Exhibit 99k(11)
DISTRIBUTION TRUST AGREEMENT
of
NAB DISTRIBUTION TRUST
Dated as of September __, 1998
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINED TERMS
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .6
ARTICLE II
THE DISTRIBUTION TRUST
Section 2.01. Name.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.02. Office of the Delaware Trustee; Principal Place of Business. . 12
Section 2.03. Contribution of Trust Property; Organizational and On-Going
Expenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.04. Declaration of Trust.. . . . . . . . . . . . . . . . . . . . . 12
Section 2.05. Authorization to Enter into Certain Transactions.. . . . . . . 13
Section 2.06. Assets of Trust. . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.07. Title to Trust Property. . . . . . . . . . . . . . . . . . . . 15
ARTICLE III
SECURITIES
Section 3.01. General Provisions Regarding Common Securities.. . . . . . . . 15
Section 3.02. Transfer of Common Securities. . . . . . . . . . . . . . . . . 16
ARTICLE IV
PAYMENT ACCOUNTS
Section 4.01. Payment Account. . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE V
INCOME ENTITLEMENTS
Section 5.01. Income Entitlements. . . . . . . . . . . . . . . . . . . . . . 17
Section 5.02. Payment Procedures.. . . . . . . . . . . . . . . . . . . . . . 18
Section 5.03. Tax Returns and Reports. . . . . . . . . . . . . . . . . . . . 18
Section 5.04. Payment of Taxes, Duties, Etc. . . . . . . . . . . . . . . . . 19
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Representations and Warranties of the Property Trustee and
the Delaware Trustee.. . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE VII
THE DISTRIBUTION TRUSTEES; THE ADMINISTRATORS
Section 7.01. Certain Duties and Responsibilities. . . . . . . . . . . . . . 20
Section 7.02. Certain Notices. . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.03. Certain Rights of the Distribution Trustees and
Administrators.. . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.04. Not Responsible for Recitals . . . . . . . . . . . . . . . . . 25
Section 7.05. Corporate Property Trustee Required; Eligibility of
Distribution Trustees and Administrators.. . . . . . . . . . . 26
Section 7.06. Co-Distribution Trustees and Separate Trustee. . . . . . . . . 27
Section 7.07. Resignation and Removal; Appointment of Successor. . . . . . . 28
Section 7.08. Acceptance of Appointment by Successor.. . . . . . . . . . . . 29
Section 7.09. Merger, Conversion, Consolidation or Succession to
Business.3 . . . . . . . . . . . . . . . . . . . . . . . . . . .0
Section 7.10. Trustee May File Proofs of Claim.. . . . . . . . . . . . . . . 30
Section 7.11. Reports by Property Trustee. . . . . . . . . . . . . . . . . . 31
Section 7.12. Number of Distribution Trustees. . . . . . . . . . . . . . . . 31
Section 7.13. Delegation of Power. . . . . . . . . . . . . . . . . . . . . . 31
Section 7.14. Appointment of Administrators. . . . . . . . . . . . . . . . . 32
ARTICLE VIII
DISSOLUTION
Section 8.01. Dissolution Upon Expiration Date.. . . . . . . . . . . . . . . 32
Section 8.02. Early Termination. . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.03. Termination. . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 9.02. Separability.. . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 9.03. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 9.04. Income Entitlements Due on Non-Business Day. . . . . . . . . . 35
Section 9.05. Successors.. . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 9.06. Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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Section 9.07. Reports, Notices and Demands.. . . . . . . . . . . . . . . . . 35
Section 9.08. Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . . 36
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Distribution Trust Agreement, dated as of September __, 1998, among
(i) Wilmington Trust Company, a Delaware banking corporation, as property
trustee (in such capacity and including its successor in interest in such
capacity or any successors appointed as provided herein, the "Property
Trustee", (ii) Wilmington Trust Company, as Delaware trustee (in such
capacity, and including any successors in interest in such capacity or any
successor Delaware Trustee appointed as provided herein, (the "Delaware
Trustee"), (iii) __________ , ___________and _____________, as Trustees (in
such capacities and not in their individual capacities, and including any
successors appointed as provided herein, the "NAB Trustees") ( the NAB
Trustees, the Property Trustee and the Delaware Trustee are referred to
collectively herein as the "Distribution Trustees"), (iv) the individuals
selected by the Depositor from time to time in accordance with Section 7.16
hereof to act as administrators with respect to the Distribution Trust (in
such capacities and not in their individual capacities, the
"Administrators"), and (v) Cuzzano (UK) Company, a special purpose company
incorporated with unlimited liability under the laws of England and Wales
and domiciled in the United Kingdom (the "U.K. Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the NAB Exchangeable Preferred Trust (the "Issuing Trust")
intends to offer (the "Offering") Trust Units Exchangeable for Preference
Shares-SM- ("TrUEPrS-SM-") and use the proceeds of the Offering to purchase
___% Mandatorily Redeemable Debt Securities (the "Debt Securities"), with
an aggregate principal amount equal to such proceeds, issued by the U.K.
Company.
WHEREAS, the U.K. Company intends to use the proceeds from the sale of
the Debt Securities to purchase at a price equal to their liquidation
preference fully paid non-dividend paying preference shares, liquidation
preference US$25 per share (the" Jersey Preference Shares"), issued by
Cuzzano (Investments) Limited, an exempt company with limited liability
incorporated under the laws of, and domiciled in, Jersey, Channel Islands
(the "Jersey Subsidiary").
