Exhibit 99(K)(11)
DISTRIBUTION TRUST AGREEMENT
of
ANZ DISTRIBUTION TRUST
Dated as of September __, 1998
Table of Contents
Page
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ARTICLE I
DEFINED TERMS
Section 1.01. Definitions.......................................................... 6
ARTICLE II
THE DISTRIBUTION TRUST
Section 2.01. Name.................................................................. 11
Section 2.02. Office of the Delaware Trustee; Principal Place of Business........... 11
Section 2.03. Contribution of Trust Property; Organizational and On-Going Expenses.. 11
Section 2.04. Declaration of Trust.................................................. 12
Section 2.05. Authorization to Enter into Certain Transactions...................... 13
Section 2.06. Assets of Trust....................................................... 15
Section 2.07. Title to Trust Property............................................... 15
ARTICLE III
SECURITIES
Section 3.01. General Provisions Regarding Common Securities........................ 15
Section 3.02. Transfer of Common Securities......................................... 15
ARTICLE IV
PAYMENT ACCOUNTS
Section 4.01. Payment Account....................................................... 16
ARTICLE V
INCOME ENTITLEMENTS
Section 5.01. Income Entitlements................................................... 16
Section 5.02. Payment Procedures.................................................... 17
Section 5.03. Tax Returns and Reports............................................... 17
Section 5.04. Payment of Taxes, Duties, Etc. of the Distribution Trust.............. 18
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Representations and Warranties of the Property Trustee and the
Delaware Trustee............................................................................................ 18
Section 6.02. Representations and Warranties of Depositor................................................... 19
ARTICLE VII
THE DISTRIBUTION TRUSTEES; THE ADMINISTRATORS
Section 7.01. Certain Duties and Responsibilities........................................................... 19
Section 7.02. Certain Notices............................................................................... 22
Section 7.03. Certain Rights of the Distribution Trustees and Administrators................................ 22
Section 7.04. Not Responsible for Recitals.................................................................. 24
Section 7.05. Compensation; Indemnity; Fees................................................................. 24
Section 7.06. Corporate Property Trustee Required; Eligibility of Distribution Trustees and Administrators.. 25
Section 7.07. Co-Distribution Trustees and Separate Trustee................................................. 26
Section 7.08. Resignation and Removal; Appointment of Successor............................................. 27
Section 7.09. Acceptance of Appointment by Successor........................................................ 28
Section 7.10. Merger, Conversion, Consolidation or Succession to Business................................... 29
Section 7.11. Preferential Collection of Claims Against Depositor........................................... 29
Section 7.12. Trustee May File Proofs of Claim.............................................................. 29
Section 7.13. Reports by Property Trustee................................................................... 30
Section 7.14. Number of Distribution Trustees............................................................... 30
Section 7.15. Delegation of Power........................................................................... 31
Section 7.16. Appointment of Administrators................................................................. 31
ARTICLE VIII
DISSOLUTION
Section 8.01. Dissolution Upon Expiration Date.............................................................. 32
Section 8.02. Early Termination............................................................................. 32
Section 8.03. Termination................................................................................... 32
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment..................................................................................... 33
Section 9.02. Separability.................................................................................. 33
Section 9.03. Governing Law................................................................................. 34
Section 9.04. Income Entitlements Due on Non-Business Day.. ................................................ 35
Section 9.05. Successors.................................................................................... 35
Section 9.06. Headings...................................................................................... 35
Section 9.07. Reports, Notices and Demands.................................................................. 35
Section 9.08. Counterparts.................................................................................. 36
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Distribution Trust Agreement, dated as of _____ __, 1998, among (i)
Australia and New Zealand Banking Group Limited (including any successors
or assigns, the "Depositor"), (ii) Wilmington Trust Company, a Delaware
banking corporation, as property trustee (in such capacity, and including
its successors in interest in such capacity or any successor appointed as
provided herein, the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank"), (iii)
Wilmington Trust Company, a Delaware banking corporation, as Delaware
trustee (in such capacity, and including any successors in interest in such
capacity or any successor Delaware Trustee appointed as provided herein,
the "Delaware Trustee," and together with the Property Trustee, the
"Distribution Trustees"), (iv) the individuals selected by the Depositor
from time to time in accordance with Section 7.16 hereof to act as
administrators with respect to the Distribution Trust (in such capacities
and not in their individual capacities, the "Administrators"), (v)
▇▇▇▇▇▇▇▇ (UK) Company, a special purpose company incorporated with
unlimited liability under the laws of England and Wales (the "U.K.
Company") and (vi) ANZ Funds Pty Ltd., a company organized under the laws
of the Commonwealth of Australia (the "ANZ Australian Affiliate").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the ANZ Exchangeable Preferred Trust (the "Issuing Trust")
intends to offer (the "Offering") Trust Units Exchangeable for Preference
Shares(SM) (the "TrUEPrS(SM)") and use the proceeds of the Offering to
purchase Mandatorily Redeemable Debt Securities due 2047 (the "Debt
Securities"), with an aggregate principal amount equal to such proceeds,
issued by the U.K. Company.
WHEREAS, the U.K. Company intends to use the proceeds from the sale of
the Debt Securities to purchase at a price equal to their liquidation
preference fully paid non-dividend paying preference shares, liquidation
preference US$25 per share (the" Jersey Preference Shares"), issued by
▇▇▇▇▇▇▇▇ (Investments) Limited, an exempt company with limited liability
incorporated under the laws of, and domiciled in, Jersey, Channel Islands
(the "Jersey Subsidiary").
WHEREAS, the Jersey Subsidiary intends to use the proceeds from the
sale of the Jersey Preference Shares to purchase up to _________ American
Depositary Shares ("ADSs"), each representing four fully paid non-
cumulative preference shares, with a liquidation preference of US$6.25 per
share (the "Preference Shares"), of the Depositor at a price per ADS equal
to the aggregate liquidation preference of the four Preference Shares
represented thereby.
---------------------------------
(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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WHEREAS, the Depositor hereby establishes a business trust wholly-
owned by the Depositor (the "Distribution Trust") under the Delaware
Business Trust Act pursuant to this Distribution Trust Agreement and the
Certificate of Trust of the Distribution Trust previously filed with the
Secretary of State of the State of Delaware on September __, 1998 (the
"Certificate of Trust"), which Certificate of Trust is attached hereto as
Exhibit A.
WHEREAS, the Depositor intends to use all the proceeds from the sale
of the Preference Shares to make one or more capital contributions, and may
make other capital contributions to the Distribution Trust.
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
by this Distribution Trust Agreement provide for, among other things, (i)
the use of the Depositor's capital contributions to make the Distribution
Loan (as defined herein) in an aggregate principal amount equal to the
aggregate amount of such capital contributions to one or more ANZ Borrowers
(as defined herein), (ii) the payment of Income Entitlements (as defined
herein) to the U.K. Company or the ANZ Australian Affiliate, as the case
may be, as the income beneficiaries of the Distribution Trust, and (iii)
the appointment of the Administrators.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit
of the other parties, hereby agrees, intending to be legally bound, as
follows:
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions . For all purposes of this Distribution Trust
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Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Issuing Trust
Agreement, either directly or by reference therein, have the meanings
assigned to them therein;
(c) The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
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(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles as in effect at the time of computation;
(e) Unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this
Distribution Trust Agreement; and
(f) The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Distribution Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Additional Capital Contributions" has the meaning specified in
Section 2.03.
