EXHIBIT 99(A)(2)
SECOND AMENDED AND RESTATED
TRUST AGREEMENT
CONSTITUTING
ANZ EXCHANGEABLE PREFERRED TRUST II
Dated as of November [ ], 1998
TABLE OF CONTENTS
PAGE
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ARTICLE I.
DEFINITIONS
Section 1.01. DEFINITIONS.................................................................................. 2
ARTICLE II.
TRUST DECLARATION; PURPOSES, POWERS AND DUTIES OF THE TRUSTEES;
ADMINISTRATION
Section 2.01. NAME...................................................................................... 9
Section 2.02. OFFICE.................................................................................... 9
Section 2.03. RATIFICATION AND APPROVAL OF ACTION OF THE TRUSTEES....................................... 9
Section 2.04. DECLARATION OF TRUST; PURPOSES OF THE TRUST............................................... 9
Section 2.05. GENERAL POWERS AND DUTIES OF THE TRUSTEES................................................. 10
Section 2.06. PORTFOLIO ACQUISITION..................................................................... 11
Section 2.07. PORTFOLIO ADMINISTRATION.................................................................. 12
Section 2.08. LIMITATIONS ON TRUSTEES' POWERS........................................................... 13
ARTICLE III.
ACCOUNTS AND PAYMENTS
Section 3.01. THE TRUST ACCOUNT......................................................................... 13
Section 3.02. DISTRIBUTIONS TO HOLDERS.................................................................. 14
Section 3.03. SEGREGATION............................................................................... 14
Section 3.04. EXPENSES.................................................................................. 14
Section 3.05. APPLICATION OF PAYMENTS UNDER TRUST EXPENSE AGREEMENT AND EXPENSE AND INDEMNITY AGREEMENT. 14
ARTICLE IV.
REDEMPTION
Section 4.01. REDEMPTION................................................................................. 15
ARTICLE V.
ISSUANCE OF CERTIFICATES; REGISTRY; TRANSFER OF TrUEPrS
Section 5.01. FORM OF CERTIFICATE...................................................................... 15
Section 5.02. TRANSFER OF TrUEPrS; ISSUANCE, TRANSFER AND EXCHANGE OF CERTIFICATES..................... 16
Section 5.03. REPLACEMENT OF CERTIFICATES.............................................................. 17
Section 5.04. LIMITATION ON LIABILITY.................................................................. 17
Section 5.05. GENERAL PROVISIONS REGARDING THE TrUEPrS................................................. 17
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ARTICLE VI.
TRUSTEES
Section 6.01. TRUSTEES......................................... 18
Section 6.02. VACANCIES........................................ 18
Section 6.03. POWERS........................................... 18
Section 6.04. MEETINGS......................................... 18
Section 6.05. RESIGNATION AND REMOVAL.......................... 19
Section 6.06. LIABILITY........................................ 19
Section 6.07. COMPENSATION..................................... 20
ARTICLE VII.
MISCELLANEOUS
Section 7.01. MEETINGS OF HOLDERS.............................. 20
Section 7.02. BOOKS AND RECORDS; REPORTS....................... 21
Section 7.03. DISSOLUTION...................................... 22
Section 7.04. AMENDMENT AND WAIVER............................. 22
Section 7.05. ACCOUNTANTS...................................... 23
Section 7.06. NATURE OF HOLDER'S INTEREST...................... 24
Section 7.07. NO RECOURSE...................................... 24
Section 7.08. ENFORCEMENT OF RIGHTS............................ 24
Section 7.09. DELAWARE LAW TO GOVERN........................... 25
Section 7.10. NOTICES.......................................... 25
Section 7.11. SEVERABILITY..................................... 25
Section 7.12. COUNTERPARTS..................................... 25
Section 7.13. SUCCESSORS AND ASSIGNS........................... 25
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SECOND AMENDED AND RESTATED TRUST AGREEMENT
This Second Amended and Restated Trust Agreement, dated as of November
[ ], 1998 (the "Trust Agreement"), by and among ML IBK Positions, Inc., as
sponsor (the "Sponsor"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III and ▇▇▇▇▇ ▇.
▇'▇▇▇▇▇, as trustees (the "Trustees"), and the Holders (as defined herein) from
time to time, constituting ANZ Exchangeable Preferred Trust II (the "Trust").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as depositor (the "Depositor"), and the
Trustees, have previously entered into a Trust Agreement dated as of October 13,
1998 (the "Original Agreement"), and the Trustees have filed a Certificate of
Trust, dated as of October 13, 1998, with the office of the Secretary of State
of the State of Delaware on October 13, 1998 and have filed a Restated
Certificate of Trust on November 5, 1998, thus creating ANZ Exchangeable
Preferred Trust II (formerly DEF Exchangeable Preferred Trust);
WHEREAS, on November 6, 1998 the Depositor and the parties to this Trust
Agreement amended and restated the Original Agreement (the "First Restatement");
WHEREAS, the Depositor, simultaneously with the execution of the First
Restatement, transferred all of her right, title and interest in and to ANZ
Exchangeable Preferred Trust II to the Sponsor;
WHEREAS, in the First Restatement the Trustees ratified and approved the
transfer of the interest of the Depositor in ANZ Exchangeable Preferred Trust II
to the Sponsor;
WHEREAS, the Trust, which was previously known as DEF Exchangeable
Preferred Trust, changed its name to ANZ Exchangeable Preferred Trust II
pursuant to a Restated Certificate of Trust that was dated November 4, 1998 and
filed with the Secretary of State of the State of Delaware on November 5, 1998;
WHEREAS, concurrently with the execution and delivery of the First
Restatement, the Trust issued 4,000 Trust Units Exchangeable for Preference
SharesSM ("TrUEPrSSM") to the Sponsor in consideration of the aggregate purchase
price therefor of US$100,000, in satisfaction of the requirements of Section
14(a)(1) under the Investment Company Act (as defined herein);
WHEREAS, the parties hereto desire to amend and restate the First
Restatement in its entirety; and
NOW, THEREFORE, the parties hereto agree to amend and restate the First
Restatement in its entirety as provided herein. Upon the execution and delivery
of counterpart signature pages hereto by the parties hereto, the First
Restatement will be automatically amended and restated in its entirety to read
as provided herein.
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/SM/ Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
ARTICLE I.
DEFINITIONS
Section 1.01. DEFINITIONS. Whenever used in this Trust Agreement, the
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following words and phrases shall have the meanings listed below. Any reference
to any agreement shall be a reference to such agreement as supplemented or
amended from time to time.
"Administration Agreement" means the Administration Agreement dated as of
the first Issue Date, between the Administrator and the Trust and any substitute
agreement therefor entered into pursuant to Section 2.05(a) hereof.
"Administrator" means The Bank of New York or its successor as permitted
under Section 6.1 of the Administration Agreement or appointed pursuant to
Section 2.05(a) hereof.
"ADRs" means the American Depositary Receipts evidencing the ADSs issued
pursuant to the Deposit Agreement.
"ADRs Purchase Contract" means the ADRs Purchase Contract, dated as of the
first issue date of the ANZ Preference Shares, between the Trust and the Jersey
Subsidiary.
"ADSs" means the American Depositary Shares each of which represents four
ANZ Preference Shares.
"ANZ Affiliate" means ANZMB Limited, a limited liability company
incorporated under the laws of England and Wales and an affiliate of the
Company.
"ANZ Borrower" means any obligor of an ANZ 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 Loan" means (i) any loan by the Distribution Trust of the proceeds of
any Capital Contribution made under the Distribution Trust Agreement 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).
"ANZ Loan Agreement" means each agreement between the Distribution Trust
and an ANZ Borrower pursuant to which an ANZ Loan is made.
"ANZ Preference Shares" means the fully paid preference shares, liquidation
preference US$6.25 per share, issued by the Company and designated as the 1998
Preference Shares (Series 2), and any other securities issued in exchange or
substitution for, or as a distribution on or otherwise in respect of, such
shares, whether by or as a result of a recapitalization, split, combination,
reclassification or scheme of arrangement or otherwise.
"APRA" means the Australian Prudential Regulation Authority, or any
successor or replacement body to which the Company is required to report the
capital adequacy ratios referred to in the definition of Exchange Event.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday or Friday
which is not a day on which banking institutions in Sydney, Australia, New York,
New York or any ANZ Borrower's Principal Place of Business are authorized or
obliged by law or executive order to close.
"Capital Contribution" has the meaning set forth in the Distribution Trust
Agreement.
"Certificate" means any certificate evidencing the ownership of TrUEPrS
substantially in the form of Exhibit A1 or A2 hereto.
"Closing Time" has the meaning specified in the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time; each reference herein to any section of the Code or any regulation
thereunder shall constitute a reference to any successor provision thereto.
"Collateral Agent" means The Bank of New York or its successor as permitted
under the Security and Pledge Agreements or appointed pursuant to Section
2.05(a) hereof.
"Commission" means the United States Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Trust Agreement such Commission is not existing or
performing the duties now assigned to it, then the body performing such duties
on such date.
"Company" means Australia and New Zealand Banking Group Limited, a
corporation organized under the laws of the State of Victoria, Commonwealth of
Australia, or any surviving entity or subsequent surviving entity of the
Company.
"Custodian" means The Bank of New York or its successor as permitted under
Section 11 of the Custodian Agreement or appointed pursuant to Section 2.05(a)
hereof.
"Custodian Agreement" means the Custodian Agreement, dated as of November
6, 1998, between the Custodian and the Trust and any substitute agreement
therefor entered into pursuant to Section 2.05(a) hereof.
"Date of Delivery" has the meaning specified in the Purchase Agreement.
"Debt Securities" means the Mandatorily Redeemable Debt Securities due 2048
issued by the U.K. Company.
"Debt Securities Subscription Agreement" means the Debt Securities
Subscription Agreement between the Trust and the U.K. Company as amended
pursuant to the terms thereof.