WHEREAS, the Jersey Subsidiary intends to use the proceeds from the
sale of the Jersey Preference Shares to purchase American Depository Shares
("ADSs"), each representing two fully-paid non-dividend paying preference
shares, with a liquidation preference US$12.50 per share (the "Preference
Shares") of National Australia Bank Limited (A.C.N. 004 044 937) (including
any successors or assigns, the "Depositor"), at a price per ADS equal to
the aggregate liquidation preference of the two Preference Shares
represented thereby.
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Service xxxx of Xxxxxxx Xxxxx & Co., Inc.
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WHEREAS, there is hereby established a business trust to be
wholly-owned by the Depositor (the "Distribution Trust") under the Delaware
Business Trust Act pursuant to this Distribution Trust Agreement and the
Certificate of Trust of the Distribution Trust filed with the Secretary of
State of the State of Delaware on September __, 1998 (the "Certificate of
Trust"), which Certificate of Trust is attached hereto as Exhibit A.
WHEREAS, pursuant to a Common Securities Subscription Agreement, dated
_______________________, 1998 (the "Common Securities Subscription
Agreement"), the Depositor will use all the proceeds from the sale of the
Preference Shares to make one or more capital contributions (the "Capital
Contributions") to the Distribution Trust.
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
by this Distribution Trust Agreement and the Common Securities Subscription
Agreement intend to provide for, among other things, (i) the use of the
Capital Contributions to make the Distribution Loans to (A) a Delaware
limited liability company that is a wholly-owned subsidiary of the
Depositor (including any of its successors and assigns, the "USLLC"),
and/or (B) any NAB Borrower, (ii) the payment of Income Entitlements (as
defined herein) to the U.K. Company or the Depositor, as the case may be,
as the income beneficiaries of the Distribution Trust, and (iii) the
appointment of the Administrators.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit
of the other parties and the U.K Company, hereby agrees, intending to be
legally bound, as follows:
ARTICLE I
DEFINED TERMS
Section I.01. DEFINITIONS. For all purposes of this Distribution Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Issuing Trust
Agreement, either directly or by reference therein, have the meanings assigned
to them therein;
(c) The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
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(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles as in effect at the time of computation;
(e) Unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Distribution Trust Agreement; and
(f) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Distribution Trust Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Additional Capital Contribution" has the meaning specified in Section
2.03.
"Administrators" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means the board of directors of the Depositor or
any committee of the board of directors of the Depositor designated by the
board of directors of the Depositor and comprised of two or more members of
the board of directors of the Depositor and/or officers of the Depositor.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, and to be in full force and
effect on the date of such certification, and delivered to the Distribution
Trustees.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday or
Friday which is not a day on which banking institutions in Melbourne,
Australia, New York, New York or the NAB Borrower's Principal Place of
Business are authorized or required by law or executive order to remain
closed.
"Capital Contributions" has the meaning specified in the recitals and
Section 2.03 to this Distribution Trust Agreement.
"Certificate of Trust" has the meaning specified in the recitals to
this Distribution Trust Agreement.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission or any successor thereto.
"Common Securities" means an undivided beneficial interest in the
assets of the Distribution Trust, having the rights provided therefor in
this Distribution Trust Agreement, including the right to receive
distributions and a liquidation distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached hereto
as Exhibit B.
"Common Securities Subscription Agreement" has the meaning specified
in the recitals to this Distribution Trust Agreement.
"Corporate Trust Office" means the principal office of the Property
Trustee located in the Delaware which at the time of the execution of this
Distribution Trust Agreement is located at _______________________.
"Debt Securities" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Depositor" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Distribution Loan" means, any outstanding loan made by the
Distribution Trust to the USLLC or a NAB Borrower pursuant to a Loan
Agreement.
"Distribution Trust" means the NAB Distribution Trust governed by this
Distribution Trust Agreement.
"Distribution Trust Agreement" means this Distribution Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including all Exhibits
hereto.
"Distribution Trustees" has the meaning specified in the preamble to
this Distribution Trust Agreement.
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"Early Termination Event" has the meaning specified in Section 8.02.
"Expiration Date" has the meaning specified in Section 8.01.
"Income Entitlements" means the non-cumulative income payments to the
U.K. Company or the Depositor, as the case may be, that they are entitled
to receive as the income beneficiaries of the Distribution Trust as
provided in this Distribution Trust Agreement.
"Interest Payment Date" means March 31, June 30, September 30 and
December 31 of each year, commencing on December 31, 1998.
"Issue Date" means, collectively, each original issue date of the
TrUEPrS.
"Issuing Trust" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Issuing Trust Agreement" means the amended and restated agreement,
dated as of September 10, 1998, among ML IBK Positions, Inc., as sponsor,
Xxxxx X. Xxxxxx, as depositor, the Trustees of the Issuing Trust and the
Holders from time to time.
"Jersey Preference Shares" has the meaning specified in the recitals
to this Distribution Trust Agreement.
"Jersey Subsidiary" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever.
"Loan Agreement" means any agreement between the Distribution Trust
and the USLLC or a NAB Borrower, as the same may be amended or replaced in
accordance with the terms thereof.
"NAB Borrower" means NAB or any direct or indirect wholly-owned
subsidiary or branch thereof which may be at any time the obligor of a loan
made by (i) the USLLC from the proceeds of the Distribution Loan pursuant
to a USLLC Loan Agreement, or (ii) the Distribution Trust from the Capital
Contributions and pursuant to a Loan Agreement.