"Administrators" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"ANZ Australian Affiliate" has the meaning specified in the preamble
to this Distribution Trust Agreement.
"ANZ Borrower" means each direct or indirect wholly owned subsidiary
of the Depositor and/or the Depositor or a branch of the Depositor, in each
case to whom a Distribution Loan has been made or assigned.
"Bank" has the meaning specified in the preamble to this Distribution
Trust Agreement.
"Board of Directors" means the board of directors of the Depositor or
any committee of the board of directors of the Depositor designated by the
board of directors of the Depositor and comprised of two or more members of
the board of directors of the Depositor.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, and to be in full force and
effect on the date of such certification, and delivered to the Distribution
Trustees.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in Sydney,
Australia, New York, New York or any other city or cities in which the
principal place of business of any ANZ Borrower is located from time to
time (initially Wellington, New Zealand) are authorized or required by law
or executive order to close.
"Capital Contributions" has the meaning specified in the recitals and
Section 2.03 to this Distribution Trust Agreement.
"Certificate of Trust" has the meaning specified in the recitals to
this Distribution Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission or any successor thereto.
"Common Securities" means an undivided beneficial interest in the
assets of the Distribution Trust, having the rights provided therefor in
this Distribution Trust Agreement, including the right to receive
distributions and a liquidation distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached hereto
as Exhibit B.
"Corporate Trust Office" means the principal office of the Property
Trustee located in the City of New York which at the time of the execution
of this Distribution Trust Agreement is located at _____________________.
"Debt Securities" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S)3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Depositor" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Distribution Loan" means each outstanding loan made by the
Distribution Trust to an ANZ Borrower each of which matures on or about
October 15, 2052.
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"Distribution Trust" means the ANZ Distribution Trust governed by this
Distribution Trust Agreement.
"Distribution Trust Agreement" means this Distribution Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all Exhibits
hereto.
"Distribution Trustees" has the meaning specified in the preamble to
this Distribution Trust Agreement.
"Early Termination Event" has the meaning specified in Section 8.02.
"Expiration Date" has the meaning specified in Section 8.01.
"Income Entitlements" means the non-cumulative income payments to the
U.K. Company or the ANZ Australian Affiliate, as the case may be, that they
are entitled to receive as the income beneficiaries of the Distribution
Trust as provided in this Distribution Trust Agreement.
"Indemnified Person" has the meaning specified in Section 7.05.
"Initial Capital Contribution" has the meaning specified in Section
2.03.
"Interest Payment Date" means January 15, April 15, July 15 and
October 15, of each year, commencing on October 15, 1998.
"Issue Date" means, collectively, each original issue date of the
TrUEPrS.
"Issuing Trust" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Issuing Trust Agreement" means the second amended and restated trust
agreement, dated as of September __, 1998, among ML IBK Positions, Inc., as
sponsor, the Trustees of the Issuing Trust and the Holders from time to
time.
"Jersey Preference Shares" has the meaning specified in the recitals
to this Distribution Trust Agreement.
"Jersey Subsidiary" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
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"Loan Agreement" means each agreement, between the Distribution Trust
and an ANZ Borrower, pursuant to which a Distribution Loan is made.
"Notes" means the promissory notes of the ANZ Borrower evidencing, in
the aggregate, its obligations under the Distribution Loan issued pursuant
to the Loan Agreement.
"Offering" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Paying Agent" means initially, ____________________________ or any
paying agent or co-paying agent appointed by the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account of the Property Trustee with the Bank of New York maintained
for the benefit of the U.K. Company or the ANZ Australian Affiliate, as the
case may be, as the income beneficiaries of the Distribution Trust and the
Depositor as the holder of the Common Securities and the residual interest
in the Distribution Trust, in which account all amounts paid in respect of
the Notes will be held and from which the Property Trustee, through the
Paying Agent, shall pay Income Entitlements in accordance with Section
5.01.
"Payment Prohibition" means, with respect to any Income Entitlement
payable to the U.K. Company on any Interest Payment Date (other than in
connection with a redemption or buy-back of the Preference Shares for
cash), (i) an Exchange Event has occurred on or prior to such Interest
Payment Date, (ii) the amount of such Income Entitlement payable on such
Interest Payment Date, together with the aggregate amount of dividends paid
on or before such date during the then current fiscal year of the Depositor
on any preference shares or ordinary shares of the Depositor, would exceed
the Depositor's earnings during the prior fiscal year, or (iii) the payment
of such Income Entitlement would be prohibited or limited by applicable
law, regulation or order or by any instrument or agreement to which the
Depositor is subject.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited partnership, joint venture, association, joint
stock company, company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof,
or any other entity of whatever nature.
"Preference Shares" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Property Trustee" has the meaning specified in the preamble to this
Distribution Trust Agreement.
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"Quarterly Amount" has the meaning specified in Section 5.01.
"Redemption Payment Date" has the meaning specified in Section 5.01.
"Relevant Trustee" has the meaning specified in Section 7.08.
"Responsible Officer" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Property Trustee customarily
performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration
of this Distribution Trust Agreement, and also, with respect to a
particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Securities Act" means the U.S. Securities Act of 1933, as amended,
and any successor statute thereto, in each case as amended from time to
time.
"TrUEPrS" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939 or
any successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Capital Contributions, (b) after the
Distribution Loan is made, the Notes and the Distribution Loan represented
thereby, (c) any payments thereon (including those deposited in the Payment
Account), and (d) all proceeds and rights in respect of the foregoing or
any other property and assets for the time being held or deemed to be held
by the Property Trustee on behalf of the Distribution Trust pursuant to
this Distribution Trust Agreement.
"U.K. Company" has the meaning specified in the preamble to this
Distribution Trust Agreement.
ARTICLE II
THE DISTRIBUTION TRUST
Section 2.01. Name . The Distribution Trust shall be known as "ANZ
----
Distribution Trust," as such name may be modified from time to time by the
Depositor and the Administrators following written notice to the U.K. Company,
the ANZ Australian Affiliate and the Distribution Trustees, in which name the
Administrators and the Distribution Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on behalf
of the Distribution Trust and ▇▇▇ and be sued.
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Section 2.02. Office of the Delaware Trustee; Principal Place of Business.
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The address of the Delaware Trustee in the State of Delaware is
____________________________ , ____________________________ Attention:
______________, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the U.K. Company, the ANZ Australian
Affiliate and the Depositor. The principal executive office of the Distribution
Trust is in care of __________________________________________, Attention:
Office of the Secretary.
Section 2.03. Contribution of Trust Property; Organizational and On-Going
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Expenses .