"definitive Certificate" means a Certificate in the form of Exhibit A-2
hereto, which shall be issued to Holders other than DTC or its nominee.
"Deposit Agreement" means a deposit agreement, dated as of the first issue
date of the ANZ Preference Shares, between the Company and The Bank of New York
or its successor, as depositary for the ANZ Preference Shares (the
"Depositary").
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"Depositor" has the meaning specified in the recitals hereof.
"Distribution Trust" means the business trust established under the laws of
the State of Delaware pursuant to the Distribution Trust Agreement.
"Distribution Trust Agreement" means the distribution trust agreement among
the U.K. Company, the depositor, the distribution trustees, the administrators
thereof and the ANZ Australian Affiliate named therein.
"Dividend Payment Date" means January 15, April 15, July 15 and October 15
of each year, commencing January 15, 1999.
"DTC" means The Depository Trust Company or any successor thereto.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time; each reference herein to any section of such Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"Exchange Date" is the date specified as such with respect to any
particular Exchange Event in the definition thereof.
"Exchange Event" means the earliest to occur of any of the following dates
or events, which shall constitute an "Exchange Event" as of the "Exchange Date"
specified below:
(i) January 15, 2048 or the date of any earlier redemption or mandatory
repurchase ("Buy-Back") of the ANZ Preference Shares for cash, in
which case the Exchange Date will be the earlier of such dates;
(ii) any date selected by the Company in its absolute discretion, in
which case the Exchange Date will be such date;
(iii) the failure of the Trust to receive for any reason on or within
three Business Days after an Interest Payment Date the interest then
due on the Debt Securities in full without deduction or withholding
for any taxes, duties or other charges, in which case the Exchange
Date will be the fourth Business Day following such Interest Payment
Date;
(iv) the Tier 1 Capital Ratio or the Total Capital Adequacy Ratio of the
Company (either as reported quarterly by the Company to APRA or as
determined at any time by APRA in its absolute discretion) is below
4% or 8%, respectively, or, in each case, such lesser percentage as
may be prescribed by APRA for the Company at the time (the
applicable percentage in each such case being the "Required
Percentage"), and is not increased by the Company to at least the
Required Percentage within 90 days after the date on which the
Company makes such quarterly report or receives notice from APRA of
such determination by APRA, as applicable, in which case the
Exchange Date will be the Business Day immediately following the
expiration of such 90-day period;
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(v) any change in (A) the legal ownership of the securities (other than
the Debt Securities) issued by, (B) any provision of the constituent
documents of (unless such change has been consented to by the record
holders of more than 50% of the TrUEPrS or, in the opinion of
competent legal counsel selected by the Trust, such change would not
have a material adverse effect on the rights of the holders of the
TrUEPrS), or (C) the business purpose (or, solely with respect to
the Jersey Charitable Trust, the powers of the trustees thereof) (as
specified in the constituent documents) of, any of the U.K. Company,
the Jersey Holding Company, the Jersey Charitable Trust or the
Jersey Subsidiary, in which case the Exchange Date will be the date
on which the change occurs;
(vi) any change in the business purpose of the Distribution Trust (as
specified in the constituent documents), in which case the Exchange
Date will be the date on which the change occurs;
(vii) the common securities of the Distribution Trust cease to be wholly-
owned by the Company or a direct or indirect wholly-owned subsidiary
or branch of the Company, in which case the Exchange Date will be
the date on which the common securities of the Distribution Trust
cease to be wholly-owned by the Company or a direct or indirect
wholly-owned subsidiary or branch of the Company;
(viii) any ANZ Borrower ceases to be the Company or a direct or indirect
wholly-owned subsidiary or branch of the Company, in which case the
Exchange Date will be the date on which such ANZ Borrower ceases to
be the Company or a direct or indirect wholly-owned subsidiary or
branch of the Company;
(ix) (A) a proceeding is commenced by the Company, the U.K. Company, the
Jersey Holding Company, the Jersey Charitable Trust, the Jersey
Subsidiary, the Distribution Trust or any ANZ Borrower (each, a
"Relevant Entity") or a person that controls such Relevant Entity
for an order that such Relevant Entity be wound up or for the
appointment of a provisional liquidator, liquidator, administrator,
controller or similar official in respect of such Relevant Entity or
all or substantially all of its property, in which case the Exchange
Date will be the date on which the proceeding is filed; (B) a
proceeding is commenced by any other person for an order that a
Relevant Entity be wound up or for the appointment of a provisional
liquidator, liquidator, administrator, controller or similar
official in respect of such Relevant Entity or all or substantially
all of its property (unless such proceeding is discontinued or
dismissed within 21 days of its having been filed), in which case
the Exchange Date will be the Business Day immediately following the
expiration of such 21-day period; (C) a provisional liquidator,
liquidator, administrator, controller or similar official is
appointed whether by a court or otherwise in respect of any Relevant
Entity or all or substantially all of its property (unless any such
appointment is revoked or set aside within 21 days of such
appointment), in which case the Exchange Date will be the Business
Day immediately following the expiration of such 21-day period; or
(D) the Trust dissolves in accordance with the terms hereof or for
any other
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reason, in which case the Exchange Date will be the Business Day
immediately preceding the effective date of such dissolution; and
(x) the Collateral Agent fails, at any time, to have a valid first,
perfected and enforceable security interest in, and lien on, the
Jersey Preference Shares and the ADRs, and any redemption proceeds
from any of the foregoing, and such failure is not remedied on or
before ten Business Days after written notice of such failure is
given to the U.K. Company or the Jersey Subsidiary, as the case may
be, by the Collateral Agent as contemplated by the Security and
Pledge Agreements, in which case the Exchange Date will be the
Business Day immediately following the expiration of such ten
Business Day period.
Notwithstanding the foregoing, any ANZ Borrower may, with the consent of
the Distribution Trust, assign its ANZ Loan or the Distribution Trust may
replace any ANZ Loan with another loan, in each case, to the Company or to one
or more direct or indirect wholly-owned subsidiaries or branches of the Company
with prospective payment terms identical to, and other terms substantially the
same as, those of such ANZ Loan, in which case the Company or such other
subsidiary or branch and loan will be deemed to be such ANZ Borrower and such
ANZ Loan, respectively, and any such action will not constitute an Exchange
Event.
"Exchange Rate Condition" means, in connection with any Exchange Event
resulting from the redemption or Buy-Back of the ANZ Preference Shares for cash,
that the value, for purposes of calculating United Kingdom tax on capital gains,
of one U.S. dollar (or the equivalent thereof in any successor legal currency of
the United States) in terms of British pounds (or the equivalent thereof in any
successor legal currency of the United Kingdom) (expressed in (Pounds)/US$) (the
"Dollar Value") on the Exchange Date with respect to such Exchange Event is less
than or equal to the Dollar Value on every date on which ANZ Preference Shares
are issued.
"Expense and Indemnity Agreement" means the Expense and Indemnity
Agreement, dated as of the first issue date of the ANZ Preference Shares, among
the Trust, the ANZ Affiliate, the U.K. Company, the Jersey Subsidiary, the
Jersey Holding Company and the Jersey Charitable Trust as amended pursuant to
the terms thereof.
"global Certificate" shall mean a Certificate in the form of Exhibit A-1
hereto, which shall be issued only to DTC or its nominee.
"Holder" means the person in whose name any TrUEPrS are recorded on the
register maintained by the Paying Agent.
"Interest Payment Date" means January 15, April 15, July 15 and October 15
of each year, commencing January 15, 1999.
"Interest Portion" shall have the meaning set forth in the Debt Securities.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time; each reference herein to any section of such Act or
any rule or regulation thereunder shall constitute a reference to any successor
provision thereto.
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"Issue Date" means, collectively, each original issue date of the TrUEPrS.
"Jersey Charitable Trust" means Aldobrandini Charitable Trust, a charitable
trust established under the laws of, and domiciled in, Jersey, the Channel
Islands.
"Jersey Holding Company" means Aldobrandini (Holdings) Limited, an exempt
company established under the laws of, and domiciled in, Jersey, the Channel
Islands.
"Jersey Preference Shares" means the fully paid, non-dividend paying
preference shares, liquidation preference US$25 per share, issued by the Jersey
Subsidiary.
"Jersey Subsidiary" means Aldobrandini (Investments) Limited, a company
incorporated with limited liability under the laws of, and domiciled in, Jersey,
the Channel Islands.
"License Agreement" means the License Agreement, dated as of November 6,
1998, between the Company and the Trust, as amended pursuant to the terms
thereof.
"Managing Trustee" means the Trustee designated the Managing Trustee by
resolution of the Trustees.
"Original Agreement" has the meaning specified in the recitals hereof.
"Paying Agent" means The Bank of New York or its successor as permitted
under Section 6.6 of the Paying Agent Agreement or appointed pursuant to Section
2.05(a) hereof.
"Paying Agent Agreement" means the Paying Agent Agreement, dated as of the
first issue date of the ANZ Preference Shares, between the Paying Agent and the
Trust and any substitute agreement therefor entered into pursuant to Section
2.05(a) hereof.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency or instrumentality thereof or any other
entity whatsoever.
"Prospectus" means the prospectus of the Trust relating to the offering of
the TrUEPrS and constituting a part of the Registration Statement, as first
filed with the Commission pursuant to Rule 497(h) under the Securities Act, and
as subsequently amended or supplemented by the Trust.
"Purchase Agreement" means the Purchase Agreement among the Trust, the
Company and the Underwriters named therein relating to the issue and sale of the
TrUEPrS, as described in the Prospectus.
"Qualifying Exchange Event" shall have the meaning set forth in Section
2.06(a).
"Record Date" means, with respect to each Dividend Payment Date, the
January 1, April 1, July 1 or October 1, as the case may be, immediately
preceding such Dividend Payment Date.
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"Registration Statement" means the Registration Statement on Form N-2
(Registration Nos. 333-65849 and 811-09069) of the Trust, as amended.
