EXHIBIT 99(K)(11)
DISTRIBUTION TRUST AGREEMENT
of
ANZ DISTRIBUTION TRUST II
Dated as of November ___, 1998
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINED TERMS
Section 1.01. Definitions......................................................... 2
ARTICLE II
THE DISTRIBUTION TRUST
Section 2.01. Name................................................................ 7
Section 2.02. Office of the Delaware Trustee; Principal Place of Business......... 7
Section 2.03. Contribution of Trust Property; Organizational and On-Going Expenses 7
Section 2.04. Declaration of Trust................................................ 8
Section 2.05. Authorization to Enter into Certain Transactions.................... 9
Section 2.06. Assets of Trust..................................................... 11
Section 2.07. Title to Trust Property............................................. 11
ARTICLE III
SECURITIES
Section 3.01. General Provisions Regarding Common Securities........................ 11
Section 3.02. Transfer of Common Securities......................................... 11
ARTICLE IV
PAYMENT ACCOUNTS
Section 4.01. Payment Account....................................................... 12
ARTICLE V
INCOME ENTITLEMENTS
Section 5.01. Income Entitlements................................................... 12
Section 5.02. Payment Procedures.................................................... 14
Section 5.03. Tax Returns and Reports............................................... 14
Section 5.04. Payment of Taxes, Duties, Etc......................................... 14
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Representations and Warranties of the Property Trustee and the
Delaware Trustee...................................................... 15
Section 6.02. Representations and Warranties of Depositor........................... 16
ARTICLE VII
THE DISTRIBUTION TRUSTEES; THE ADMINISTRATORS
Section 7.01. Certain Duties and Responsibilities.................................. 16
Section 7.02. Certain Notices...................................................... 18
Section 7.03. Certain Rights of the Distribution Trustees and Administrators....... 18
Section 7.04. Not Responsible for Recitals......................................... 21
Section 7.05. Compensation; Indemnity; Fees........................................ 21
Section 7.06. Corporate Property Trustee Required; Eligibility of Distribution
Trustees and Administrators.......................................... 22
Section 7.07. Co-Distribution Trustees and Separate Trustee........................ 23
Section 7.08. Resignation and Removal; Appointment of Successor.................... 24
Section 7.09. Acceptance of Appointment by Successor............................... 25
Section 7.10. Merger, Conversion, Consolidation or Succession to Business.......... 26
Section 7.11. Trustee May File Proofs of Claim..................................... 26
Section 7.12. Reports by Property Trustee.......................................... 27
Section 7.13. Number of Distribution Trustees...................................... 27
Section 7.14. Delegation of Power.................................................. 27
Section 7.15. Appointment of Administrators........................................ 28
ARTICLE VIII
DISSOLUTION
Section 8.01. Dissolution Upon Expiration Date..................................... 29
Section 8.02. Early Termination.................................................... 29
Section 8.03. Termination.......................................................... 29
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment........................................................... 30
Section 9.02. Separability........................................................ 31
Section 9.03. Governing Law....................................................... 31
Section 9.04. Income Entitlements Due on Non-Business Day......................... 32
Section 9.05. Successors.......................................................... 32
Section 9.06. Headings............................................................ 32
Section 9.07. Reports, Notices and Demands........................................ 32
Section 9.08. Counterparts........................................................ 33
Distribution Trust Agreement, dated as of November ___, 1998, among
(i) Australia and New Zealand Banking Group Limited (including any
successors or assigns, the "Depositor"), as Depositor and the initial
holder of the Common Securities (as defined herein), (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"), (iii)
Wilmington Trust Company, 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 7.15 hereof to act as administrators with respect to the
Distribution Trust (in such capacities and not in their individual
capacities, the "Administrators"), (v) Aldobrandini (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 II (the "Issuing Trust")
intends to offer (the "Offering") Trust Units Exchangeable for Preference
SharesSM (the "TrUEPrSSM") and use the proceeds of the Offering to purchase
Mandatorily Redeemable Debt Securities due 2048 (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
Aldobrandini (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
preference shares, with a liquidation preference of US$6.25 per share
designated as the 1998 Preference Shares (Series 2) (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 filed with the Secretary of
State of the State of Delaware on November ___, 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 capital contributions to make Distribution Loans (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";
(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;
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(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.