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The Property Trustee acknowledges receipt in trust from the Depositor in
connection with this Distribution Trust Agreement of the sum of US$1, which
constitutes the initial Trust Property. After the Depositor receives the initial
proceeds under the ADSs Subscription Agreement, the Depositor shall contribute
such proceeds to the Distribution Trust (the "Initial Capital Contribution"),
the Property Trustee, on behalf of the Distribution Trust, will acknowledge
receipt thereof and the Distribution Trust will make a Distribution Loan to an
ANZ Borrower in a principal amount equal to the amount of the Initial Capital
Contribution. The Depositor shall, from time to time within 30 days from
September __, 1998, contribute any additional proceeds it receives under the
ADSs Subscription Agreement to the Distribution Trust and may make additional
capital contributions (collectively, the "Additional Capital Contributions," and
together with the Initial Capital Contribution, the "Capital Contributions").
The aggregate principal amount of the Distribution Loans shall be increased from
time to time by the aggregate amount of any Additional Capital Contributions
received by the Property Trustee on behalf of the Distribution Trust. The
obligations of the ANZ Borrowers under the Distribution Loans shall be evidenced
by one or more promissory notes (the "Notes") in an aggregate principal amount
equal to the aggregate principal amount of the Distribution Loans.
The Depositor shall pay all organizational and on-going reasonable expenses
of the Distribution Trust as they arise. The Depositor shall make no claim upon
the Trust Property for the payment of such expenses.
Section 2.04. Declaration of Trust .
--------------------
The exclusive purposes and functions of the Distribution Trust are to (a)
use the Capital Contributions received to make Distribution Loans to ANZ
Borrowers, (b) distribute Income Entitlements to the U.K. Company or the ANZ
Australian Affiliate, as the case may be, as the income beneficiaries of the
Distribution Trust, in accordance with the terms hereof, (c) upon liquidation of
the Distribution Trust, distribute the residual assets to the Depositor, as the
holder of the Common Securities and the residual interest in the Distribution
Trust and (d) engage in only those other activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Distribution Trustees as
trustees of the Distribution
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Trust, to have all the rights, powers and duties to the extent set forth herein,
and the Distribution Trustees hereby accept such appointment; provided, however,
that after the Exchange Date, the Distribution Trust shall have the power
to change its jurisdiction of organization to any other jurisdiction, whether by
reconstitution, merger, consolidation or otherwise. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Distribution Trust, the
Depositor, the ANZ Australian Affiliate and the U.K. Company. The Depositor
hereby appoints the Administrators, with such Administrators having all rights,
powers and duties set forth herein with respect to accomplishing the purposes of
the Distribution Trust, and the Administrators hereby accept such appointment;
provided, however, that it is the intent of the parties hereto that such
Administrators shall not be trustees or, to the fullest extent permitted by law,
fiduciaries with respect to the Distribution Trust and this Distribution Trust
Agreement shall be construed in a manner consistent with such intent. The
Delaware Trustee shall be one of the Distribution Trustees of the Distribution
Trust for the sole and limited purpose of fulfilling the requirements of Section
3807 of the Delaware Business Trust Act and for taking such actions as are
required to be taken by a Delaware trustee under the Delaware Business Trust
Act, and the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrators set forth herein.
Section 2.05. Authorization to Enter into Certain Transactions .
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(a) The Distribution Trustees and the Administrators shall conduct the
affairs of the Distribution Trust in accordance with the terms of this
Distribution Trust Agreement. Subject to the limitations set forth in paragraph
(b) of this Section and in accordance with the following provisions (i), (ii)
and (iii), the Distribution Trustees and the Administrators shall act as
follows:
(i) Each Administrator, acting singly or jointly, is authorized, on
behalf of the Distribution Trust, to:
(A) execute and deliver an application for a taxpayer
identification number for the Distribution Trust;
(B) execute on behalf of the Distribution Trust any documents
that the Administrators have the power to execute pursuant to this
Distribution Trust Agreement, including without limitation, the Loan
Agreement; and
(C) take any action incidental to the foregoing as necessary or
advisable to give effect to the terms of this Distribution Trust
Agreement (and any actions taken in furtherance of the above prior to
the date of this Distribution Trust Agreement by the Administrators
are hereby ratified and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act on
behalf of the Distribution Trust with respect to the following matters:
(A) the establishment of the Payment Account;
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(B) the disbursements of the proceeds from the Capital
Contributions to the ANZ Borrower pursuant to the Loan Agreement and
the receipt of the Notes;
(C) the receipt and collection of interest, principal and any
other payments made in respect of the Notes and the deposit of such
amounts in the Payment Account;
(D) the distribution of Income Entitlements to the U.K. Company
or the ANZ Australian Affiliate in accordance with the terms of this
Distribution Trust Agreement;
(E) the sending of notices of default and other information
regarding the Notes to the holder of the Common Securities, the ANZ
Australian Affiliate and the U.K. Company in accordance with this
Distribution Trust Agreement;
(F) the distribution of the Trust Property in accordance with the
terms of this Distribution Trust Agreement;
(G) to the extent provided in this Distribution Trust Agreement,
the winding up of the affairs of the Distribution Trust and the
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware; and
(H) after an Exchange Event (as defined in the Issuing Trust
Agreement) (unless such Exchange Event is caused by the Property
Trustee), compliance with the provisions of this Distribution Trust
Agreement and the taking of any action to give effect to the terms of
this Distribution Trust Agreement and protect and conserve the Trust
Property for the benefit of the U.K. Company, the ANZ Australian
Affiliate and the Depositor;
provided, however, that nothing in this Section 2.05(a)(ii) shall require
the Property Trustee to take any action that is not otherwise required by
this Distribution Trust Agreement.
(iii) Each Distribution Trustee, acting singly or jointly, is authorized, on
behalf of the Distribution Trust, to elect to treat the Distribution Trust as an
entity that will be disregarded as an entity separate from its owner for United
States Federal income tax purposes.
(b) So long as this Distribution Trust Agreement remains in effect, the
Distribution Trust (or the Distribution Trustees or Administrators acting
on behalf of the Distribution Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or
contemplated hereby. In particular, neither the Distribution Trustees nor
the Administrators shall
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(i) acquire any investments or engage in any activities not expressly
authorized by this Distribution Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any
of the Trust Property or interests therein, including to the U.K. Company,
except as expressly provided herein, in the Loan Agreement or in the Notes,
(iii) take any action that would reasonably be expected to cause the
Distribution Trust to become taxable as a corporation for United States
Federal income tax purposes, (iv) incur any indebtedness for borrowed money
or issue any other debt, or (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property. The
Property Trustee shall defend all claims and demands of all Persons at any
time claiming any Lien on any of the Trust Property adverse to the interest
of the Distribution Trust, the U.K. Company, the ANZ Australian Affiliate
or the Depositor.
Section 2.06. Assets of Trust.
---------------
The assets of the Distribution Trust shall consist solely of the Trust
Property.
Section 2.07. Title to Trust Property.
-----------------------
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Distribution Trust, the U.K.
Company, the ANZ Australian Affiliate and the Depositor in accordance with this
Distribution Trust Agreement.
ARTICLE III
SECURITIES
Section 3.01. General Provisions Regarding Common Securities.
----------------------------------------------
(a) The Administrators are hereby authorized to issue Common Securities.