"NAB Borrower's Principal Place of Business" means the city in which
the principal place of business of any NAB Borrower located outside of
Australia is located at the relevant time (which initially shall be
Wellington, New Zealand).
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"NAB Trustees" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Note" means any promissory note of the USLLC or any NAB Borrower,
evidencing, its obligations under any Distribution Loan issued pursuant to
the applicable Loan Agreement.
"Offering" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Paying Agent" means initially, The Property Trustee or any paying
agent or co-paying agent appointed by the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained with the Property Trustee in its trust department
for the benefit of the U.K. Company as income beneficiary of the
Distribution Trust and the Depositor as the holder of the Common Securities
and the residual interest in the Distribution Trust, in which account all
amounts paid in respect of the Notes will be held and from which the
Property Trustee, through the Paying Agent, shall pay Income Entitlements
in accordance with Section 5.01.
"Payment Prohibition" means, with respect to any Income Entitlement
payable to the U.K. Company on any Interest Payment Date, other than in
connection with a redemption, reduction in capital followed by redemption
or buy-back of NAB Preference Shares, (i) an Exchange Event has occurred
prior to such date, (ii) the amount of such Income Entitlement payable on
such date, together with the aggregate amount of dividends paid on or
before such date during the then current fiscal year of the Depositor on
any preference shares or ordinary shares of the Depositor, would exceed the
Depositor's earnings during the prior fiscal year, or (iii) the payment of
such Income Entitlement would be prohibited or limited by applicable law,
regulation or order or by any instrument or agreement to which the
Depositor is subject.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited partnership, joint venture, association, joint
stock company, company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof,
or any other entity of whatever nature.
"Preference Shares" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"Property Trustee" has the meaning specified in the preamble to this
Distribution Trust Agreement.
"Quarterly Payment Amount" has the meaning specified in Section 5.01.
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"Redemption Payment Date" has the meaning specified in Section 5.01.
"Relevant Trustee" has the meaning specified in Section 7.08.
"Responsible Officer" when used with respect to the Property Trustee
means any officer assigned to Corporate Trust Administration, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the
above designated officers and having direct responsibility for the
administration of this Distribution Trust Agreement, and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Securities Act" means the U.S. Securities Act of 1933, as amended,
and any successor statute thereto, in each case as amended from time to
time.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939 or
any successor statute, in each case as amended from time to time.
"Trust Property" means (a) the amounts referred to in Section 2.03,
(b) after the Distribution Loan is made, the Notes and the Distribution
Loan represented thereby, (c) any payments thereon (including those
deposited in the Payment Account), and (d) all proceeds and rights in
respect of the foregoing or any other property and assets for the time
being held or deemed to be held by the Property Trustee on behalf of the
Distribution Trust pursuant to this Distribution Trust Agreement.
"U.K. Company" has the meaning specified in the recitals to this
Distribution Trust Agreement.
"USLLC" has the meaning specified in the recitals to this Distribution
Trust Agreement.
"USLLC Loan Agreement" means any agreement between the USLLC and any
NAB Borrower with respect to any loan made by the USLLC to such NAB
Borrower as the same may be amended or replaced in accordance with the
terms thereof.
ARTICLE II
THE DISTRIBUTION TRUST
Section 2.01. NAME. The Distribution Trust shall be known as "NAB
Distribution Trust," as such name may be modified from time to time by the NAB
Trustees and the Administrators following the consent of the Depositor and
written notice to the U.K. Company and the Distribution Trustees, in which name
the Administrators and the Distribution Trustees
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may engage in the transactions contemplated hereby, make and execute contracts
and other instruments on behalf of the Distribution Trust and xxx and be sued.
Section 2.02. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is Wilmington
Trust Company, ____________________________ Attention: ______________, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the U.K. Company and the Depositor. The principal executive
office of the Distribution Trust is in care of
__________________________________________, Attention: Office of the Secretary.
Section 2.03. CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL AND ON-GOING
EXPENSES.
The Property Trustee acknowledges receipt in trust from
_______________________ (the "Initial Depositor") in connection with this
Distribution Trust Agreement of the sum of US$1, which constitutes the initial
Trust Property. After the Depositor receives the initial proceeds under the
ADSs Subscription Agreement, the Depositor shall contribute such proceeds to the
Distribution Trust pursuant to the terms of the Common Securities Subscription
Agreement (the "Initial Capital Contribution"). The Property Trustee, on behalf
of the Distribution Trust, will acknowledge receipt thereof and the Distribution
Trust will make the Distribution Loan to the USLLC in a principal amount equal
to the amount of the Initial Capital Contribution. The Depositor may, from time
to time within 30 days from September __, 1998, contribute any additional
proceeds it receives under the ADSs Subscription Agreement to the Distribution
Trust pursuant to the terms of the Common Securities Subscription Agreement and
may make additional capital contributions in an amount of up to US$ ___________
pursuant to the terms of the Common Securities Subscription Agreement (the
"Additional Capital Contributions," and together with the Initial Capital
Contribution, the "Capital Contributions"). The aggregate principal amount of
the Distribution Loans shall be increased from time to time by the aggregate
amount of any Additional Capital Contributions received by the Property Trustee
on behalf of the Distribution Trust pursuant to the terms of the Common
Securities Subscription Agreement. The obligation of the USLLC and any NAB
Borrower under any Distribution Loan shall be evidenced by one or more
promissory notes (the "Notes") in an aggregate principal amount equal to the
aggregate principal amount of such Distribution Loan.