"ADSs Subscription Agreement" means the ADSs subscription agreement,
dated as of November ___, 1998, between the Jersey Subsidiary and the
Depositor.
"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 any obligor of a Distribution Loan.
"ANZ Borrower's Principal Place of Business" means the city in which
the principal place of business of any ANZ Borrower outside of Australia is
located at the relevant time (which initially shall be Wellington, New
Zealand).
"ANZ Preference Shares" means the Preference Shares and any other
securities issued in exchange or substitution for, or a distribution on or
otherwise in respect of, the Preference Shares, whether by or as a result
of a recapitalization, split, combination, reclassification or scheme of
arrangement or otherwise.
"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.
"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
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York or an ANZ Borrower's Principal Place of Business are authorized or
required by law or executive order to close.
"Capital Contributions" has the meaning specified in 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 Delaware which at the time of the execution of this
Distribution Trust Agreement is located at Wilmington Trust Company, ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"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 (i) any loan by the Distribution Trust of
the proceeds of any Capital Contribution made hereunder and (ii) any loan
replacing a loan referred to in clause (i) in whole or in part, each of
which matures on or about January 15, 2053 (unless extended by the parties
thereto).
"Distribution Trust" means the ANZ Distribution Trust II 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.
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"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 January 15, 1999.
"Issuing Trust" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Issuing Trust Agreement" means the amended and restated trust
agreement, dated November 6, 1998, among ML IBK Positions, Inc., as
sponsor, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as Depositor, 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.
"Loan Agreement" means any agreement between the Distribution Trust
and an ANZ Borrower pursuant to which a Distribution Loan is made.
"Note" means any promissory note of the ANZ Borrower evidencing its
obligations under the related Distribution Loan.
"Offering" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Paying Agent" means, initially, the Property Trustee 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
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of (i) the U.K. Company or the ANZ Australian Affiliate, as the case may
be, as the income beneficiaries of the Distribution Trust and (ii) the
holders of the Common Securities, 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 mandatory repurchase 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.
"Quarterly Payment 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 Corporate Trust Administration, 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.
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"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 any
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
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Trust II, as such name may be modified from time to time by the holders of the
Common Securities 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.
Section 2.02. Office of the Delaware Trustee; Principal Place of Business.
-----------------------------------------------------------
The address of the Delaware Trustee in the State of Delaware is care of
Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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 holders of the Common Securities. The
principal executive office of the Distribution Trust is in care of Wilmington
Trust Company, as above, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Account Administrator.
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") in consideration for the issuance of ______________ shares of
Common Securities of the Distribution Trust to the Depositor. The Property
Trustee, on behalf of the Distribution Trust, will acknowledge receipt thereof
and the Distribution Trust will make one or more Distribution Loans in an
aggregate principal amount equal to the amount of the Initial Capital
Contribution. The Depositor shall, from time to time within 30 days from
November __, 1998, contribute any additional proceeds it receives under the ADSs
Subscription Agreement to
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the Distribution Trust and may make additional capital contributions
(collectively, the "Additional Capital Contributions," and together with the
Initial Capital Contribution, the "Capital Contributions") in consideration for
the issuance of additional shares of Common Securities of the Distribution
Trust. 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 obligation of any ANZ Borrower under a Distribution Loan shall be
evidenced by one or more promissory notes (the "Notes"). The Notes shall have an
aggregate principal amount equal to the aggregate principal amount of the
Distribution Loans.
The holders of the Common Securities shall pay all organizational and on-
going reasonable expenses of the Distribution Trust as they arise. The holders
of the Common Securities 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 holders of the
Common Securities 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 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
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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
holders of the Common Securities, 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.
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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, any Loan
Agreement; and
(C) select and engage public accountants;
(D) 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, maintenance of
records and preparation of accounts and statements;
(B) the disbursements of the proceeds from the Capital
Contributions to any ANZ Borrower pursuant to any Loan Agreement and
the receipt of the Notes related thereto;
(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;
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(E) the sending of notices of default and other information
regarding the Notes to the holders 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; and
(G) 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 holders of the Common Securities;
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 (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 any Loan Agreement or in any 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 holders of the Common Securities.
Section 2.06. Assets of Trust.
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The assets of the Distribution Trust shall consist solely of the Trust
Property.
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Section 2.07. Title to Trust Property.