Capital contributed by the Depositor before the date hereof will be applied
to subscription of Common Securities. Additional capital contributed by the
Depositor pursuant to the Common Securities Subscription Agreement will be
applied to subscribe for additional Common Securities.
(b) The Distribution Trust may treat the Person in whose name any Common
Securities Certificate shall be registered on the books and records
maintained by or on behalf of the Distribution Trust as the sole owner of
such Common Securities Certificate and the Common Securities represented
thereby for purposes of receiving distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable
or other claims to or interest in such Common Securities Certificate on the
part of any Person, whether or not the Distribution Trust, the Distribution
Trustees or any other Person shall have actual or other notice to the
contrary.
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Section 3.02. Transfer of Common Securities.
-----------------------------
(a) Common Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in the terms of the
Common Securities. Any transfer or purported transfer of any Common
Security not made in accordance with this Declaration shall be null and
void.
(b) The Distribution Trustees shall provide for the registration of the
Common Securities and of the transfer of Common Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Distribution Trustees may require) by the holder thereof in respect of any
tax or other governmental charges that may be imposed in relation to it.
Upon surrender for registration of transfer of any Common Securities
Certificate, the Distribution Trustees shall cause one or more new Common
Securities Certificate to be issued in the name of the designated
transferee or transferees. Every Common Security Certificate surrendered
for registration of transfer shall be accompanied by a written instrument
of transfer in form satisfactory to the Administrators duly executed by the
holder or such holder's attorney duly authorized in writing. Each Common
Security Certificate surrendered for registration of transfer shall be
cancelled by the Distribution Trustees. A transferee of a Common Security
Certificate shall be entitled to the rights and subject to the obligations
of a holder hereunder upon the receipt by such transferee of a Common
Security Certificate. By its acceptance of a Common Security Certificate,
each transferee shall be deemed to have agreed to be bound this
Declaration.
ARTICLE IV
PAYMENT ACCOUNTS
Section 4.01. Payment Account.
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(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and its agents shall have
exclusive control and sole right of withdrawal with respect to the Payment
Account for the purpose of making deposits in, and withdrawals from, the
Payment Account in accordance with this Distribution Trust Agreement. All
monies and other property deposited or held from time to time in the
Payment Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the U.K. Company and the ANZ
Australian Affiliate, as the case may be, as the income beneficiaries of
the Distribution Trust, and the Depositor, and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Notes. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE V
INCOME ENTITLEMENTS
Section 5.01. Income Entitlements.
-------------------
(a) Income Entitlements shall be payable on each Interest Payment Date
in an amount equal to the quarterly interest payable on the Notes on such
Interest Payment Date (the "Quarterly Amount"); provided, however, that the
amount paid on the first Interest Payment Date immediately following any
Redemption Payment Date (as defined below) shall be an amount equal to the
difference between the Quarterly Amount and the amount paid on the Redemption
Payment Date pursuant to the following sentence. An Income Entitlement shall
also be paid on any date on which an Exchange Event occurs as a result of a
redemption or buy-back of the Preference Shares for cash unless such date is an
Interest Payment Date (the "Redemption Payment Date") in an amount equal to the
interest accrued on the Notes from and including the Interest Payment Date
immediately preceding the Redemption Payment Date to but excluding the
Redemption Payment Date. Notwithstanding the foregoing, Income Entitlements
shall only be paid if (i) the Distribution Trust has funds then on hand and
available in the Payment Account for the full payment of such Income
Entitlements and (ii) the Property Trustee has not received from the Depositor
notice of the occurrence of a Payment Prohibition prior to such Interest Payment
Date.
On the date of the Initial Capital Contribution, a facility fee payable to
the Distribution Trust pursuant to the Loan Agreement shall be paid to the
U.K. Company as an Income Entitlement to the extent such facility fee is
received by the Property Trustee, on behalf of the Distribution Trust.
Income Entitlements to be paid (i) prior to the Exchange Date, shall be
paid to the U.K. Company, (ii) after the Exchange Date, shall be paid to
the ANZ Australian Affiliate, (iii) on the Exchange Date as in the case of
an Exchange Event resulting from the redemption or buy-back of the
Preference Shares for cash, shall be paid to the U.K. Company and (iv) on
the Exchange Date other than in the case of an Exchange Event resulting
from the redemption or buy-back of the Preference Shares for cash, to the
ANZ Australian Affiliate.
(b) Notwithstanding anything else in this Section 5.01, (i) the right of
the U.K. Company to receive Income Entitlements will not represent an absolute
ownership interest in the Distribution Trust or the income thereof, but rather
an entitlement to receive interest payments on the Distribution Loan (including
the facility fee) only to the extent such payments are actually distributed as
Income Entitlements, (ii) if any Income Entitlement payable on any Interest
Payment Date is not paid on such date for any reason, the
17
Distribution Trust will have no obligation to pay such Income Entitlement,
whether or not Income Entitlements are paid on any future Interest Payment Date
and (iii) the ANZ Australian Affiliate will be entitled to any Income
Entitlement which is not paid to the U.K. Company prior to the close of business
on the third Business Day after the date on which such Income Entitlement is
payable under Section 5.01(a) and other income, if any, of the Distribution
Trust.
(c) No later than three Business Days prior to any Interest Payment Date
or Redemption Payment Date, the Depositor shall transmit to the Property
Trustee, the Delaware Trustee, the U.K. Company and the ANZ Australian
Affiliate, notice of any Payment Prohibition which will exist on such
Interest Payment Date.
Section 5.02. Payment Procedures.
------------------
Payments of Income Entitlements shall be made by wire transfer on the date
of the Initial Capital Contribution, each Interest Payment Date and, if
applicable, the Redemption Payment Date to the bank account designated by the
U.K. Company or the ANZ Australian Affiliate, as applicable.
Section 5.03. Tax Returns and Reports.
-----------------------
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Distribution Trust. In this regard, the Administrators shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Distribution Trust in each taxable year
of the Distribution Trust and (b) prepare and furnish (or cause to be prepared
and furnished) to the Depositor all Internal Revenue Service forms required to
be provided by the Distribution Trust. The Administrators shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Distribution Trustees shall
comply with United States Federal withholding and backup withholding tax laws
and information reporting requirements with respect to any interest payments
(including the facility fee) received on the Notes from the ANZ Borrower and any
Income Entitlements payable to the U.K. Company or the ANZ Australian Affiliate.
On or before December 15 of each year during which the Note is outstanding,
commencing December 15, 1998, the Administrators shall furnish to the Property
Trustee such information as may be necessary by the Property Trustee in order
that the Property Trustee may prepare the information which it is required to
report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Code.
Section 5.04. Payment of Taxes, Duties, Etc. of the Distribution Trust.
--------------------------------------------------------
The Property Trustee shall promptly pay, or cause the Administrators to pay
in connection with the filing of any tax returns or reports pursuant to Section
5.03, any taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Distribution Trust by the United States or any
other taxing authority.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Representations and Warranties of the Property Trustee and
----------------------------------------------------------
the Delaware Trustee.