"Securities Act" means the Securities Act of 1933, as amended from time to
time; each reference herein to any section of such Securities Act or any rule or
regulation thereunder shall constitute a reference to any successor provision
thereto.
"Security and Pledge Agreements" means, collectively, the ADRs Security and
Pledge Agreement, dated as of the first issue date of the ANZ Preference Shares,
among the Trust, the U.K. Company, the Jersey Subsidiary and the Collateral
Agent, securing the respective obligations of the U.K. Company under the Debt
Securities and the Jersey Subsidiary under the Jersey Preference Shares and the
ADRs Purchase Contract, and the Jersey Preference Shares Security and Pledge
Agreement, dated as of the first issue date of the ANZ Preference Shares, among
the Trust, the U.K. Company and the Collateral Agent, securing the obligations
of the U.K. Company under the Debt Securities, each as amended pursuant to the
terms thereof.
"Sponsor" has the meaning specified in the introductory paragraph hereof.
"Support Agreement" means the support agreement, dated as of the first
issue date of the ANZ Preference Shares, between the Company and the ANZ
Affiliate.
"Tier 1 capital" means capital which is regarded as "tier 1 capital" for
the purposes of the capital adequacy guidelines of APRA.
"Tier 1 Capital Ratio" means the ratio of Tier 1 capital to risk weighted
assets (on a consolidated group basis) prescribed by APRA in its capital
adequacy guidelines for Australian banks, as modified from time to time.
"Total Capital Adequacy Ratio" means the total capital adequacy ratio as
prescribed by APRA in its capital adequacy guidelines for Australian banks, as
modified from time to time.
"TrUEPrS" means Trust Units Exchangeable for Preference Shares, each
representing a Holder's proportionate share of an undivided beneficial interest
in the assets of the Trust and right to receive a pro rata portion of any
distribution upon the occurrence of an Exchange Event or the payment of any non-
cumulative dividends on the TrUEPrS.
"TrUEPrS Subscription Agreement" means the TrUEPrS Subscription Agreement,
dated as of November 6, 1998, between the Trust and the Sponsor, as amended
pursuant to the terms thereof.
"Trust" has the meaning specified in the introductory paragraph hereof.
"Trust Account" means the non-interest bearing account created pursuant to
Section 3.01 hereof.
"Trust Estate" means (i) the Debt Securities and any distributions thereon
and redemption proceeds therefrom, (ii) the Jersey Preference Shares, if any,
purchased by the Trust pursuant to the terms of the Debt Securities and the
redemption proceeds therefrom, (iii) the
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ADRs Purchase Contract and (iv) the ADSs, if any, purchased by the Trust
pursuant to the terms of the ADRs Purchase Contract, in each case held at any
time by the Trust.
"Trust Expense Agreement" means the Trust Expense Agreement, dated as of
the first issue date of the ANZ Preference Shares, between The Bank of New York,
as Administrator, Custodian and Paying Agent of the Trust, and the Jersey
Holding Company, as amended pursuant to the terms thereof.
"Trust Reimbursement Agreement" means the Trust Reimbursement Agreement,
dated as of the first issue date of the ANZ Preference Shares, between the Trust
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc., as amended pursuant to the terms thereof.
"Trustees" has the meaning specified in the introductory paragraph hereof.
"U.K. Company" means Aldobrandini (UK) Company, a special purpose unlimited
company incorporated under the laws of England and Wales and domiciled in the
United Kingdom.
"Underwriters" means the several Underwriters named in the Purchase
Agreement.
ARTICLE II.
TRUST DECLARATION; PURPOSES, POWERS
AND DUTIES OF THE TRUSTEES; ADMINISTRATION
Section 2.01. NAME. The Trust is named ANZ Exchangeable Preferred Trust II,
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as such name may be modified from time to time by the Trustees following written
notice to the Holders. The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Trustees.
Section 2.02. OFFICE. The address of the principal office of the Trust is
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c/o Puglisi & Associates, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
On ten Business Days' written notice to the Holders the Trustees may designate
another principal office.
Section 2.03. RATIFICATION AND APPROVAL OF ACTION OF THE TRUSTEES. The
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Sponsor hereby ratifies and approves any and all actions taken by the Trustees
on behalf of the Trust on or prior to the date hereof in connection with the
registration of the Trust under the Investment Company Act, in connection with
the registration of the offer and sale of the TrUEPrS under the Securities Act,
or otherwise incident to, or connected with, or necessary to accomplish, the
foregoing or the offer and sale of the TrUEPrS by the Underwriters and the
operation of the Trust as described in the Prospectus.
Section 2.04. DECLARATION OF TRUST; PURPOSES OF THE TRUST. The Sponsor
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hereby creates the Trust solely so that it may issue and sell the TrUEPrS to the
Sponsor and the Underwriters, invest all the proceeds from each such sale in an
equivalent principal amount of the Debt Securities issued by the U.K. Company,
hold the Trust Estate in trust for the use and benefit of all present and future
Holders and otherwise carry out the terms and conditions of this Trust
Agreement, all for the purpose of achieving the investment objectives set forth
in the Prospectus. The Trustees hereby declare that they will accept and hold
the Trust Estate for
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the use and benefit of all present and future Holders. The Depositor has
heretofore deposited with the Trustees the sum of US$1 to accept and hold in
trust hereunder until the issuance and sale of the TrUEPrS to the Underwriters,
whereupon such sum shall be donated to an organization satisfying the
requirements of Section 170(c)(2) of the Code selected by unanimous consent of
the Trustees.
Section 2.05. GENERAL POWERS AND DUTIES OF THE TRUSTEES. In furtherance of
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the provisions of Section 2.04 hereof, the Sponsor authorizes and directs the
Trustees, in the name and on behalf of the Trust:
(a) to enter into and perform, or cause the Administrator to enter into
and perform, (and, in accordance with Section 7.04(c) hereof, amend) the
Security and Pledge Agreements, the Purchase Agreement, the Expense and
Indemnity Agreement, the Custodian Agreement, the Administration Agreement, the
Paying Agent Agreement, the Trust Reimbursement Agreement, the Trust Expense
Agreement, the TrUEPrS Subscription Agreement, the Debt Securities Subscription
Agreement, the ADRs Purchase Contract and the License Agreement and to perform
all obligations of the Trust (including the obligation to provide indemnity
hereunder and thereunder) and enforce all rights and remedies of the Trust under
each of such agreements, the Debt Securities and the Support Agreement; and if
any of such agreements terminates or the agent of the Trust thereunder resigns
or is discharged, to appoint a substitute agent and enter into a new agreement
with such substitute agent containing provisions substantially similar to those
contained in the agreement being terminated; provided that in any such new
agreement (i) the Custodian and the Paying Agent shall each be a commercial bank
or trust company organized and existing under the laws of the United States of
America or any state therein, shall have full trust powers and shall have
minimum capital, surplus and retained earnings of not less than US$100,000,000;
and (ii) the Administrator and the Collateral Agent shall each be a reputable
financial institution eligible and qualified in all respects to carry out its
obligations under the Administration Agreement or the Security and Pledge
Agreements, as the case may be;
(b) to hold the Trust Estate in trust, to create and administer the
Trust Account, to direct payments received by the Trust to the Trust Account and
to make payments out of the Trust Account as set forth in Article III hereof;
(c) to issue and sell to (i) the Underwriters an aggregate of up to
____________ TrUEPrS (including those TrUEPrS subject to the over-allotment
option of the Underwriters provided for in the Purchase Agreement) pursuant to
the Purchase Agreement and as contemplated by the Prospectus and (ii) the
Sponsor an aggregate of 4,000 TrUEPrS pursuant to the TrUEPrS Subscription
Agreement;
(d) to select and, subject to the provisions of Section 7.05 hereof, to
engage independent public accountants;
(e) to select and engage legal counsel and, to the extent required by
Section 2.07 hereof, to engage professional advisors and pay reasonable
compensation thereto;
(f) to defend any action commenced against the Trustees or the Trust
and to prosecute any action which the Trustees deem necessary to protect the
Trust and the rights and interests of Holders, and to pay the costs thereof;
10
(g) to delegate any or all of its powers and duties hereunder as
contemplated by the Custodian Agreement, the Paying Agent Agreement and the
Administration Agreement, in each case to the extent permitted by applicable
law;
(h) to adopt the fundamental policies set forth in the Prospectus, to
adopt and amend by-laws, and to take any and all such other actions as necessary
or advisable to carry out the purposes of the Trust, subject to the provisions
hereof and applicable law, including, without limitation, the Investment Company
Act;
(i) to arrange for the bonding of officers and employees of the Trust
if and as required by Section 17(g) of the Investment Company Act and the rules
and regulations thereunder;
(j) to prepare, execute and file with the New York Stock Exchange an
application for listing thereon of the TrUEPrS; to prepare, execute and file any
and all amendments, certificates, documents or letters to such listing as the
Trustees deem appropriate; and to enter into other agreements that are necessary
to effect such listing;
(k) whenever the holder of the ADRs, the ANZ Preference Shares or the
Jersey Preference Shares is entitled to vote on any matter, to perform such
acts, including without limitation, calling a special meeting of Holders,
obtaining Holders' consents and obtaining Holders' instructions, as necessary or
required for purposes of Section 7.01;
(l) to prepare, execute and file, and make related payments, with the
National Association of Securities Dealers, Inc. (the "NASD") in accordance with
Rule 2710 of the rules of conduct of the NASD and to prepare, execute and file
any and all amendments, certificates, documents, certificates, documents or
letters to such listing as the Trustees deem appropriate;
(m) to set up a special pricing committee (the "Special Pricing
Committee"), which committee shall consist of one of the Trustees and shall have
the authority to approve and set the final offering price per TrUEPrS and all
other final terms of the offering of the TrUEPrS; and
(n) to perform all other acts which are necessary and incidental to
carrying out the aforementioned powers.
