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.
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(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 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
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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 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
▇▇▇▇▇▇▇▇▇▇ 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)):
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Pledgor: Cuzzano (UK) Company
One Silk Street
London EC2Y8HQ
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Collateral Agent: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Trust: c/▇ ▇▇▇▇▇▇▇ & Associates
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 19715
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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.
15
(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, 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.
16
(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.
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 System as its authorized agent (the "Authorized Agent")
upon which process may be instituted in any State or
17
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 System 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 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
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.
CUZZANO (UK) COMPANY
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Collateral Agent
By:
-----------------------------------
Name:
Title:
NAB EXCHANGEABLE PREFERRED TRUST
By:
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Managing Trustee
19
Exhibit A
NOTICE OF ASSIGNMENT
(Cuzzano (UK) Company)
September __, 1998
To: Cuzzano (Investments) Limited
Dear Sirs,
We hereby give you notice that by an agreement dated September __, 1998,
Cuzzano (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 NAB 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
Cuzzano (UK) Company
Director
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