Upon the written request of any Distribution Trustee, the Depositor shall
pay all organizational and on-going reasonable expenses of the Distribution
Trust as they arise pursuant to the terms of the Common Securities Subscription
Agreement. As provided in the Common Securities Subscription Agreement, the
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04. DECLARATION OF TRUST.
The exclusive purposes and functions of the Distribution Trust are to (a)
use the Capital Contributions received to make the Distribution Loan to the
USLLC and any NAB Borrower, (b)
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distribute Income Entitlements to the U.K. Company or the Depositor, as the case
may be, as the income beneficiaries of the Distribution Trust, in accordance
with the terms hereof, (c) upon liquidation of the Distribution Trust,
distribute the residual assets to the Depositor, as the holder of the Common
Securities and the residual interest in the Distribution Trust, and (d) engage
in only those other activities necessary, convenient or incidental thereto. The
Depositor hereby appoints the Distribution Trustees as trustees of the
Distribution Trust, to have all the rights, powers and duties to the extent set
forth herein, and the Distribution Trustees hereby accept such appointment;
provided, however, that after the Exchange Date, the Distribution Trust shall
have the power to change its jurisdiction of organization to any other
jurisdiction, whether by reconstitution, merger, consolidation or otherwise.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Distribution Trust, the Depositor and the U.K. Company. The Depositor hereby
appoints the Administrators, with such Administrators having all rights, powers
and duties set forth herein with respect to accomplishing the purposes of the
Distribution Trust, and the Administrators hereby accept such appointment,
provided, however, that it is the intent of the parties hereto that such
Administrators shall not be trustees or, to the fullest extent permitted by law,
fiduciaries with respect to the Distribution Trust and this Distribution Trust
Agreement shall be construed in a manner consistent with such intent. The
Delaware Trustee shall be one of the Distribution Trustees of the Distribution
Trust for the sole and limited purpose of fulfilling the requirements of Section
3807 of the Delaware Business Trust Act and for taking such actions as are
required to be taken by a Delaware trustee under the Delaware Business Trust
Act, and the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrators set forth herein.
Section 2.05. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Distribution Trustees and the Administrators shall conduct the
affairs of the Distribution Trust in accordance with the terms of this
Distribution Trust Agreement. Subject to the limitations set forth in paragraph
(b) of this Section and in accordance with the following provisions (i), (ii)
and (iii), the Distribution Trustees and the Administrators shall act as
follows:
(i) Each Administrator, acting singly or jointly, is authorized, on
behalf of the Distribution Trust, to:
(A) execute and deliver an application for a taxpayer
identification number for the Distribution Trust;
(B) execute on behalf of the Distribution Trust any
documents that the Administrators have the power to execute pursuant
to this Distribution Trust Agreement, including without limitation,
any Loan Agreement; and
(C) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of this
Distribution Trust Agreement (and any
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actions taken in furtherance of the above prior to the date of this
Distribution Trust Agreement by the Administrators are hereby ratified
and confirmed in all respects).
(ii) The Property Trustee shall have the power and authority to act
on behalf of the Distribution Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the disbursements of the proceeds from the Capital
Contributions to the USLLC or any NAB Borrower pursuant to the related
Loan Agreement and the receipt of the Notes;
(C) the receipt and collection of interest, principal and
any other payments made in respect of the Notes and the deposit of
such amounts in the Payment Account;
(D) the distribution of Income Entitlements to the U.K.
Company or the Depositor in accordance with the terms of this
Distribution Trust Agreement;
(E) the sending of notices of default and other information
regarding the Notes to the holder of the Common Securities and the
U.K. Company in accordance with this Distribution Trust Agreement;
(F) the distribution of the Trust Property in accordance
with the terms of this Distribution Trust Agreement;
(G) to the extent provided in this Distribution Trust
Agreement, the winding up of the affairs of the Distribution Trust and
the execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware; and
(H) after an Exchange Event (as defined in the Issuing
Trust Agreement) (unless such Exchange Event is caused by the Property
Trustee), compliance with the provisions of this Distribution Trust
Agreement and the taking of any action to give effect to the terms of
this Distribution Trust Agreement and protect and conserve the Trust
Property for the benefit of the U.K. Company and the Depositor;
provided, however, that nothing in this Section 2.05(a)(ii) shall require
the Property Trustee to take any action that is not otherwise required by
this Distribution Trust Agreement.
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(iii) Each Distribution Trustee, acting singly or jointly, is
authorized, on behalf of the Distribution Trust, to elect to treat the
Distribution Trust as an entity that will be disregarded as an entity
separate from its owner for United States Federal income tax purposes.
(b) So long as this Distribution Trust Agreement remains in
effect, the Distribution Trust (or the Distribution Trustees or
Administrators acting on behalf of the Distribution Trust) shall not
undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the
Distribution Trustees nor the Administrators shall (i) acquire any
investments or engage in any activities not expressly authorized by
this Distribution Trust Agreement, (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to the U.K. Company,
except as expressly provided herein, in the Loan Agreement or in the
Notes, (iii) take any action that would reasonably be expected to
cause the Distribution Trust to become taxable as a corporation for
United States Federal income tax purposes, (iv) incur any indebtedness
for borrowed money or issue any other debt, or (v) take or consent to
any action that would result in the placement of a Lien on any of the
Trust Property. The Property Trustee shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Distribution Trust, the
U.K. Company or the Depositor.
Section 2.06. ASSETS OF TRUST.