Section 2.06. PORTFOLIO ACQUISITION. In furtherance of the provisions of
---------------------
Section 2.04 hereof, the Sponsor further specifically authorizes and directs the
Trustees, acting in the name and on behalf of the Trust:
(a) to use all the proceeds from the sale of the TrUEPrS on each Issue
Date pursuant to the TrUEPrS Subscription Agreement and the Purchase Agreement
to subscribe for and purchase on such Issue Date from the U.K. Company Debt
Securities with an aggregate principal amount equal to such proceeds and (1)
upon the occurrence of an Exchange Event (other than an Exchange Event resulting
from the redemption or Buy-Back of the ANZ Preference Shares for cash with
respect to which the Exchange Rate Condition is satisfied (a "Qualifying
Exchange Event")) to (A) apply the cash proceeds or the right of the Trust to
receive the cash proceeds payable upon the redemption of the Debt Securities
(other than the Interest Portion thereof, if any) to purchase from the U.K.
Company, subject to and in accordance with
11
the terms and conditions of the Debt Securities, as soon as possible on the
Exchange Date, Jersey Preference Shares owned by the U.K. Company with an
aggregate stated liquidation value equal to the aggregate principal amount of
Debt Securities so redeemed and (B) distribute the Interest Portion, if any, of
such cash redemption proceeds to Holders in accordance with Section 2.07(b)
hereof, and (2) upon the occurrence of a Qualifying Exchange Event, to
distribute the cash proceeds from the redemption of the Debt Securities to
Holders in accordance with Section 2.07(b) hereof;
(b) to enter into the ADRs Purchase Contract and upon the occurrence of
any Exchange Event other than a Qualifying Exchange Event, (1) if the Exchange
Event does not result from the redemption or Buy-Back of the ANZ Preference
Shares for cash, to (A) apply the cash proceeds or the right of the Trust to
receive the cash proceeds payable upon the redemption of the Jersey Preference
Shares acquired as contemplated in Section 2.06(a)(1) to purchase, in accordance
with and subject to the terms and conditions of the ADRs Purchase Contract, ADSs
representing the ANZ Preference Shares owned by the Jersey Subsidiary with an
aggregate liquidation value equal to the aggregate liquidation value of the
Jersey Preference Shares so redeemed, as soon as possible on the Exchange Date,
and (B) to distribute the ADSs so purchased to Holders in accordance with
Section 2.07(a) hereof, or (2) if the Exchange Event results from the redemption
or Buy-Back of the ANZ Preference Shares for cash and the Exchange Rate
Condition is not satisfied with respect to such Exchange Event, to distribute
the cash proceeds from the redemption of the Jersey Preference Shares to Holders
in accordance with Section 2.07(b) hereof.
Section 2.07. PORTFOLIO ADMINISTRATION. In furtherance of the provisions of
------------------------
Section 2.04 hereof, the Sponsor further specifically authorizes and directs the
Trustees:
(a) DISTRIBUTION OF ADSs UPON THE OCCURRENCE OF AN EXCHANGE EVENT. To
distribute ADSs, if any, to the Holders as soon as possible after they are
received by the Trust pursuant to the ADRs Purchase Contract as follows:
(i) if the TrUEPrS are evidenced by one or more global
Certificates and the ADSs received by the Trust are to be evidenced by one or
more global Certificates, then such ADSs will be delivered to, and registered in
the name of, DTC or its nominee for the benefit of the beneficial owners of
interests in the TrUEPrS;
(ii) if the TrUEPrS are evidenced by one or more global
Certificates and the ADSs received by the Trust are to be in the form of
definitive Certificates, then such ADSs will be delivered to, and registered in
the name of, such persons and at such addresses as DTC or its nominee shall
direct in writing; or
(iii) if the TrUEPrS are evidenced by definitive Certificates and
the ADSs received by the Trust are to be in the form of definitive Certificates,
then such ADSs will be delivered to, and registered in the name of, the Holders
at their respective addresses set forth in the register maintained by the Paying
Agent.
The Trust may require the Holders to pay a sum sufficient to cover any tax or
other governmental charges that may be imposed with respect to any such
distribution.
12
(b) DISTRIBUTION OF CASH UPON THE OCCURRENCE OF AN EXCHANGE EVENT. If
the Exchange Event is the redemption or Buy-Back of the ANZ Preference Shares
for cash, to distribute to the Holders as soon as possible after receipt by the
Trust, the cash distributable to Holders upon the redemption of the Debt
Securities and/or the Jersey Preference Shares pursuant to Sections
2.06(a)(1)(B), 2.06(a)(2) and/or 2.06(b)(2) on the basis of US$25 per TrUEPrS
plus accrued interest thereon from and including the last Interest Payment Date
immediately preceding the Exchange Date to but excluding the Exchange Date. The
Trust may require the Holders to pay a sum sufficient to cover any tax or other
governmental charges that may be imposed with respect to any such distribution.
(c) RECORD DATE. The distributions described in paragraphs (a) and (b)
shall be made to Holders of record as of the opening of business on the Exchange
Date.
Section 2.08. LIMITATIONS ON TRUSTEES' POWERS. The Trustees, acting in the
-------------------------------
name and on behalf of the Trust, are not permitted:
(a) to purchase or hold any securities, instruments or other property
except for the Trust Estate;
(b) to dispose of the Trust Estate other than the distributions
provided for in Sections 2.06, 2.07 and 3.02;
(c) to issue any securities or instruments other than the TrUEPrS sold
to the Sponsor and to be sold pursuant to the Purchase Agreement upon full
payment therefor as provided therein, or issued in accordance with Section 5.02
or 5.03;
(d) to make short sales or purchases on margin;
(e) to write put or call options;
(f) to borrow money;
(g) to underwrite securities;
(h) to purchase or sell real estate, commodities or commodities
contracts;
(i) to purchase restricted securities;
(j) to make loans;
(k) to take any action, or direct or permit the Administrator, the
Paying Agent or the Custodian to take any action, that would vary the investment
of the Holders within the meaning of Treasury Regulation Section 301.7701-4(c),
or otherwise take any action or direct or permit any action to be taken that
would or could cause the Trust not to be a "grantor trust" under the Code; or
(l) to take any other action not specifically authorized by
Section 2.05.
13
ARTICLE III.
ACCOUNTS AND PAYMENTS
Section 3.01. THE TRUST ACCOUNT. The Trustees shall, upon issuance of the
-----------------
TrUEPrS, establish with the Paying Agent an account to be called the "Trust
Account". All moneys received by the Trustees in respect of the Debt Securities
and the Jersey Preference Shares, and all moneys received from the sale of the
TrUEPrS to the Sponsor, shall be credited to the Trust Account, which shall be
non-interest bearing.
Section 3.02. DISTRIBUTIONS TO HOLDERS. On each Dividend Payment Date the
------------------------
Trustees shall distribute to each Holder of record at the close of business on
the immediately preceding Record Date, at the post office address of the Holder
appearing on the register maintained by the Trust or the Paying Agent or by any
other means mutually agreed upon by the Holder and the Trustees, non-cumulative
dividend distributions to be payable quarterly in arrears. If any Dividend
Payment Date is not a Business Day, then (notwithstanding any other provision
herein) payment of dividends otherwise payable on such Dividend Payment Date
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on the Dividend Payment Date. On
and after an Exchange Date, dividends on the TrUEPrS shall cease to accrue and
accrued but unpaid dividends on the TrUEPrS shall no longer be payable; provided
that the foregoing shall not affect the obligation to make the distributions
provided for in Sections 2.06 and 2.07.
Section 3.03. SEGREGATION. All moneys and other assets deposited or
-----------
received by the Trustees hereunder shall be held by them in trust as part of the
Trust Estate until required to be disbursed or otherwise disposed of in
accordance with the provisions of this Trust Agreement, and the Trustees shall
handle such moneys and other assets in such manner as shall constitute the
segregation and holding in trust within the meaning of the Investment Company
Act.
Section 3.04. EXPENSES. The organization costs of the Trust and the costs
--------
associated with the initial registration and offering of the TrUEPrS will be
paid by the Administrator on behalf of the Trust out of the facility fee to be
paid to the Trust by the U.K. Company in connection with the investment by the
Trust in the Debt Securities. Any such expenses paid by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
Inc. shall be reimbursed by the Administrator on behalf of the Trust pursuant to
the Trust Reimbursement Agreement. Certain ongoing expenses of the Trust such as
accounting services, expenses for legal and auditing services, taxes, costs of
printing proxies, listing fees, if any, stock certificates and shareholder
reports, charges of the Administrator, the Custodian and the Paying Agent, fees
and expenses of the Trustees, accounting costs, brokerage costs, litigation,
mailing and other expenses properly payable by the Trust will be paid by the
Administrator out of funds to be provided to the Administrator on behalf of the
Trust by the Jersey Holding Company pursuant to the Trust Expense Agreement.
Expenses of the Trust not covered by the Trust Expense Agreement and that are
reasonably related to the conduct of its business consistent with the provisions
of Article II hereof will be paid by the Administrator on behalf of the Trust
out of funds, if any, paid by the ANZ Affiliate pursuant to the Expense and
Indemnity Agreement. In no event shall any expenses of the Trust be payable out
of the Trust Estate.
Section 3.05. APPLICATION OF PAYMENTS UNDER TRUST EXPENSE AGREEMENT AND
---------------------------------------------------------
EXPENSE AND INDEMNITY AGREEMENT. To the extent the
-------------------------------
14
Administrator, on behalf of the Trust, receives money under the Expense and
Indemnity Agreement, the Debt Securities Subscription Agreement or the Trust
Expense Agreement, pending the use of such money by the Administrator to pay the
Trust's expenses under this Agreement, the Administration Agreement, the
Custodian Agreement, the Paying Agent Agreement or the Debt Securities
Subscription Agreement or any of its other expenses, such money shall be
deposited and held in a non-interest bearing account maintained by the
Administrator that is separate from the Trust Account. Upon dissolution of the
Trust, any money held in such account, less any expenses of the Trust, shall be
paid to the ANZ Affiliate pursuant to the Expense and Indemnity Agreement as an
Additional Indemnity Fee (as defined in such agreement).