--------------------
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor, the ANZ Australian Affiliate and the U.K. Company that:
(a) The Property Trustee is a banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of New
York, with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of this Distribution Trust
Agreement.
(b) The execution, delivery and performance by the Property Trustee of this
Distribution Trust Agreement has been duly authorized by all necessary corporate
action on the part of the Property Trustee; and this Distribution Trust
Agreement has been duly executed and delivered by the Property Trustee, and
constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity and
the discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good
standing as a banking corporation under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of
this Distribution Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee; and this Distribution
Trust Agreement has been duly executed and delivered by the Delaware
Trustee, and constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency,
and other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether
the enforcement of such remedies is considered in a proceeding in equity or
at law).
(e) The Delaware Trustee is an entity which has, and at all times during
the term of the Distribution Trust will maintain, its principal place of
business in the State of Delaware.
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(f) The Property Trustee is a state-chartered bank and at the time of
appointment has securities rated in one of the three highest categories by
a nationally recognized statistical rating organization and has capital and
surplus of at least $50,000,000.
Section 6.02. Representations and Warranties of Depositor.
-------------------------------------------
The Depositor hereby represents and warrants for the benefit of the U.K.
Company and the ANZ Australian Affiliate that there are no taxes, fees or other
governmental charges payable by the Distribution Trust (or the Distribution
Trustees on behalf of the Distribution Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by either the Property Trustee or the Delaware Trustee,
as the case may be, of this Distribution Trust Agreement.
ARTICLE VII
THE DISTRIBUTION TRUSTEES; THE ADMINISTRATORS
Section 7.01. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Distribution Trustees and the
Administrators shall be as provided by this Distribution Trust Agreement.
Notwithstanding the foregoing, no provision of this Distribution Trust
Agreement shall require the Distribution Trustees or the Administrators to
expend or risk their own funds or otherwise incur any financial liability
in the performance of any of their duties hereunder, or in the exercise of
any of their rights or powers, if they shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Distribution Trust Agreement
relating to the conduct or affecting the liability of or affording
protection to the Distribution Trustees or the Administrators shall be
subject to the provisions of this Section. Nothing in this Distribution
Trust Agreement shall be construed to release an Administrator or any of
the Distribution Trustees from liability for its own negligent action, its
own negligent failure to act, its own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties hereunder. To the extent
that, at law or in equity, a Distribution Trustee or Administrator has
duties and liabilities relating to the Distribution Trust, the Depositor,
the ANZ Australian Affiliate or the U.K. Company, such Distribution Trustee
or Administrator shall not be liable to the Distribution Trust, the
Depositor, the ANZ Australian Affiliate or to the U.K. Company for such
Distribution Trustee's or Administrator's good faith reliance on the
provisions of this Distribution Trust Agreement. The provisions of this
Distribution Trust Agreement, to the extent that they restrict the duties
and liabilities of the Distribution Trustees and Administrators otherwise
existing at law or in equity, are agreed by the Depositor, the ANZ
Australian Affiliate and the U.K. Company to replace such other duties and
liabilities of the Distribution Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Income Entitlements shall be made only from the cash received from
interest payments on the
20
Notes (including the facility fee) forming part of the Trust Property and only
if such cash shall be sufficient to enable the Property Trustee or a Paying
Agent to make such payments in full in accordance with the terms hereof. Each of
the U.K. Company and the ANZ Australian Affiliate, by its acceptance of any
Income Entitlements, agrees that it will look solely to such cash to the extent
it is legally available for the payment to it of each Income Entitlement as
herein provided and that neither the Distribution Trustees nor the
Administrators are personally liable to it for any amount paid or payable in
respect of the Income Entitlements or for any other liability in respect of the
Income Entitlements. This Section 7.01(b) does not limit the liability of the
Distribution Trustees or any Paying Agent expressly set forth elsewhere in this
Trust Agreement.
(c) The Distribution Trustees and Administrators shall undertake to perform
only such duties as are specifically set forth in this Distribution Trust
Agreement (including pursuant to Section 7.10), and no implied covenants
shall be read into this Distribution Trust Agreement against the
Distribution Trustees or Administrators.
(d) No provision of this Distribution Trust Agreement shall be construed to
relieve any Distribution Trustee or Administrator from liability for its
own willful misfeasance, bad faith, gross negligence or reckless disregard
of its duties hereunder, except that:
(i) the duties and obligations of the Distribution Trustees and
Administrators shall be determined solely by the express provisions of this
Distribution Trust Agreement (including pursuant to Section 7.10), and the
Distribution Trustees and Administrators shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Distribution Trust Agreement (including pursuant to Section 7.10); and
(ii) in the absence of bad faith on the part of any Distribution
Trustee or Administrator, the Distribution Trustees and Administrators may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to them and conforming to the requirements of this Distribution Trust
Agreement;
(e) No Distribution Trustee or Administrator shall be liable for any error
of judgment made in good faith by an authorized officer of such
Distribution Trustee or Administrator, unless it shall be proved that such
Distribution Trustee or Administrator was negligent in ascertaining the
pertinent facts;
(f) No Distribution Trustee or Administrator shall be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Depositor relating to the time, method
and place of conducting any proceeding for any remedy available to such
Distribution Trustee or Administrator, or exercising any trust or power
conferred upon such Distribution Trustee or Administrator under this
Distribution Trust Agreement;
21
(g) The Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Note and the Payment Account shall
be to deal with such property in a reasonably prudent and similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Distribution Trust Agreement;
(h) The Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree with the Depositor; and
money held by the Property Trustee shall be segregated from other funds
held by and shall be held in the Payment Account maintained by the Property
Trustee pursuant to Section 4.01, except to the extent otherwise required
by law;
(i) The Distribution Trustees and the Administrators shall not be
responsible for monitoring the compliance by the Administrators or the Depositor
with their respective duties under this Distribution Trust Agreement, nor shall
any Distribution Trustee or Administrator be liable for the default or
misconduct of any other Distribution Trustee, the Administrators or the
Depositor; and
(j) No provision of this Distribution Trust Agreement shall require any
Distribution Trustee or Administrator to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if such Distribution
Trustee or Administrator shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Distribution Trust Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
(k) The Distribution Trustees shall elect, on behalf of the Distribution
Trust, to treat the Distribution Trust as an entity that will be disregarded as
an entity separate from its owner for United States Federal income tax purposes.
Section 7.02. Certain Notices.
---------------
Within five Business Days after the occurrence of any Exchange Event
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
7.08, notice of such Exchange Event to the Delaware Trustee and the
Administrators.
Section 7.03. Certain Rights of the Distribution Trustees and
-----------------------------------------------
Administrators.