The assets of the Distribution Trust shall consist solely of the Trust
Property.
Section 2.07. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Distribution Trust, the U.K. Company
and the Depositor in accordance with this Distribution Trust Agreement.
ARTICLE III
SECURITIES
Section 3.01. GENERAL PROVISIONS REGARDING COMMON SECURITIES.
(a) The Administrators are hereby authorized to issue Common Securities
pursuant to the Common Securities Subscription Agreement. Capital contributed
by the Depositor pursuant to the Common Securities Subscription Agreement will
be applied to subscribe for additional Common Securities.
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(b) The Distribution Trust may treat the Person in whose name any Common
Securities Certificate shall be registered on the books and records maintained
by or on behalf of the Distribution Trust as the sole owner of such Common
Securities Certificate and the Common Securities represented thereby for
purposes of receiving distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claims to or
interest in such Common Securities Certificate on the part of any Person,
whether or not the Distribution Trust, the Distribution Trustees or any other
Person shall have actual or other notice to the contrary.
Section 3.02. TRANSFER OF COMMON SECURITIES.
(a) Common Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in the terms of the Common
Securities. Any transfer or purported transfer of any Common Security not made
in accordance with this Declaration shall be null and void.
(b) The Distribution Trustees shall provide for the registration of the
Common Securities and of the transfer of Common Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Distribution Trustees may require) by the holder thereof in respect of any tax
or other governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Common Securities Certificate, the
Distribution Trustees shall cause one or more new Common Securities Certificates
to be issued in the name of the designated transferee or transferees. Every
Common Security Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Administrators duly executed by the holder or such holder's attorney duly
authorized in writing. Each Common Security Certificate surrendered for
registration of transfer shall be cancelled by the Distribution Trustees. A
transferee of a Common Security Certificate shall be entitled to the rights and
subject to the obligations of a holder hereunder upon the receipt by such
transferee of a Common Security Certificate. By its acceptance of a Common
Security Certificate, each transferee shall be deemed to have agreed to be bound
this Declaration.
ARTICLE IV
PAYMENT ACCOUNTS
Section 4.01. PAYMENT ACCOUNT.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and its agents shall have exclusive
control and sole right of withdrawal with respect to the Payment Account for the
purpose of making deposits in, and withdrawals from, the Payment Account in
accordance with this Distribution Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the U.K. Company and the Depositor, as the case may be, as the income
beneficiaries of the Distribution
16
Trust, and for distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending distribution
thereof.
ARTICLE V
INCOME ENTITLEMENTS
Section 5.01. INCOME ENTITLEMENTS.
(a) Income Entitlements shall be payable on each Interest Payment Date in
an amount equal to the interest payable on the Notes on such Interest Payment
Date (the "Quarterly Payment Amount"); PROVIDED, HOWEVER, that the amount paid
on the first Interest Payment Date immediately following any Redemption Payment
Date (as defined below) shall be an amount equal to the difference between the
Quarterly Payment Amount and the amount paid on the Redemption Payment Date
pursuant to the following sentence. An Income Entitlement shall also be payable
on the Exchange Date for any Exchange Event resulting from a redemption,
reduction in capital followed by redemption or buy-back of the Preference Shares
for cash unless such date is an Interest Payment Date (the "Redemption Payment
Date") in an amount equal to the interest accrued on the Notes from and
including the Interest Payment Date immediately preceding the Redemption Payment
Date to but excluding the Redemption Payment Date. Notwithstanding the
foregoing, Income Entitlements shall only be paid if (i) the Distribution Trust
has funds then on hand and available in the Payment Account for the full payment
of such Income Entitlements and (ii) the Property Trustee has not received
notice from the Depositor pursuant to the Common Securities Subscription
Agreement of the occurrence of a Payment Prohibition prior to such Interest
Payment Date.
On the date of the Initial Capital Contribution, a facility fee payable to
the Distribution Trust pursuant to the Loan Agreement with the USLLC shall be
paid to the U.K. Company as an Income Entitlement to the extent such facility
fee is received by the Property Trustee, on behalf of the Distribution Trust.
Income Entitlements to be paid (i) prior to the Exchange Date shall be paid
to the U.K. Company, (ii) after the Exchange Date shall be paid to the
Depositor, (iii) on the Exchange Date, in the case of an Exchange Event
resulting from the redemption, reduction of capital followed by redemption or
buy-back of the Preference Shares for cash, shall be paid to the U.K. Company
(iv) on the Exchange Date, in the case of an Exchange Event other than one
resulting from the redemption, reduction in capital followed by redemption or
buy-back of the Preference Shares for cash, shall be paid to the Depositor.
17
(b) Notwithstanding anything to the contrary in this Section 5.01, (i)
the right of the U.K. Company to receive Income Entitlements will not
represent an absolute ownership interest in the Distribution Trust or the
income thereof, but rather an entitlement to receive interest payments on any
Distribution Loan (including the facility fee) only to the extent such
payments are actually distributed as Income Entitlements, (ii) if any Income
Entitlement payable on any Interest Payment Date is not paid on such date for
any reason, the Distribution Trust will have no obligation to pay any such
Income Entitlement to the U.K. Company, whether or not Income Entitlements
are paid on any future Interest Payment Date, and (iv) the Depositor will be
entitled to any Income Entitlement which is not paid to the U.K. Company
prior to the close of business on the third Business Day after the date on
which such Income Entitlement is payable under Section 5.01(a) and other
income, if any, of the Distribution Trust.