ARTICLE IV.
REDEMPTION
Section 4.01. REDEMPTION. The Trustees shall have no right or obligation to
----------
redeem TrUEPrS.
ARTICLE V.
ISSUANCE OF CERTIFICATES;
REGISTRY; TRANSFER OF TrUEPrS
Section 5.01. FORM OF CERTIFICATE. Each Certificate evidencing TrUEPrS
-------------------
shall be executed manually or by facsimile by the Managing Trustee and
countersigned manually by the Paying Agent in substantially the form of Exhibit
A hereto with the blanks appropriately filled in, shall be dated the date on
which they are countersigned and delivered by the Paying Agent and shall
represent a fractional undivided interest in the assets of the Trust, the
numerator of which fraction shall be the number of TrUEPrS set forth on the face
of such Certificate and the denominator of which shall be the total number of
TrUEPrS outstanding at that time. All TrUEPrS shall be issued in registered form
and shall be numbered serially. Certificates bearing the manual or facsimile
signatures of any individual who was at any time the Managing Trustee shall bind
the Trust, notwithstanding that such individual ceased to hold such office prior
to the countersignature and delivery of such Certificates or did not hold such
position at the date of such Certificates. No Certificate shall be entitled to
any benefits hereunder or be valid or obligatory for any purpose unless such
Certificate shall have been countersigned by the Paying Agent as provided above,
and such countersignature upon any Certificate shall be conclusive evidence, and
the only evidence, that such Certificate has been duly countersigned and
delivered hereunder. Pending the preparation of definitive Certificates, the
Trustees may execute and the Paying Agent shall countersign and deliver
temporary Certificates (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Paying Agent). The
Certificates to be delivered to the Underwriters pursuant to the Purchase
Agreement will be issued in the form of a global Certificate or Certificates
evidencing the TrUEPrS to be issued to the Underwriters, which will be delivered
to DTC or its nominee by or on behalf of the Trust. Such global Certificate or
Certificates shall initially be registered on the register maintained by the
Paying Agent in the name of Cede & Co., the nominee of DTC, and no beneficial
owner of an interest in such TrUEPrS will receive a definitive Certificate
representing such beneficial owner's interest in such TrUEPrS, except as
provided in the next paragraph. Unless and until
15
definitive Certificates have been issued pursuant to the next paragraph, the
Trust shall be entitled to deal with DTC for all purposes of this Agreement as
the Holder and the sole Holder of the Certificates and shall have no obligation
to the beneficial owners of interest therein, and neither the Trust, the
Trustees, the Paying Agent nor any agent of any of the foregoing shall have any
liability with respect to or responsibility for the records of DTC or its
participants.
If DTC elects to discontinue its services as securities depository, then
definitive Certificates shall be prepared by the Trust. Upon surrender of the
global Certificate or Certificates and accompanied by registration instructions
from DTC, the Trustees shall cause definitive Certificates to be registered in
the names and delivered to the persons set forth in DTC's instructions. Neither
the Trustees, the Trust, the Paying Agent nor any agent of any of the foregoing
shall be liable for any delay by DTC in delivering such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.
Temporary Certificates shall be issuable as registered Certificates
substantially in the form of the definitive Certificates but with such
omissions, insertions and variations as may be appropriate for temporary
Certificates, all as may be determined by the Trustees. Every temporary
Certificate shall be executed by the Managing Trustee and be countersigned by
the Paying Agent upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Certificates. Without unreasonable
delay the Managing Trustee shall execute and shall furnish definitive
Certificates and thereupon temporary Certificates may be surrendered in exchange
therefor without charge at each office or agency of the Paying Agent and the
Paying Agent shall countersign and deliver in exchange for such temporary
Certificates definitive Certificates for a like aggregate number of TrUEPrS.
Until so exchanged, the temporary Certificates shall be entitled to the same
benefits hereunder as definitive Certificates.
Section 5.02. TRANSFER OF TrUEPrS; ISSUANCE, TRANSFER AND EXCHANGE OF
-------------------------------------------------------
CERTIFICATES. The registration and registration of transfer of TrUEPrS will be
------------
made in the register maintained by the Paying Agent for such purpose. Subject
to the satisfaction of any conditions imposed by applicable law, TrUEPrS may be
transferred by the Holder thereof by presentation and surrender of Certificates
at the office of the Paying Agent, accompanied by such documents as the Paying
Agent deems necessary to evidence the legality of the transfer. Certificates
issued pursuant to this Trust Agreement are exchangeable for one or more other
Certificates evidencing an equal aggregate number of TrUEPrS as may be requested
by the Holder. All Certificates shall be issued in denominations of one TrUEPrS
or any multiple thereof. All Certificates issued upon any registration of
transfer or exchange shall evidence the same fractional undivided interest in
the assets of the Trust, and be entitled to the same benefits, as the
Certificates surrendered upon such registration of transfer or exchange.
Prior to the due presentment for registration of transfer, the Paying Agent
may deem and treat the person in whose name any TrUEPrS shall be registered in
the register maintained by the Paying Agent as the owner of such TrUEPrS for all
purposes hereunder and neither the Trust, the Trustees, the Paying Agent nor any
agent of any of the foregoing shall be affected by any notice to the contrary.
The transfer books maintained by the Paying Agent for the purposes of this
Section 5.02 shall include the name and address of the record owners of the
TrUEPrS and shall be closed in connection with the dissolution of the Trust
pursuant to Section 7.03 hereof. A sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such exchange or
transfer shall be paid to the Paying Agent by the Holder. A Holder may be
16
required to pay a fee for each new Certificate to be issued pursuant to this
paragraph in such amount as may be specified by the Paying Agent and approved by
the Trustees. All Certificates surrendered for registration of transfer or
exchange shall be promptly cancelled by the Paying Agent. No Certificates shall
be countersigned in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Agreement. All
Certificates cancelled pursuant to this Trust Agreement may be voided by the
Paying Agent in accordance with the usual practice of the Paying Agent or in
accordance with the instructions of the Trustees; provided, however, that the
Paying Agent shall not be required to destroy cancelled Certificates. The
Paying Agent may adopt other reasonable rules and regulations for the
registration, transfer and tender of TrUEPrS as it may, in its discretion, deem
necessary.
Section 5.03. REPLACEMENT OF CERTIFICATES. In case any Certificate shall
---------------------------
become mutilated or be destroyed, stolen or lost, then, in the absence of notice
to the Paying Agent that such certificate has been acquired by a protected
purchaser, the Managing Trustee shall execute and upon its request, the Paying
Agent shall countersign and deliver a new Certificate of like tenor, bearing a
number not contemporaneously outstanding, in exchange and substitution therefor
upon the Holder's furnishing the Paying Agent with proper identification and
complying with such other reasonable regulations and conditions as the Paying
Agent may prescribe and paying such expenses and charges, including any bonding
fee, as the Paying Agent may incur or reasonably impose; provided, however, that
in the case of a destroyed, stolen or lost Certificate, prior to the Paying
Agent countersigning and delivering a new Certificate in exchange or
substitution therefor, there shall be delivered to the Paying Agent (i) evidence
to its satisfaction of such destruction, loss or theft and (ii) such security or
indemnity as may be required by it to hold it and any of its agents harmless.
Any mutilated Certificate shall be duly surrendered and cancelled before any
duplicate Certificate shall be issued in exchange and substitution therefor.
Upon issuance of any duplicate Certificate pursuant to this Section 5.03, the
original Certificate claimed to have been lost, stolen or destroyed shall become
null and void and of no effect, and any protected purchaser thereof shall have
only such rights as are afforded under Article 8 of the Uniform Commercial Code
to a Holder presenting a Certificate for transfer in the case of an overissue.
Upon the issuance of any new Certificate under this Section, the Trust may
require the payment of a sum sufficient to cover any tax or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustees and the Paying Agent) connected
therewith. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Certificates.
Section 5.04. LIMITATION ON LIABILITY. Pursuant to (S)3803(a) of the
-----------------------
Delaware Business Trust Act, 12 Del. C. (S)3801, et seq., the Holders of the
------- -- ----
TrUEPrS shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
Section 5.05. GENERAL PROVISIONS REGARDING THE TrUEPrS.
----------------------------------------
(a) The consideration received by the Trust for the issuance of the
TrUEPrS shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(b) Upon issuance of the TrUEPrS as provided in this Trust Agreement,
the TrUEPrS so issued shall be deemed to be validly issued, fully paid and non-
assessable. The issuance of the TrUEPrS will not be subject to preemptive or
other similar rights.
17
(c) Every person, by virtue of having become a Holder in accordance
with the terms of this Trust Agreement, shall be deemed to have expressly
assented and agreed to the terms of, and shall be bound by, this Trust
Agreement.
ARTICLE VI.
TRUSTEES
Section 6.01. TRUSTEES. The Trust shall have three Trustees, each of which
--------
shall be residents of the United States. One Trustee shall be the Managing
Trustee and, as such, is authorized to execute documents and instruments on
behalf of the Trust. The Managing Trustee will be appointed by resolution of the
Trustees. Each Trustee shall serve until the next meeting of Holders called for
the purpose of electing Trustees and, then, until such Trustee's successor is
duly elected and qualified. Holders may not cumulate their votes in the election
of Trustees. Each Trustee shall not be considered to have qualified for the
office unless such Trustee shall agree to be bound by the terms of this Trust
Agreement and shall evidence his consent by executing this Trust Agreement or a
supplement hereto.