--------------
Subject to the provisions of Section 7.01:
(a) no Distribution Trustee shall have any duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any re-
recording, refiling or reregistration thereof;
22
(b) any Distribution Trustee or Administrator may consult with counsel of
its own choosing (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice; the Distribution Trustees and Administrators
shall have the right at any time to seek instructions concerning the
administration of this Distribution Trust Agreement from any court of competent
jurisdiction;
(c) no Distribution Trustee or Administrator shall be under any obligation
to exercise any of the rights or powers vested in it by this Distribution Trust
Agreement at the request or direction of the Depositor pursuant to this
Distribution Trust Agreement, unless the Depositor shall have offered to such
Distribution Trustee or Administrator security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided that, nothing contained in
this Section 7.03(c) shall be taken to relieve any Distribution Trustee or
Administrator, upon the occurrence of an Exchange Event, of its obligation to
exercise the rights and powers vested in it by this Distribution Trust
Agreement;
(d) no Distribution Trustee or Administrator shall be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by the Depositor, but any Distribution Trustee and Administrator may
make such further inquiry or investigation into such facts or matters as it
may see fit;
(e) any Distribution Trustee or Administrator may execute any of the trusts
or powers hereunder or perform any of its duties hereunder either directly
or by or through its agents or attorneys, provided that such Distribution
Trustee or Administrator shall be responsible for any willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties on the part
of any such agent or attorney;
(f) whenever in the administration of this Distribution Trust Agreement any
Distribution Trustee or Administrator shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, such Distribution Trustee or Administrator (i) may
request instructions from the Depositor, (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions
are received, and (iii) shall be fully protected in acting in accordance
with such instructions;
(g) except as otherwise expressly provided by this Distribution Trust
Agreement, no Distribution Trustee or Administrator shall be under any
obligation to take any action that is discretionary under the provisions of
this Distribution Trust Agreement. No provision of this Distribution Trust
Agreement shall be deemed to impose any duty or obligation on any
Distribution Trustee or Administrator to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it,
in any jurisdiction in which it shall be illegal, or in
23
which such Distribution Trustee or Administrator shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to any Distribution Trustee or Administrator shall be
construed to be a duty;
(h) if (i) in performing its duties under this Distribution Trust Agreement
any Distribution Trustee or Administrator is required to decide between
alternative courses of action or (ii) in construing any of the provisions of
this Distribution Trust Agreement that such Distribution Trustee or
Administrator finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) such Distribution Trustee or Administrator is unsure
of the application of any provision of this Distribution Trust Agreement, then,
such Distribution Trustee or Administrator shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the course of
action to be taken and such Distribution Trustee or Administrator shall take
such action, or refrain from taking such action, as such Distribution Trustee or
Administrator shall be instructed in writing to take, or to refrain from taking,
by the Depositor; provided, however, that if such Distribution Trustee or
Administrator does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Distribution Trust
Agreement as it shall deem advisable and in the best interests of the
Distribution Trust, in which event such Distribution Trustee or Administrator
shall have no liability except for its own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties;
(i) when any Distribution Trustee or Administrator incurs expenses or
renders services in connection with an Exchange Event, such expenses (including
the reasonable fees and expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights generally; and
(j) no Distribution Trustee or Administrator shall be charged with knowledge
of an Exchange Event unless such Exchange Event has occurred as a result of the
act or failure to act of such Distribution Trustee or Administrator or a
Responsible Officer of such Distribution Trustee or Administrator obtains actual
knowledge of such event or such Distribution Trustee or Administrator receives
written notice of such event.
Section 7.04. Not Responsible for Recitals.
----------------------------
The recitals contained herein shall be taken as the statements of the
Distribution Trust, and the Distribution Trustees and the Administrators do not
assume any responsibility for their correctness.
Section 7.05. Compensation; Indemnity; Fees.
-----------------------------
The Depositor agrees:
24
(a) to pay to the Distribution Trustees from time to time such compensation
for all services rendered by them hereunder as the parties shall agree from time
to time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) to reimburse each Distribution Trustee and Administrator upon request
for all reasonable expenses, disbursements and advances incurred or made by such
Distribution Trustee or Administrator in accordance with any provision of this
Distribution Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties hereunder by such
Distribution Trustee or Administrator; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Distribution Trustee, (ii) each Administrator, (iii) any
Affiliate of any Distribution Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Distribution Trustee, and (v) any
employee or agent of the Distribution Trust, (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person arising out of or in connection with the creation, operation
or dissolution of the Distribution Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Distribution
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by this Distribution
Trust Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties hereunder with respect to such acts or omissions.
The provisions of this Section 7.05 shall survive the termination of this
Distribution Trust Agreement and any resignation or removal of any Distribution
Trustee or Administrator.
No Distribution Trustee or Administrator may claim any lien or charge on,
or any right of set-off with respect to, any Trust Property as a result of any
amount due pursuant to this Section 7.05 or otherwise with respect to this
Agreement or for any other reason.
The Depositor, any Administrator and any Distribution Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Distribution Trust, and the Distribution Trust shall have no rights by virtue of
this Distribution Trust Agreement in and to such independent ventures or the
income or profits derived therefrom, and the pursuit of any such venture, even
if competitive with the business of the Distribution Trust, shall not be deemed
wrongful or improper. Neither the Depositor, any Administrator, nor any
Distribution Trustee shall be obligated to present any particular investment or
other opportunity to the Distribution Trust even if such opportunity is of a
character that, if presented to the Distribution Trust, could be taken by
25
the Distribution Trust, and the Depositor, any Administrator or any Distribution
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Distribution Trustee or Administrator may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depository for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
In the event that the Property Trustee is also acting as Paying Agent
hereunder, the rights and protections afforded to the Property Trustee pursuant
to this Article VII shall also be afforded to such Paying Agent.
Section 7.06. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Distribution Trustees and Administrators.
----------------------------------------
(a) There shall at all times be a Property Trustee hereunder that is a
national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and that has a combined capital and surplus of at least
$50,000,000. If any Property Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Property Trustee shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Property Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. At the time of appointment,
the Property Trustee must have securities rated in one of the three highest
rating categories by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder. Each
Administrator shall be appointed and be subject to immediate removal by the
Depositor and shall be either a natural person who is at least 21 years of
age and a resident of the United States or a legal entity incorporated in
or organized under the laws of the United States or any State thereof that
shall act through one or more persons authorized to bind that entity. An
employee, officer or Affiliate of the Depositor may serve as an
Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of the Delaware Business Trust Act and any other applicable
Delaware law.
Section 7.07. Co-Distribution Trustees and Separate Trustee.
---------------------------------------------
Unless an Exchange Event shall have occurred and be continuing, at any time
or times, for the purpose of meeting the legal requirements of any jurisdiction
in which any part of the Trust Property may at the time be located, the Property
Trustee shall have power to appoint, and
26
upon the written request of the Property Trustee, the Depositor, the other
Distribution Trustee and the Administrators shall for such purpose join with the
Property Trustee in the execution, delivery, and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee and the Depositor either to act as co-trustee, jointly with
the Property Trustee, of all or any part of such Trust Property, or to the
extent required by law to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor, the other Distribution
Trustee or the Administrators be required by any co-trustee or separate trustee
so appointed for more fully confirming to such co-trustee or separate trustee
such property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor, the other
Distribution Trustee and the Administrators.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(b) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under
this Section. Upon the written request of the Property Trustee, the
Depositor, the other Distribution Trustee and the Administrators shall join
with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this
Section.
(c) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee, the other
Distribution Trustee or the Administrators hereunder.