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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 holders of the Common Securities
in accordance with this Distribution Trust Agreement.
ARTICLE III
SECURITIES
Section 3.01. General Provisions Regarding Common Securities.
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(a) The Administrators are hereby authorized to issue Common Securities. Any
Capital Contributions made by the Depositor before the date hereof will be
applied to subscribe for Common Securities. Additional Capital Contributions
made by the Depositor hereunder 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.
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 herein. To the fullest extent
permitted by law, any transfer or purported transfer of any Common Security not
made in accordance with this Distribution Trust Agreement 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
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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 Distribution Trust Agreement.
ARTICLE IV
PAYMENT ACCOUNTS
Section 4.01. Payment Account.
---------------
(a) On or prior to the first date on which the ANZ Preference Shares are issued,
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 holders of the Common Securities, 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.
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 interest payable on the Notes on such Interest Payment Date
(the "Quarterly Payment 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 Payment Amount and the amount paid on the Redemption Payment Date
pursuant to the following sentence. An Income Entitlement shall also be paid on
the Exchange Date for any Exchange Event resulting from a redemption or
mandatory repurchase 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
12
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 dated November __, 1998
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. On the date of any Additional Capital Contribution, any facility fee
payable to the Distribution Trust pursuant to any 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 mandatory repurchase 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
mandatory repurchase 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
any 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 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, the date of any designated Additional
Capital Contribution, each Interest
13
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 expense
of the holders of the Common Securities, 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 holders of the Common Securities all
Internal Revenue Service forms required to be provided by the Distribution
Trust. The Administrators shall provide the holders of the Common Securities
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 any 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 any 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.
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:
14
(a) The Property Trustee is a banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of Delaware,
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
assuming due authorization, execution and delivery hereof by the other parties
hereto, 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
assuming due authorization, execution and delivery hereof by the other parties
hereto, 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 its principal place of business
in the State of Delaware. If at any time during the term of the Distribution
Trust, the Delaware Trustee ceases to have its principal place of business in
Delaware, the Delaware Trustee shall provide notice to the Administrators at
least 60 days in advance and shall cease to be the Delaware Trustee unless
approved by written consent of the Administrators.
(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
15
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
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 holders of the Common Securities, 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 holders of the
Common Securities, 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 holders of the Common Securities, 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 Notes (including any 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
16
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 grossly 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;
(g) The Property Trustee's sole duty with respect to the custody, safe keeping
and physical preservation of the Notes 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;
17
(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 holders of the Common
Securities; 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, the Depositor or the
holders of the Common Securities 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
9.07, 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;
(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
18
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 or the holders of the
Common Securities pursuant to this Distribution Trust Agreement, unless the
Depositor or the holders of the Common Securities 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 or the
holders of the Common Securities, 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 not be liable for the conduct or misconduct of any such
agent or attorney if such agents or attorneys have been selected by such
Distribution Trustee or Administrator with reasonable care;
(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 holders of the Common Securities, (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 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. Neither the Delaware
Trustees nor the Property Trustee or any successor thereto shall be required to
take any action in any jurisdiction other than in the State of Delaware if the
taking of such action will, even after the appointment of a co-trustee or
separate
19
trustee in accordance with Section 7.07 hereof, (i) require the consent or
approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state or
other governmental authority or agency of any jurisdiction other than the State
of Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of the State of Delaware becoming payable by the Distribution Trustee (or
any successor thereto); or (iii) subject any Distribution Trustee (or any
successor thereto) to personal jurisdiction in any jurisdiction other than the
State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by the Distribution Trustee (or any successor
thereto), contemplated hereby. 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.
20
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 holders of the Common Securities agree:
(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.
21
The holders of the Common Securities, 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
holders of the Common Securities, 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 the Distribution
Trust, and the holders of the Common Securities, 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 holders of the Common Securities or any Affiliate of any such holder,
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 holders of the Common
Securities or its respective 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. Subject to
Section 7.15(c), each Administrator shall be appointed by the holders of the
Common Securities and be subject to immediate removal by the holders of the
Common Securities and shall be either a natural person who is at least 21 years
of age 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
22
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, 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 upon the written request of the Property Trustee, the
holders of the Common Securities, 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 holders of the Common Securities 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 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 holders of the Common Securities,
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 holders of the Common Securities, 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.