Section 6.02. VACANCIES. Any vacancy in the office of a Trustee may be
---------
filled in compliance with Sections 10 and 16 of the Investment Company Act by
the vote, within 30 days, of the remaining Trustees; provided that if required
by Section 16 of the Investment Company Act, the Trustees shall forthwith cause
to be held as promptly as possible and in any event within 60 days (unless the
Commission by order shall extend such period) a meeting of Holders for the
purpose of electing Trustees in compliance with Sections 10 and 16 of the
Investment Company Act. Until a vacancy in the office of any Trustee is filled
as provided above, the remaining Trustees in office, regardless of their number,
shall have the powers granted to the Trustees and shall discharge all the duties
imposed upon the Trustees by this Trust Agreement. Election shall be by the
affirmative vote of Holders of a majority of the TrUEPrS entitled to vote
present in person or by proxy at a special meeting of Holders called for the
purpose of electing any Trustee. Each individual Trustee shall be at least 21
years of age and shall not be under any legal disability. No Trustee who is an
"interested person", as defined in the Investment Company Act, may assume office
if it would cause the composition of the Trustees of the Trust not to be in
compliance with the percentage limitations on interested persons in Section 10
of the Investment Company Act. Trustees need not be Holders. Notice of the
appointment or election of a successor Trustee shall be mailed promptly after
acceptance of such appointment by the successor Trustee to each Holder.
Section 6.03. POWERS. The Trust will be managed solely by the Trustees, who
------
will, subject to the provisions of Article II hereof, have complete and
exclusive control over the management, conduct and operation of the Trust's
business, and shall have the rights, powers and authority of a board of
directors of a corporation organized under Delaware law. The Trustees shall
have fiduciary responsibility for the safekeeping and use of all funds and
assets of the Trust and shall not employ, or permit another to employ, such
funds or assets in any manner except for the exclusive benefit of the Trust and
except in accordance with the terms of this Trust Agreement. Subject to the
continuing supervision of the Trustees and as permitted by applicable law, the
functions of the Trust shall be performed by the Custodian, the Paying Agent,
the Administrator and such other entities engaged to perform such functions as
the Trustees may determine, including, without limitation, any or all
administrative functions.
18
Section 6.04. MEETINGS. Meetings of the Trustees shall be held from time to
--------
time upon the call of any Trustee on not less than 48 hours notice (which may be
waived by any or all of the Trustees in writing either before or after such
meeting or by attendance at the meeting unless the Trustee attends the meeting
for the express purpose of objecting to the transaction of any business on the
ground that the meeting has not been lawfully called or convened). The Trustees
shall act either by majority vote of the Trustees present at a meeting at which
at least a majority of the Trustees then in office are present or by a unanimous
written consent of the Trustees without a meeting. Except as otherwise required
under the Investment Company Act, all or any of the Trustees may participate in
a meeting of the Trustees by means of a conference telephone call or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to such
communications equipment shall constitute presence in person at such meeting.
Section 6.05. RESIGNATION AND REMOVAL. Any Trustee may resign and be
-----------------------
discharged of the trust created by the Trust Agreement by executing an
instrument in writing resigning as Trustee, filing the same with the
Administrator and sending notice thereof to the remaining Trustees, and such
resignation shall become effective immediately unless otherwise specified
therein. Any Trustee may be removed in the event of incapacity by vote of the
remaining Trustees and for any reason by written declaration or vote of the
Holders of more than 66 2/3% of the outstanding TrUEPrS, notice of which vote
shall be given to the remaining Trustees and the Administrator. The
resignation, removal or failure to reelect any Trustee shall not cause the
termination of the Trust.
Section 6.06. LIABILITY. The Trustees shall not be liable to the Trust or
---------
any Holder for any action taken or for refraining from taking any action except
in the case of willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties of their office. Specifically, without limitation, the
Trustees shall not be responsible for or in respect of the recitals herein or
the validity or sufficiency of this Trust Agreement or for the due execution
hereof by any other Person, or for or in respect of the validity or sufficiency
of TrUEPrS or Certificates representing TrUEPrS and shall in no event assume or
incur any liability, duty or obligation to any Holder or to any other Person,
other than as expressly provided for herein. The Trustees may employ agents,
attorneys, administrators, accountants and auditors, and shall not be answerable
for the default or misconduct of any such Persons if such Persons shall have
been selected and retained with reasonable care. Action in good faith may
include action taken in good faith in accordance with an opinion of counsel. In
no event shall any Trustee be personally liable for any expenses with respect to
the Trust. Each Trustee shall, to the fullest extent permitted by applicable
law, be indemnified by the Trust with respect to any claim, liability or loss
arising out of or in connection with such Trustee's acting as Trustee of the
Trust and with respect to all reasonable costs and expenses (including the
reasonable costs of investigation, preparation for and defense of legal and/or
administrative proceedings relating to a claim against such Trustee and
reasonable attorneys' fees and disbursements) incurred in connection with any
such claim, liability or loss, except in the case of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties of his office.
Notwithstanding the foregoing, it is understood that (i) the Trust shall not, in
respect of the legal expenses of any Trustee in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel), (ii)
the Trust shall not be liable for any settlement of any proceeding effected
without the written consent of the Trust, but if settled with such consent or if
there be a final judgment for the third party claimant, the Trust agrees to
19
indemnify the Trustees from and against any loss or liability by reason of such
settlement or judgment, (iii) the Trust shall only be obligated to pay any
amounts owing to the Trustees under this Section 6.06 from payments it receives
pursuant to the Expense and Indemnity Agreement and not out of the Trust Estate
and (iv) the Trust shall not be liable for any loss, damages, cost, liability or
claim or any expense (including the reasonable costs of investigation,
preparation for and defense of legal and/or administrative proceedings related
to a claim against the Trustees and reasonable attorneys' fees and
disbursements) in an amount in excess of the amount actually received by the
Trust under the Expense and Indemnity Agreement in connection with such loss,
damages, cost, liability or claim.
Section 6.07. COMPENSATION. Each Trustee, other than a Trustee who is a
------------
director, officer or employee of the Sponsor, any Underwriter, or the
Administrator or any affiliate thereof, shall receive a quarterly fee of US$900
payable on January 15, April 15, July 15 and October 15 of each year, provided
the first quarterly fee of $900 for January 15, 1999 shall be payable at Closing
Time. The Managing Trustee, other than a Managing Trustee who is a director,
officer or employee of the Sponsor, any Underwriter or any affiliate thereof,
shall receive an additional quarterly fee of $300 payable on January 15, April
15, July 15 and October 15 of each year, provided the first additional quarterly
fee of $300 for January 15, 1999 shall be payable at Closing Time. The Trustees
will not receive any pension or retirement benefits. In the event of the
resignation or removal of a Trustee or the occurrence of an Exchange Event, such
Trustee shall remit to the Trust the portion of its fee ratable for the period
from the day of such resignation or removal or the date on which an Exchange
Event occurs to the day immediately preceding the first day of the next quarter.
The Trustees will only be entitled to receive compensation pursuant to this
Section 6.07 out of payments received pursuant to the Trust Expense Agreement
and the Expense and Indemnity Agreement and not out of the Trust Estate.
ARTICLE VII.
MISCELLANEOUS
Section 7.01. MEETINGS OF HOLDERS.
-------------------
(a) The Trustees shall not hold annual or regular meetings of Holders
except as set forth herein. A special meeting may be called at any time by the
Trustees or upon petition of Holders of more than 50% of the TrUEPrS outstanding
(unless substantially the same matter was voted on during the preceding 12
months), and shall be called as required by the Investment Company Act or
pursuant to paragraph (v)(B) of the definition of Exchange Event and the rules
and regulations thereunder, including, without limitation, when requested by the
Holders of not less than 10% of the TrUEPrS outstanding for the purposes of
voting upon the question of the removal of any Trustee or Trustees. The Trustees
shall establish, and notify the Holders in writing of, the record date for each
such meeting which shall be not less than 10 nor more than 50 days before the
meeting date. Holders at the close of business on the record date will be
entitled to vote at the meeting. The Administrator shall, as soon as possible
after any such record date (or prior to such record date if appropriate), mail
by first class mail to each Holder a notice of meeting and a proxy statement and
form of proxy in the form approved by the Trustees and complying with the
Investment Company Act and the rules and regulations thereunder. Except as
otherwise specified herein, in the Prospectus (including, without limitation,
changes to the
20
Trust's fundamental policies set forth in the Prospectus) or in any provision of
the Investment Company Act and the rules and regulations thereunder, any action
may be taken by vote of Holders of a majority of the TrUEPrS outstanding present
in person or by proxy if Holders of a majority of TrUEPrS outstanding on the
record date are so represented. Each TrUEPrS shall have one vote and may be
voted in person or by duly executed proxy; provided, however, that any
investment company registered under the Investment Company Act and any company
excepted from the definition of "Investment Company" pursuant to Section 3(c)(l)
or 3(c)(7) of the Investment Company Act owning TrUEPrS in excess of the limits
imposed by Sections 12(d)(1)(A)(i) and 12(d)(1)(C) of the 1940 Act must vote
their TrUEPrS in proportion to the vote of all other Holders of TrUEPrS that are
not such investment companies registered under the Investment Company Act. Any
proxy may be revoked by notice in writing, by a subsequently dated proxy or by
voting in person at the meeting, and no proxy shall be valid after eleven months
following the date of its execution.
(b) Whenever the holders of the ADRs or the ANZ Preference Shares are
entitled to vote on any matter,
(i) the Trustees shall call a special meeting of the Holders in
accordance with the procedures described in Section 7.01(a) hereof so that
the Holders can indicate how the ADSs or the ANZ Preference Shares should
be voted pursuant to the voting rights granted in the Security and Pledge
Agreements, the Deposit Agreement or the terms of the ANZ Preference
Shares; or
(ii) in lieu of a special meeting of the Holders, such Holders
may provide a written consent, in the manner required by the Investment
Company Act and the rules and regulations thereunder, in which such Holders
will instruct the Trustees of the Trust as to the exercise of the voting
rights pertaining to the ADSs or the ANZ Preference Shares.