27
(d) No Distribution Trustee or Administrator shall be liable by reason of
any act of a co-trustee or separate trustee or any employees or agents of a
co-trustee and separate trustee nor shall any of them be liable for the
supervision of a co-trustee or separate trustee or employees or agents of a
co-trustee and separate trustee.
(e) Any act of the Depositor delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 7.08. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of any Distribution Trustee (the "Relevant
Trustee") and no appointment of a successor Distribution Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Distribution Trustee in accordance with the applicable requirements of
Section 7.09.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Depositor, the
Distribution Trustees and the Administrators. The Depositor shall appoint a
successor meeting the eligibility requirements set forth herein to serve as the
Relevant Trustee. If the instrument of acceptance by the successor Distribution
Trustee required by Section 7.09 shall not have been delivered to the Relevant
Trustee within 60 days after the giving of such notice of resignation, the
Relevant Trustee may petition, at the expense of the Depositor, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Depositor may remove a Distribution Trustee. If a Distribution Trustee
is removed the Depositor may appoint a successor Distribution Trustee, and such
successor Distribution Trustee shall comply with the applicable requirements of
Section 7.09. If an Administrator is removed, resigns or otherwise vacates
office, the Depositor, shall promptly appoint a successor. The Depositor shall
have the exclusive right to remove an Administrator.
If no successor Relevant Trustee shall have been so appointed by the
Depositor and accepted appointment in the manner required by Section 7.09, any
removed Distribution Trustee, may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
The Depositor shall give notice of each resignation and each removal of a
Distribution Trustee and each appointment of a successor Distribution Trustee to
each other Distribution Trustee and the Administrators in the manner provided in
Section 9.07. Each notice shall include the name of the Distribution Trustee
resigning or so removed or appointed and the address of its Corporate Trust
Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Distribution
Trust Agreement, in the event any Delaware Trustee who is a natural person dies
or becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death,
28
incompetence or incapacity may be filled by the Depositor following the
procedures (with the successor in each case being a Person who satisfies the
eligibility requirements for a Delaware Trustee).
Section 7.09. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each such successor Relevant Trustee shall
execute, acknowledge and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Note and the
Distribution Trust, and (b) shall add to or change any of the provisions of this
Distribution Trust Agreement as shall be necessary to provide for or facilitate
the administration of the Distribution Trust by more than one Relevant Trustee
and upon the execution and delivery of such amendment the resignation or removal
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Depositor or any
successor Relevant Trustee such retiring Relevant Trustee shall, upon payment of
its charges, duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Note and the Distribution Trust.
Upon request of any such successor Relevant Trustee, the other Distribution
Trustee, the Depositor and the Administrators shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 7.10. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Property
Trustee or Delaware Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Property Trustee or
Delaware Trustee, shall be the successor of such Property Trustee or Delaware
Trustee hereunder, provided that such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 7.11. Preferential Collection of Claims Against Depositor.
---------------------------------------------------
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If and when any Distribution Trustee or Administrator shall be or become a
creditor of the Depositor, such Distribution Trustee or Administrator shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor (or any such other obligor) as is required by the
Trust Indenture Act.
Section 7.12. Trustee May File Proofs of Claim.
--------------------------------
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Distribution Trust or the property of the
Distribution Trust, any Distribution Trustee or Administrator shall be entitled
and empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any interest
payments owing and unpaid in respect of the Note and to file such other papers
or documents as may be necessary or advisable in order to have the claims of
such Distribution Trustee or Administrator (including any claim for the
compensation, expenses, disbursements and advances of the such Distribution
Trustee or Administrator, its agents and counsel payable hereunder) allowed in
such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by the Depositor to make
such payments to such Distribution Trustee or Administrator and, in the event
such Distribution Trustee or Administrator shall consent to the making of such
payments directly to the U.K. Company or the ANZ Australian Affiliate, as the
case may be, to pay to such Distribution Trustee or Administrator any amount due
it for the compensation, expenses, disbursements and advances of such
Distribution Trustee or Administrator, its agents and counsel payable hereunder,
and any other amounts due such Distribution Trustee or Administrator under this
Distribution Trust Agreement.
Section 7.13. Reports by Property Trustee.
---------------------------
(a) Not later than January 31 of each year commencing with January 31, 1999,
the Property Trustee shall transmit to the Depositor, a brief report dated as of
the immediately preceding November 30 with respect to:
(i) its eligibility under Section 7.06 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by the
Property Trustee in the performance of its duties hereunder which it has not
previously reported.
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(b) A copy of each such report shall be filed by the Property
Trustee with the Depositor.
Section 7.14. Number of Distribution Trustees.
-------------------------------
(a) The number of Distribution Trustees shall be two. The Property Trustee
and the Delaware Trustee may be the same Person, in which case the number of
Distribution Trustees may be one.
(b) If a Distribution Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with a Distribution Trustee
appointed by the Depositor.
(c) The death, resignation, retirement,removal,bankruptcy,dissolution,
termination, incompetence or incapacity to perform the duties of a Distribution
Trustee shall not operate to dissolve, terminate or annul the Distribution Trust
or terminate this Distribution Trust Agreement.
Section 7.15. Delegation of Power.
-------------------
(a) Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.05(a) or
making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time to
such of their number the doing of such things and the execution of such
instruments either in the name of the Distribution Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Distribution Trust Agreement.
Section 7.16. Appointment of Administrators.
-----------------------------
(a) The Administrators shall be appointed by the Depositor and may be
removed by the Depositor or may resign at any time. The Depositor hereby
appoints ▇▇▇▇ ▇▇▇▇▇▇, Vice President - Finance and Planning of the Depositor,
and ▇▇▇ ▇▇▇▇▇▇, Assistant Vice President - Audit and Compliance of the Depositor
as the initial Administrators, and by their execution of this Distribution Trust
Agreement such individuals hereby accept such appointment. Upon any resignation
or removal, the Depositor shall appoint a successor Administrator. Each
Administrator shall execute this Distribution Trust Agreement thereby agreeing
to comply with, and be legally bound by, all of the terms, conditions and
provisions of this Distribution Trust Agreement. If at any time there is no
Administrator, the Property Trustee may petition any court of competent
jurisdiction for the appointment of one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator in accordance with
this Section 7.16, the
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Administrators in office, regardless of their number (and notwithstanding any
other provision of this Distribution Trust Agreement), shall have all the powers
granted to the Administrators and shall discharge all the duties imposed upon
the Administrators by this Distribution Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this
Distribution Trust Agreement, in the event any Administrator who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent, or
incapacitated, the vacancy created by such death, incompetence competence r
incapacity may be filled by the remaining Administrators, if there were at least
two of them prior to such vacancy, and by the Depositor, if there were not two
such Administrators immediately prior to such vacancy (with the successor in
each case being a Person who satisfies the eligibility requirement for
Administrators, as the case may be, set forth in Section 7.06).
ARTICLE VIII
DISSOLUTION
Section 8.01. Dissolution Upon Expiration Date.
--------------------------------
Unless earlier dissolved, the Distribution Trust shall dissolve and its
affairs wound up at any time selected by the ANZ Australian Affiliate (the
"Expiration Date"), and thereafter the Trust Property shall be distributed in
accordance with Section 8.03.