(c) Pursuant to the terms of the Common Securities Subscription
Agreement, the Depositor is required to transmit to the Property Trustee, the
Delaware Trustee and the U.K. Company, no later than three Business Days
prior to any Interest Payment Date or Redemption Payment Date, notice of any
Payment Prohibition which will exist on such Interest Payment Date.
Section 5.02. PAYMENT PROCEDURES.
Payments of Income Entitlements shall be made by wire transfer on the date
of the Initial Capital Contribution, each Interest Payment Date and, if
applicable, the Redemption Payment Date to the bank account designated by the
U.K. Company or the Depositor, as applicable.
Section 5.03. TAX RETURNS AND REPORTS.
The Administrators shall prepare (or cause to be prepared) and file all
United States Federal, state and local tax and information returns and reports
required to be filed by or in respect of the Distribution Trust. In this
regard, the Administrators shall (a) prepare and file (or cause to be prepared
and filed) all Internal Revenue Service forms required to be filed in respect of
the Distribution Trust in each taxable year of the Distribution Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to the Depositor all
Internal Revenue Service forms required to be provided by the Distribution
Trust. The Administrators shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Distribution Trustees shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any interest payments (including the facility fee)
received on the Notes from the USLLC and any Income Entitlements payable to the
U.K. Company or the Depositor.
On or before December 15 of each year during which the Note is outstanding,
commencing December 15, 1998, the Administrators shall furnish to the Property
Trustee such
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information as may be necessary by the Property Trustee in order that the
Property Trustee may prepare the information which it is required to report for
such year on Internal Revenue Service Forms 1096 and 1099 pursuant to Section
6049 of the Code.
Section 5.04. PAYMENT OF TAXES, DUTIES, ETC. OF THE DISTRIBUTION TRUST.
The Property Trustee shall promptly pay, or cause the Administrators to pay
in connection with the filing of any tax returns or reports pursuant to Section
5.03, any taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Distribution Trust by the United States or any
other taxing authority.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the U.K. Company that:
(a) The Property Trustee is a banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of Delaware,
with trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of this Distribution Trust Agreement.
(b) The execution, delivery and performance by the Property Trustee of
this Distribution Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Property Trustee; and this Distribution
Trust Agreement has been duly executed and delivered by the Property Trustee,
and, assuming due authorization, execution and delivery hereof by the other
parties hereto, constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
(c) The Delaware Trustee is duly organized, validly existing and in good
standing as a banking corporation under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Distribution Trust Agreement.
(d) The execution, delivery and performance by the Delaware Trustee of
this Distribution Trust Agreement has been duly authorized by all necessary
corporate action on the part of the
19
Delaware Trustee; and this Distribution Trust Agreement has been duly executed
and delivered by the Delaware Trustee, and, assuming due authorization,
execution and delivery hereof by the other parties hereto, constitutes a legal,
valid and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(e) The Delaware Trustee is an entity which has, and at all times during
the term of the Distribution Trust will maintain, its principal place of
business in the State of Delaware.
(f) The Property Trustee is a state-chartered bank and at the time of
appointment has securities rated in one of the three highest categories by a
nationally recognized statistical rating organization and has capital and
surplus of at least $50,000,000.
(g) Nothing in this Distribution Trust Agreement (other than
Section 5.01 hereof) is intended to prevent or exclude the U.K. Company from
enforcing its rights hereunder against the Distribution Trustees.
ARTICLE VII
THE DISTRIBUTION TRUSTEES; THE ADMINISTRATORS
Section 7.01. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Distribution Trustees and the
Administrators shall be as provided by this Distribution Trust Agreement.
Notwithstanding the foregoing, no provision of this Distribution Trust Agreement
shall require the Distribution Trustees or the Administrators to expend or risk
their own funds or otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Distribution Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Distribution Trustees
or the Administrators shall be subject to the provisions of this Section.
Nothing in this Distribution Trust Agreement shall be construed to release an
Administrator or any of the Distribution Trustees from liability for its own
willful misfeasance, bad faith, gross negligence or reckless disregard of its
duties hereunder. To the extent that, at law or in equity, a Distribution
Trustee or Administrator has duties and liabilities relating to the Distribution
Trust, the U.K. Company or the Depositor, such Distribution Trustee or
Administrator shall not be liable to the Distribution Trust, to the U.K. Company
or to the Depositor for such Distribution Trustee's or Administrator's good
faith reliance on the provisions of this Distribution Trust Agreement. The
provisions of this Distribution Trust Agreement, to the extent that they
restrict the duties and liabilities of the Distribution Trustees and
Administrators otherwise existing at law or in equity,
20
are agreed by the U.K. Company to replace such other duties and liabilities of
the Distribution Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Income Entitlements, shall be made only from the cash received from
interest payments on the Notes (including the facility fee) forming part of the
Trust Property and only if such cash shall be sufficient to enable the Property
Trustee or a Paying Agent to make such payments in full in accordance with the
terms hereof. Each of the U.K. Company and the Depositor, by its acceptance of
any Income Entitlements, agrees that it will look solely to such cash to the
extent it is legally available for the payment to it of each Income Entitlement
as herein provided and that neither the Distribution Trustees nor the
Administrators are personally liable to it for any amount paid or payable in
respect of the Income Entitlements or for any other liability in respect of the
Income Entitlements. This Section 7.01(b) does not limit the liability of the
Distribution Trustees or any Paying Agent expressly set forth elsewhere in this
Trust Agreement.