Such vote shall be taken a sufficient time before the vote of the ADSs
or the ANZ Preference Shares so that the Trustees can determine the results of
such vote and direct the Jersey Subsidiary, the Collateral Agent or the
Depositary to vote the ADSs or the ANZ Preference Shares in accordance with such
results.
(c) Whenever the holder of the Jersey Preference Shares is entitled to
vote on any matter,
(i) the Trustees shall call a special meeting of the Holders in
accordance with the procedures described in Section 7.01(a) hereof so that
the Holders can indicate how the Jersey Preference Shares should be voted
pursuant to the voting rights granted in the Jersey Preference Shares
Security and Pledge Agreement; or
(ii) in lieu of a special meeting of the Holders, such Holders
may provide a written consent, in the manner required by the Investment
Company Act and the rules and regulations thereunder, in which such Holders
will instruct the Trustees of the Trust as to the exercise of the voting
rights pertaining to the Jersey Preference Shares.
21
Such vote shall be taken a sufficient time before the vote of the
Jersey Preference Shares so that the Trustees can determine the results of such
vote and direct the U.K. Company to vote the Jersey Preference Shares in
accordance with such results.
Section 7.02. BOOKS AND RECORDS; REPORTS.
--------------------------
(a) The Trustees shall keep a certified copy or duplicate original of
this Trust Agreement on file at the office of the Trust and the office of the
Administrator available for inspection at all reasonable times during its usual
business hours by any Holder. The Trustees shall keep proper books of record and
account for all the transactions under this Trust Agreement at the office of the
Trust and the office of the Administrator, and such books and records shall be
open to inspection by any Holder at all reasonable times during usual business
hours. The Trustees shall retain all books and records in compliance with
Section 31 of the Investment Company Act and the rules and regulations
thereunder.
(b) With each payment to Holders the Paying Agent shall set forth,
either in the instruments by means of which payment is made or in a separate
statement, the amount being paid from the Trust Account expressed as a U.S.
dollar amount per TrUEPrS and the other information required under Section 19 of
the Investment Company Act and the rules and regulations thereunder. The
Trustees shall prepare and file or distribute reports as required by Section 30
of the Investment Company Act and the rules and regulations thereunder. The
Trustees shall prepare and file such reports as may from time to time be
required to be filed or distributed to Holders under any applicable state or
Federal statute or rule or regulation thereunder, and shall file such tax
returns as may from time to time be required under any applicable state or
Federal statute or rule or regulation thereunder. One of the Trustees shall be
designated by resolution of the Trustees to make the filings and give the
notices required by Rule 17g-1 under the Investment Company Act.
(c) In calculating the net asset value of the Trust as required by the
Investment Company Act, the value of the Debt Securities will be determined in
good faith by the Trustees pursuant to procedures adopted by them.
Section 7.03. DISSOLUTION. The Trust created hereby shall dissolve, and its
-----------
affairs be wound up, upon the earliest of (i) the date 90 days after the
execution of this Trust Agreement if (x) the TrUEPrS have not theretofore been
issued or (y) the net worth of the Trust is not at least US$100,000 at such
time, (ii) the Business Day after the distributions of ADSs or cash pursuant to
Section 2.07, and (iii) the date which is 21 years less 91 days after the death
of the last survivor of all of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., the
former United States Ambassador to the Court of St. ▇▇▇▇▇, living on the date
hereof. The Trust is irrevocable, the Sponsor has no right to withdraw any
assets constituting a portion of the Trust Estate, and the dissolution of the
Sponsor shall not operate to dissolve the Trust. The death or incapacity of any
Holder shall not operate to terminate this Trust Agreement, nor entitle his
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, and shall
not otherwise affect the rights, obligations and liabilities of the parties
hereto.
22
Section 7.04. AMENDMENT AND WAIVER.
--------------------
(a) This Trust Agreement may be amended from time to time by the
Trustees for any purpose prior to the issuance and sale to the Underwriters of
the TrUEPrS and thereafter without the consent of any of the Holders (i) to cure
any ambiguity or to correct or supplement any provision contained herein or
therein which may be defective or inconsistent with any other provision
contained herein or therein; (ii) to change any provision hereof or thereof as
may be required by applicable law or the Commission or any successor
governmental agency exercising similar authority; or (iii) to make such other
provisions in regard to matters or questions arising hereunder or thereunder as
shall not materially adversely affect the interests of the Holders (as
determined in good faith by the Trustees, who may rely on an opinion of
counsel); provided, however, that no such amendment may be made if it would
cause an Exchange Event to occur.
(b) This Trust Agreement may also be amended from time to time by the
Trustees (or the performance of any of the provisions of the Trust Agreement may
be waived) with the consent by the required vote of the Holders in accordance
with Section 7.01(a) hereof; provided that this Trust Agreement may not be
amended (i) without the consent by vote of the Holders of all TrUEPrS then
outstanding, so as to increase the number of TrUEPrS issuable hereunder above
the number of TrUEPrS specified in Section 2.05(c) hereof or such lesser number
as may be outstanding at any time during the term of this Trust Agreement, (ii)
to reduce the interest in the Trust represented by TrUEPrS without the consent
of the Holders of such TrUEPrS, (iii) if such amendment is prohibited by the
Investment Company Act or other applicable law, (iv) without the consent by vote
of the Holders of all TrUEPrS then outstanding, if such amendment would effect a
change in Sections 2.04, 2.05, 2.06, 2.07, 2.08 or 3.02 hereof or in the voting
requirements set forth in Section 7.01 hereof or this Section 7.04 or (v) in
such a manner as would cause an Exchange Event to occur.
(c) Any of the agreements referred to in Section 2.05(a) hereof may be
amended from time to time by the Trustees and the other parties thereto for any
purpose without the consent of any of the Holders.
(d) Promptly after the execution of any amendment, the Trustees shall
furnish written notification of the substance of such amendment to each Holder
and the ANZ Affiliate.
(e) Notwithstanding subsections (a) and (b) of this Section 7.04, no
amendment hereof shall permit the Trust, the Trustees, the Administrator, the
Paying Agent or the Custodian to take any action or direct or permit any Person
to take any action that (i) would vary the investment of Holders within the
meaning of Treasury Regulation Section 301.7701-4(c), or (ii) would or could
cause the Trust, or direct or permit any action to be taken that would or could
cause the Trust, not to be a "grantor trust" under the Code.
Section 7.05. ACCOUNTANTS.
-----------
(a) The Trustees shall, in accordance with Section 30 of the Investment
Company Act, file annually with the Commission such information, documents and
reports as investment companies having securities registered on a national
securities exchange are required to file annually pursuant to Section 13(a) of
the Exchange Act and the rules and regulations issued thereunder. The Trustees
shall transmit to the Holders, at least semi-annually, the reports required by
Section 30(d) of the Investment Company Act and the rules and regulations
23
thereunder, including, without limitation, a balance sheet accompanied by a
statement of the aggregate value of investments on the date of such balance
sheet, a list showing the amounts and values of such investments owned on the
date of such balance sheet, and a statement of income for the period covered by
the report. Financial statements contained in such annual reports shall be
accompanied by a certificate of independent public accounts based upon an audit
not less in scope or procedures than that which independent public accountants
would ordinarily make for the purpose of complying with generally accepted
auditing standards and shall contain such information as the Commission may
prescribe. Each such report shall state that such independent public accountants
have verified investments owned, either by actual examination or by receipt of a
certificate from the Custodian.
(b) The independent public accountants referred to in subsection (a)
above shall be selected at a meeting held within 30 days before or after the
beginning of the fiscal year by the vote, cast in person, of a majority of the
Trustees who are not "interested persons" as defined in the Investment Company
Act and such selection shall be submitted for ratification at the first meeting
of Holders to be held as set forth in Section 7.01 hereof, and thereafter as
required by the Investment Company Act and the rules and regulations thereunder.
The employment of any independent public accountant for the Trust shall be
conditioned upon the right of the Holders by a vote of the lesser of (i) 67% or
more of the TrUEPrS present at a special meeting of Holders, if Holders of more
than 50% of TrUEPrS outstanding are present or represented by proxy at such
meeting or (ii) more than 50% of the TrUEPrS outstanding to terminate such
employment at any time without penalty.
(c) The foregoing provisions of this Section 7.05 are in addition to
any applicable requirements of the Investment Company Act and the rules and
regulations thereunder.
Section 7.06. NATURE OF HOLDER'S INTEREST. Each Holder holds at any given
---------------------------
time a proportionate undivided beneficial interest in the Trust Estate, but does
not have any title or right to take title or possession of any portion of the
Trust Estate. Each Holder expressly waives any right he may have under any rule
of law, the provisions of any statute or otherwise, to require the Trustees at
any time to account, in any manner other than as expressly provided in this
Trust Agreement, for the Trust Estate or any component thereof. No Holder shall
have any right except as provided herein to control or determine the operation
and management of the Trust or the obligations of the parties hereto. Nothing
set forth herein or in the Certificates shall be construed to constitute the
Holders from time to time as partners, joint venturers or members of an
association.
Section 7.07. NO RECOURSE. Notwithstanding anything to the contrary
-----------
contained herein, no recourse shall be had, whether by levy or execution or
otherwise, for any claim based on this Trust Agreement or in respect hereof
against any incorporator, shareholder or affiliate of the Trust or the Trustees,
the Administrator, the Custodian or the Paying Agent or any predecessor,
successor or affiliate of the Trust and of the aforesaid persons, or any of
their assets, or against any principal, partner, incorporator, shareholder,
officer, director, agent or employee of any of the aforesaid persons, under any
rule of law, equitable principle, statute or constitution, or by the enforcement
of any assessment or penalty, or otherwise, nor shall any of such persons be
personally liable for any such amounts or claims, or liable for any deficiency
judgment based thereon or with respect thereto, and that all such liability of
the aforesaid persons is expressly waived and released as a condition of, and as
consideration for, the execution of this Trust
24
Agreement by the Trust; provided, however, that the foregoing shall not relieve
any of such persons or entities from liability for, or prevent recourse against
such persons or entities in respect of, their willful misfeasance, bad faith,
gross negligence or reckless disregard of their duties under this Agreement or
the other agreements referred to herein. Notwithstanding anything to the
contrary contained herein, nothing in this Section shall be construed to affect
or limit the Trust's obligations under this Trust Agreement.