23
(b) The Property Trustee at any time, by an instrument in writing executed by
it, with the written concurrence of the holders of the Common Securities, 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
holders of the Common Securities, 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.
(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 holders of the Common Securities 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 holders of the Common
Securities, the Distribution Trustees and the Administrators. The holders of
the Common Securities 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 holders of the Common Securities, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The holders of the Common Securities may remove a Distribution Trustee. If
a Distribution Trustee is removed, the holders of the Common Securities 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 holders of
the Common Securities, shall promptly appoint a successor. The holders of the
Common Securities shall have the exclusive right to remove an Administrator.
24
If no successor Relevant Trustee shall have been so appointed by the
holders of the Common Securities 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 holders of the Common Securities 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.
If at any time during the term of the Distribution Trust, the Delaware
Trustee ceases to have its principal place of business in Delaware, the Delaware
Trustee shall provide notice to the Administrators at least 60 days in advance
and shall cease to be the Delaware Trustee unless approved by written consent of
the Administrators.
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 holders of the Common Securities, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by the holders of the Common Securities following the procedures
(with the successor in each case being a Person who satisfies the eligibility
requirements for a Delaware Trustee).
25
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 Notes 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 holders of the
Common Securities 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 Notes
and the Distribution Trust.
Upon request of any such successor Relevant Trustee, the other Distribution
Trustee, the holders of the Common Securities 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. 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
26
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 any 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 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 7.12. 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 holders of the Common Securities, 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.
(b) A copy of each such report shall be filed by the Property Trustee with the
holders of the Common Securities.
Section 7.13. 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.
27
(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 holders of the Common Securities.
(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 7.14. 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 7.15. Appointment of Administrators.
-----------------------------
(a) The Administrators shall be appointed by the Depositor and may be removed by
the holders of the Common Securities 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 holders of the Common Securities 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 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.
28
(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 holders of the Common Securities, incompetent, or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the remaining Administrators, if there were at least two of them
prior to such vacancy, and by the holders of the Common Securities, 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; and
(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.
(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, or cause to be filed, 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.
29
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment.
---------
(a) This Distribution Trust Agreement may be amended from time to time by the
ANZ Australian Affiliate (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 holders of the Common Securities 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 a 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 ANZ Australian Affiliate 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 ANZ Australian Affiliate and the
Administrators, this Distribution Trust Agreement may not be amended in a manner
which imposes any additional obligation on the holders of the Common Securities,
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 ANZ Australian Affiliate shall promptly provide to the Property
Trustee, the Delaware Trustee, the holders of the Common Securities, 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 holders of the Common Securities,
the U.K. Company and the Administrators.
30
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 HOLDERS
OF THE COMMON SECURITIES, 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 HOLDERS OF THE COMMON
SECURITIES, 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.
31
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 holders of the Common
Securities, 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 and the initial holder of the Common Securities 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 holders of the Common
Securities to the Property Trustee. Such notice, demand or other communication
to or upon the holders of the Common Securities shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
holders of the Common Securities.
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 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 Wilmington Trust
Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, (b) with respect to the Delaware Trustee to Wilmington Trust
Company, as above; (c) with respect to the Administrators, to them at: ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; (d) with respect to the
Distribution Trust, to c/o Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; (e) with respect to the
U.K. Company, to Aldobrandini (UK) Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇
32
8HQ, England, Attention: Company Secretary and (f) with respect to the ANZ
Australian Affiliate, to ANZ Funds Pty Ltd., ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Attention: Company Secretary; facsimile
no: 61-3-9273-6142. 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.
33
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
and initial holder of
the Common Securities
By:____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:____________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:_____________________________________
Name:
Title:
ALDOBRANDINI (UK) COMPANY, as
Income Beneficiary
By:______________________________________
Name:
Duly Authorized under Power of Attorney
ANZ FUNDS PTY LTD.,
as Income Beneficiary
By:______________________________________
Name:
Title:
34
Agreed to and Accepted by,
__________________________________________
Name: [▇▇▇▇ ▇▇▇▇▇▇]
Title: Administrator
__________________________________________
Name: [▇▇▇ ▇▇▇▇▇▇]
Title: Administrator
35
Exhibit A
CERTIFICATE OF TRUST
A-1
Exhibit B
FORM OF COMMON SECURITIES
B-1