Section 8.02. Early Termination.
-----------------
The first to occur of any of the following events is an "Early Termination
Event" and the occurrence of which shall cause the dissolution of the
Distribution Trust:
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect
to the Depositor or all or substantially all of its property, or a court or
other governmental agency shall enter a decree or order and such decree or
order shall remain unstayed and undischarged for a period of 60 days;
(b) the entry of an order for dissolution of the Distribution Trust by a
court of competent jurisdiction.
Section 8.03. Termination.
-----------
(a) This Distribution Trust Agreement and the Distribution Trust created
hereby shall terminate as provided in Section 8.01 and 8.02, and the Trust
Property shall be distributed to the Depositor, and this Distribution Trust
shall be of no further force or effect.
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(b) In the event that the Distribution Trust terminates, the Trustees shall
make any distributions required to made pursuant to Section 8.03(a) and
then the Administrators (each of whom is hereby authorized to take such
action) shall file a certificate of cancellation with the Secretary of
State of the State of Delaware terminating the Trust and, upon such filing,
the respective obligations and responsibilities of the Distribution
Trustees, the Administrators and the Distribution Trust shall terminate.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
---------
(a) This Distribution Trust Agreement may be amended from time to time by
the Depositor (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Distribution Trust Agreement, provided, however, that such amendment shall not
adversely affect in any material respect the interests of the Property Trustee,
the Delaware Trustee, the ANZ Australian Affiliate or, prior to the Exchange
Date, the U.K. Company without its written consent or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Distribution Trust will not be taxable as a
corporation for United States Federal income tax purposes at any time that the
Note is outstanding or to ensure that the Distribution Trust will not be
required to register as an investment company under the Investment Company Act.
(b) Notwithstanding any other provisions of this Distribution Trust
Agreement, the Depositor shall not enter into or consent to any amendment to
this Distribution Trust Agreement which would cause the Distribution Trust to
fail or cease to qualify for the exemption from status as an "investment
company" under the Investment Company Act or be taxable as a corporation for
United States Federal income tax purposes.
(c) Notwithstanding anything in this Distribution Trust Agreement to the
contrary, without the consent of the Depositor and the Administrators, this
Distribution Trust Agreement may not be amended in a manner which imposes
any additional obligation on the Depositor, the Administrators, the ANZ
Australian Affiliate and the U.K. Company.
(d) In the event that any amendment to this Distribution Trust Agreement is
made, the Depositor shall promptly provide to the Property Trustee, the
Delaware Trustee, the ANZ Australian Affiliate, the U.K. Company and the
Administrators a copy of such amendment.
(e) Any amendments to this Distribution Trust Agreement, pursuant to Section
9.01(a), shall become effective when notice of such amendment is given to
the Property Trustee, the Delaware Trustee, the ANZ Australian Affiliate,
the U.K. Company and the Administrators.
33
Section 9.02. Separability.
------------
In case any provision in this Distribution Trust Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 9.03. Governing Law.
-------------
THIS DISTRIBUTION TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
U.K. COMPANY, THE ANZ AUSTRALIAN AFFILIATE, THE DISTRIBUTION TRUST, THE
DEPOSITOR, THE DISTRIBUTION TRUSTEES AND THE ADMINISTRATORS SHALL BE GOVERNED BY
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE
APPLICABLE TO THE DISTRIBUTION TRUST, THE DEPOSITOR, THE DISTRIBUTION TRUSTEES,
THE ADMINISTRATORS, THE ANZ AUSTRALIAN AFFILIATE, THE U.K. COMPANY OR THIS
DISTRIBUTION TRUST AGREEMENT ANY PROVISION OF THE LAWS (STATUTORY OR COMMON) OF
THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE DISTRIBUTION
TRUSTEES OR THE ADMINISTRATORS AS SET FORTH OR REFERENCED IN THIS DISTRIBUTION
TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY
TO THE DISTRIBUTION TRUST.
34
Section 9.04. Income Entitlements Due on Non-Business Day.
-------------------------------------------
If the date fixed for any payment of any Income Entitlement is not a
Business Day, then such payment need not be made on such date but may be made on
the next succeeding day that is a Business Day with the same force and effect as
if made on the date on which such payment was originally payable and no interest
or other payments shall accrue on such unpaid amount for the period after such
date.
Section 9.05. Successors.
----------
This Distribution Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to or assignee of the Depositor, the Distribution
Trust, the Administrators, the U.K. Company, the ANZ Australian Affiliate and
any Distribution Trustee, including any successor by operation of law.
Section 9.06. Headings.
--------
The Article and Section headings are for convenience only and shall not
affect the construction of this Distribution Trust Agreement.
Section 9.07. Reports, Notices and Demands.
----------------------------
Any report, notice, demand or other communication that by any provision of
this Distribution Trust Agreement is required or permitted to be given or served
to or upon the Depositor may be given or served in writing by deposit thereof,
first class postage prepaid, in the United States mail, hand delivery or
facsimile transmission the Depositor, to ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, facsimile no.:
_________ or to such other address as may be specified in a written notice by
the Depositor to the Property Trustee. Such notice, demand or other
communication to or upon the Depositor shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Depositor.
Any notice, demand or other communication which by any provision of this
Distribution Trust Agreement is required or permitted to be given or served to
or upon the Property Trustee, the Delaware Trustee, the Administrators, the
Distribution Trust, the U.K. Company or the ANZ Australian Affiliate shall be
given in writing addressed (until another address is published by the
Distribution Trust) as follows: (a) with respect to the Property Trustee to
____________________________, _____________________, New York, NY _____,
Attention: _________________________________________________; (b) with respect
to the Delaware Trustee to ____________________________ , ___________________,
Attention: ____________; (c) with respect to the Administrators, to them at:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; (d) with respect to
the Distribution Trust, to c/o ____________________________________________,
Attention: _________________; (e) with respect to the U.K. Company, to
c/o___________, Attention: _________________ and (f) with
35
respect to the ANZ Australian Affiliate, to _____________, Attention: _________
_____. Such notice,demand or other communication to or upon the Property
Trustee, the Delaware Trustee, the Administrators, the Distribution Trust, the
U.K. Company or the ANZ Australian Affiliate shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
relevant party.
Section 9.08. Counterparts.
------------
This instrument may be executed in any number or counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
36
IN WITNESS WHEREOF, the parties hereto have caused this Distribution
Trust Agreement to be duly executed as of the day and year first above
written.
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED, as Depositor
By:____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee, and
not in its individual capacity
By:____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee, and not
in its individual capacity
By:_____________________________________
Name:
Title:
▇▇▇▇▇▇▇▇ (UK) COMPANY, as
Income Beneficiary
By:______________________________________
Name:
Title:
ANZ FUNDS PTY LTD.,
as Income Beneficiary
By:______________________________________
Name:
Title:
37
Agreed to and Accepted by,
__________________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Administrator
__________________________________________
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Administrator
38
Exhibit A
CERTIFICATE OF TRUST
A-1
Exhibit B
FORM OF COMMON SECURITIES
B-1