Section 7.08. ENFORCEMENT OF RIGHTS. The Trust will enforce its rights with
---------------------
respect to any payment of money under the Fundamental Trust Agreements (as
defined in the Purchase Agreement) and will enforce its rights with respect to
any actions, omissions or other non-monetary matters against any or all parties
to the aforesaid Fundamental Trust Agreements and the Support Agreement.
Section 7.09. DELAWARE LAW TO GOVERN. This Trust Agreement is executed and
----------------------
delivered in the State of Delaware, and all laws or rules of construction of the
State of Delaware, without regard to principles of conflict of laws, shall
govern the rights of the parties hereto and the Holders and the construction,
validity and effect of the provisions hereof.
Section 7.10. NOTICES. Any notice, demand, direction or instruction to be
-------
given to the Sponsor hereunder shall be in writing and shall be duly given if
mailed or delivered to ML IBK Positions, Inc. at World Financial Center, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other address as shall be specified
by the Sponsor to the other parties hereto in writing. Any notice, demand,
direction or instruction to be given to the Trust and the Trustees hereunder
shall be in writing and shall be duly given if mailed or delivered to the Trust
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and to
each Trustee at such Trustee's address set forth beneath its signature below, or
such other address as shall be specified to the other parties hereto by such
party in writing. Any notice to be given to a Holder shall be duly given if
mailed, first class postage prepaid, or by such other substantially equivalent
means as the Trustees may deem appropriate, or delivered to such Holder at the
address of such Holder appearing on the registry of the Paying Agent. Notice to
be given to the ANZ Affiliate pursuant to Section 7.04(d) shall be duly given if
mailed or delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
or at such other address as shall be specified by the ANZ Affiliate to the
parties hereto in writing.
Section 7.11. SEVERABILITY. If any one or more of the covenants,
------------
agreements, provisions or terms of this Trust Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
and terms of this Trust Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Trust Agreement or of the
Certificates, or the rights of the Holders thereof.
Section 7.12. COUNTERPARTS. This Trust Agreement may be executed in several
------------
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 7.13. SUCCESSORS AND ASSIGNS. Whenever in this Trust Agreement any
----------------------
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Trust Agreement by the Sponsor
25
and Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
26
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed.
ML IBK POSITIONS, INC.
By:________________________________________
Name:
Title:
TRUSTEES:
__________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
__________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
__________________________________________
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
27
EXHIBIT A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ANZ EXCHANGEABLE
PREFERRED TRUST II OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. (OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN. THIS CERTIFICATE MAY BE EXCHANGED BY AN AUTHORIZED REPRESENTATIVE OF
DTC IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, REGISTERED IN THE
NAMES OF SUCH HOLDERS AS SUCH REPRESENTATIVE OF DTC SHALL SPECIFY, IN WHICH
CASE, A NEW CERTIFICATE WILL BE ISSUED IN THE NAME OF CEDE & CO. (OR IN SUCH
OTHER NAME AS IS REQUESTED BY SUCH AUTHORIZED REPRESENTATIVE OF DTC)
REPRESENTING THE SECURITIES NOT ISSUED IN DEFINITIVE FORM.
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF THE TRUST AGREEMENT REFERRED TO BELOW TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND.
TrUEPrS
ANZ EXCHANGEABLE PREFERRED TRUST II
CUSIP NO. ___________
NO._______________________ _____________________ TRUST UNITS
EXCHANGEABLE FOR PREFERENCE SHARES/SM/
THIS CERTIFIES THAT CEDE & CO. IS THE RECORD OWNER OF ___________ TRUST UNITS
EXCHANGEABLE FOR PREFERENCE SHARES ("TrUEPrSSM") CONSTITUTING A PROPORTIONATE
UNDIVIDED BENEFICIAL INTEREST IN THE ASSETS OF ANZ EXCHANGEABLE PREFERRED TRUST
II, A TRUST GOVERNED BY THE LAWS OF THE STATE OF DELAWARE PURSUANT TO A SECOND
AMENDED AND RESTATED TRUST AGREEMENT (THE "TRUST AGREEMENT") AMONG ML IBK
POSITIONS, INC., THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED
THEREIN). THIS CERTIFICATE IS ISSUED UNDER, AND IS SUBJECT TO THE TERMS,
PROVISIONS AND CONDITIONS OF, THE TRUST AGREEMENT TO WHICH THE HOLDER OF THIS
CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A COPY OF
WHICH TRUST AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUST'S ADMINISTRATOR
AND PAYING AGENT, THE BANK OF NEW YORK, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. THIS CERTIFICATE IS TRANSFERABLE AND EXCHANGEABLE BY THE REGISTERED
OWNER IN PERSON AT THE OFFICE OF THE PAYING AGENT UPON PRESENTATION AND
SURRENDER OF THIS CERTIFICATE ACCOMPANIED BY ANY DOCUMENTS
__________________________________
/SM/ Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
A-1-1
THAT THE PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM SATISFACTORY TO THE
PAYING AGENT AND PAYMENT OF THE FEES AND EXPENSES PROVIDED IN THE TRUST
AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE PAYING
AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
ANZ Exchangeable Preferred Trust II
Dated: __________, 1998
By: ______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK
as Paying Agent
By: ____________________________
Authorized Signature
A-1-2
EXHIBIT A-2
ANZ EXCHANGEABLE PREFERRED TRUST II
NO. ____________ _________ TRUST UNITS
EXCHANGEABLE FOR PREFERENCE SHARES/SM/
CUSIP NO. ___________
THIS CERTIFIES THAT _______________ IS THE RECORD OWNER OF _____________ FULLY
PAID AND NON-ASSESSABLE TRUST UNITS EXCHANGEABLE FOR PREFERENCE SHARES
("TrUEPrSSM") CONSTITUTING A PROPORTIONATE UNDIVIDED BENEFICIAL INTEREST IN THE
ASSETS OF ANZ EXCHANGEABLE PREFERRED TRUST II, A TRUST GOVERNED BY THE LAWS OF
THE STATE OF DELAWARE PURSUANT TO A SECOND AMENDED AND RESTATED TRUST AGREEMENT
(THE "TRUST AGREEMENT") AMONG ML IBK POSITIONS, INC., THE TRUSTEES NAMED THEREIN
AND THE HOLDERS (AS DEFINED THEREIN). THIS CERTIFICATE IS ISSUED UNDER, AND IS
SUBJECT TO THE TERMS, PROVISIONS AND CONDITIONS OF, THE TRUST AGREEMENT, AS THE
SAME MAY BE AMENDED FROM TIME TO TIME, TO WHICH THE HOLDER OF THIS CERTIFICATE
BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS BOUND, A COPY OF WHICH TRUST
AGREEMENT IS AVAILABLE AT THE OFFICE OF THE TRUST'S PAYING AGENT, THE BANK OF
NEW YORK, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. THIS CERTIFICATE IS
TRANSFERABLE AND EXCHANGEABLE BY THE REGISTERED OWNER IN PERSON AT THE OFFICE OF
THE PAYING AGENT UPON PRESENTATION AND SURRENDER OF THIS CERTIFICATE ACCOMPANIED
BY ANY DOCUMENTS THAT THE PAYING AGENT MAY REQUIRE FOR TRANSFER, IN FORM
SATISFACTORY TO THE PAYING AGENT AND PAYMENT OF THE FEES AND EXPENSES PROVIDED
IN THE TRUST AGREEMENT.
THIS CERTIFICATE IS NOT VALID UNLESS MANUALLY COUNTERSIGNED BY THE PAYING
AGENT.
WITNESS THE FACSIMILE SIGNATURE OF THE MANAGING TRUSTEE.
DATED:
ANZ EXCHANGEABLE PREFERRED TRUST II
By:________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Trustee
COUNTERSIGNED:
THE BANK OF NEW YORK
as Paying Agent
By: ______________________________
Authorized Signature
_________________________________
SM Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
A-2-1
THIS CERTIFICATE IS ISSUED UNDER AND IS SUBJECT TO THE TERMS, PROVISIONS AND
CONDITIONS OF A SECOND AMENDED AND RESTATED TRUST AGREEMENT AMONG ML IBK
POSITIONS, INC., THE TRUSTEES NAMED THEREIN AND THE HOLDERS (AS DEFINED
THEREIN), AS SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, TO WHICH THE
HOLDER OF THIS CERTIFICATE BY VIRTUE OF THE ACCEPTANCE HEREOF ASSENTS AND IS
BOUND.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--___Custodian___ UNIF ▇▇▇▇ MIN ACT--___Custodian__
TEN ENT--as tenants by the entireties (Cust) (Minor) (Cust) (Minor)
JT TEN-- as joint tenants with right under Uniform Gifts to under Uniform Transfers to
of survivorship and not as Minors Act _________ Minors Act _________
tenants in common (State) (State)
Additional abbreviations also may be used though not in the above list.
For value received, _______________________ hereby sell, assign and transfer
unto
Please insert social securities or
other identifying number of assignee
___________________________________________________
___________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address, Including Postal Zip Code, of
Assignee) ______________ TrUEPrS of a proportionate undivided beneficial
interest represented by the within Certificate, and do hereby irrevocably
constitute and appoint _________ Attorney to transfer the said TrUEPrS on the
books of the within-named Trust with full power of substitution in the premises.
Dated: ______________________
_______________________________________________
NOTICE: The Signature to this assignment must correspond with the name as
written upon the face of the Certificate in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:_______________________________________
The Signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved
signature guarantee medallion program), pursuant to S.E.C. Rule
17Ad-15.