(c) The Distribution Trustees and Administrators shall undertake to
perform only such duties as are specifically set forth in this Distribution
Trust Agreement (including pursuant to Section 7.10), and no implied covenants
shall be read into this Distribution Trust Agreement against the Distribution
Trustees or Administrators.
(d) No provision of this Distribution Trust Agreement shall be construed
to relieve any Distribution Trustee or Administrator from liability for its own
willful misfeasance, bad faith, gross negligence or reckless disregard of its
duties hereunder except that:
(i) the duties and obligations of the Distribution Trustees, and
Administrators shall be determined solely by the express provisions of this
Distribution Trust Agreement (including pursuant to Section 7.10), and the
Distribution Trustees and Administrators shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Distribution Trust Agreement (including pursuant to Section 7.10); and
(ii) in the absence of bad faith on the part of any Distribution
Trustee or Administrator, the Distribution Trustees and Administrators may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to them and conforming to the requirements of this Distribution Trust
Agreement;
(e) No Distribution Trustee or Administrator shall be liable for any error
of judgment made in good faith by an authorized officer of such Distribution
Trustee or Administrator, unless it shall be proved that such Distribution
Trustee or Administrator was grossly negligent in ascertaining the pertinent
facts;
(f) No Distribution Trustee or Administrator shall be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of any NAB
21
Trustee relating to the time, method and place of conducting any proceeding for
any remedy available to such Distribution Trustee or Administrator, or
exercising any trust or power conferred upon such Distribution Trustee or
Administrator under this Distribution Trust Agreement;
(g) The Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Notes and the Payment Account shall be
to deal with such property in a reasonably prudent and similar manner as the
Property Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property Trustee under
this Distribution Trust Agreement;
(h) The Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree with any NAB Trustee; and money
held by the Property Trustee shall be segregated from other funds held by and
shall be held in the Payment Account maintained by the Property Trustee pursuant
to Section 4.01, except to the extent otherwise required by law;
(i) The Distribution Trustees and Administrators shall not be responsible
for monitoring the compliance by the Administrators with their respective duties
under this Distribution Trust Agreement, nor shall any Distribution Trustee or
Administrator be liable for the default or misconduct of any other Distribution
Trustee or the Administrators;
(j) No provision of this Distribution Trust Agreement shall require any
Distribution Trustee or Administrator to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if such Distribution
Trustee or Administrator shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Distribution Trust Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it; and
(k) The Distribution Trustees shall elect, on behalf of the Distribution
Trust, to treat the Distribution Trust as an entity that will be disregarded as
an entity separate from its owner for United States Federal income tax purposes.
(l) Whenever the Distribution Trust Agreement requires or permits an
action to be taken based upon a vote of the Distribution Trustees, such action
shall be taken in accordance with the majority vote of the Distribution Trustees
then so acting at a meeting duly called by any Distribution Trustee or any
Administrator upon at least five Business Days' notice to the other Distribution
Trustees and Administrators. The quorum for any such meeting shall be three NAB
Trustees present in person or by proxy.
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Section 7.02. CERTAIN NOTICES.
Within five Business Days after the occurrence of any Exchange Event
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee, shall transmit, in the manner and to the extent provided in Section
9.07, notice of such Exchange Event to the other Distribution Trustees and the
Administrators.
Section 7.03. CERTAIN RIGHTS OF THE DISTRIBUTION TRUSTEES AND
ADMINISTRATORS.
Subject to the provisions of Section 7.01:
(a) no Distribution Trustee shall have any duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or reregistration thereof;
(b) any Distribution Trustee or Administrator may consult with counsel of
its own choosing (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice, the Distribution Trustees and Administrators
shall have the right at any time to seek instructions concerning the
administration of this Distribution Trust Agreement from any court of competent
jurisdiction;
(c) no Distribution Trustee or Administrator shall be under any obligation
to exercise any of the rights or powers vested in it by this Distribution Trust
Agreement at the request or direction of any NAB Trustee pursuant to this
Distribution Trust Agreement, unless the NAB Trustee shall have offered to such
Distribution Trustee or Administrator security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided that, nothing contained in
this Section 7.03(c) shall be taken to relieve any Distribution Trustee or
Administrator, upon the occurrence of an Exchange Event, of its obligation to
exercise the rights and powers vested in it by this Distribution Trust
Agreement;
(d) no Distribution Trustee or Administrator shall be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by the Depositor, but any
Distribution Trustee and Administrator may make such further inquiry or
investigation into such facts or matters as it may see fit;
(e) any Distribution Trustee or Administrator may execute any of the
trusts or powers hereunder or perform any of its duties hereunder either
directly or by or through its agents or attorneys, provided that such
Distribution Trustee or Administrator shall be responsible for any
23
willful misfeasance, bad faith, gross negligence or reckless disregard of the
duties on the part of any such agent or attorney;
(f) whenever in the administration of this Distribution Trust Agreement
any such Distribution Trustee or Administrator shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or taking any
other action hereunder, such Distribution Trustee or Administrator (i) may
request that a meeting of the Distribution Trustees be held to determine the
instructions to be so given by a vote of the Distribution Trustees, (ii) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be fully protected in acting in
accordance with such instructions;
(g) except as otherwise expressly provided by this Distribution Trust
Agreement, no Distribution Trustee or Administrator shall be under any
obligation to take any action that is discretionary under the provisions of this
Distribution Trust Agreement. No provision of this Distribution Trust Agreement
shall be deemed to impose any duty or obligation on any Distribution Trustee or
Administrator to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which it shall be
illegal, or in which such Distribution Trustee or Administrator shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to any Distribution Trustee or
Administrator shall be construed to be a duty;
(h) if (i) in performing its duties under this Distribution Trust
Agreement any Distribution Trustee or Administrator is required to decide
between alternative courses of action or (ii) in construing any of the
provisions of this Distribution Trust Agreement that such Distribution Trustee
or Administrator finds the same ambiguous or inconsistent with any other
provisions contained herein or (iii) such Distribution Trustee or Administrator
is unsure of the application of any provision of this Distribution Trust
Agreement, then, such Distribution Trustee or Administrator shall call a meeting
of the Distribution Trustees to determine the course of action to be taken by a
vote of the Distribution Trustees and such Distribution Trustee or Administrator
shall take such action, or refrain from taking such action, as determined by
such vote; provided, however, that if such vote is not taken within five
Business Days after such a meeting is called, it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this
Distribution Trust Agreement as it shall deem advisable and in the best
interests of the Distribution Trust, in which event such Distribution Trustee or
Administrator shall have no liability except for its own willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties hereunder; and
provided, further, that this Section 7.03(h) shall not apply to the payment or
non-payment of Income Entitlements pursuant to Section 5.01.
(i) when any Distribution Trustee or Administrator incurs expenses or
renders services in connection with an Exchange Event, such expenses (including
the reasonable fees and expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights generally; and
24
(j) no Distribution Trustee or Administrator shall be charged with
knowledge of an Exchange Event unless such Exchange Event has occurred as a
result of the act or failure to act of such Distribution Trustee or
Administrator or a Responsible Officer of such Distribution Trustee or
Administrator obtains actual knowledge of such event or such Distribution
Trustee or Administrator receives written notice of such event.
Section 7.04. NOT RESPONSIBLE FOR RECITALS .
The recitals contained herein shall be taken as the statements of the
Distribution Trust, and the Distribution Trustees and the Administrators do not
assume any responsibility for their correctness.
25
Section 7.05. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
DISTRIBUTION TRUSTEES and Administrators.
(a) There shall at all times be a Property Trustee hereunder that is a
national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and that has a combined capital and surplus of at least
$50,000,000. If any Property Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Property Trustee shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Property Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. At the time of appointment,
the Property Trustee must have securities rated in one of the three highest
rating categories by a nationally recognized statistical rating organization.
26
(b) There shall at all times be one or more Administrators hereunder each
of which shall be a resident of the United States for Australian tax purposes.
Each Administrator shall be appointed and be subject to immediate removal by the
Depositor and shall be either a natural person who is at least 21 years of age
and a resident of the United States or a legal entity incorporated in, or
organized under the laws of, the United States or any State thereof that shall
act through one or more persons authorized to bind that entity. An employee,
officer or Affiliate of the Depositor may serve as an Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of the Delaware Business Trust Act and any other applicable
Delaware law.
(d) There shall at all times be three NAB Trustees, each of which shall be
appointed by the Depositor and be subject to immediate removal by the Depositor.
Section 7.06. CO-DISTRIBUTION TRUSTEES AND SEPARATE TRUSTEE.
Unless an Exchange Event shall have occurred and be continuing, at any time
or times, for the purpose of meeting the legal requirements of any jurisdiction
in which any part of the Trust Property may at the time be located, the Property
Trustee shall have power to appoint, and upon the written request of the
Property Trustee, the other Distribution Trustees and the Administrators shall
for such purpose join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee and the Depositor either to
act as co-trustee, jointly with the Property Trustee, of all or any part of such
Trust Property, or to the extent required by law to act as separate trustee of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. Any co-trustee or separate
trustee appointed pursuant to this Section shall either be (i) a natural person
who is at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
Should any written instrument from the other Distribution Trustees or the
Administrators be required by any co-trustee or separate trustee so appointed
for more fully confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the other Distribution Trustees and the
Administrators.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
27
(a) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(b) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of any NAB Trustee, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section. Upon the written request of the Property Trustee, the other
Distribution Trustees and the Administrators shall join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(c) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee, the other Distribution
Trustees or the Administrators hereunder.
(d) No Distribution Trustee or Administrator shall be liable by reason of
any act of a co-trustee or separate trustee or any employees or agents of a
co-trustee and separate trustee nor shall any of them be liable for the
supervision of a co-trustee or separate trustee or employees or agents of a
co-trustee and separate trustee.
(e) Any act of any NAB Trustee delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 7.07. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of any Distribution Trustee (the "Relevant
Trustee") and no appointment of a successor Distribution Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Distribution Trustee in accordance with the applicable requirements of
Section 7.09.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Distribution Trustees
and the Administrators. A NAB Trustee shall appoint a successor meeting the
eligibility requirements set forth herein to serve as the Relevant Trustee. If
the instrument of acceptance by the successor Distribution Trustee required by
Section 7.09 shall not have been delivered to the Relevant Trustee within 60
days after the giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Depositor pursuant to the Common Securities
Subscription Agreement, any court of competent jurisdiction for the appointment
of a successor Relevant Trustee.
28
Any NAB Trustee may remove a Distribution Trustee. If a Distribution
Trustee is removed any NAB Trustee may appoint a successor Distribution Trustee,
and such successor Distribution Trustee shall comply with the applicable
requirements of Section 7.08. If an Administrator is removed, resigns or
otherwise vacates office, a NAB Trustee shall promptly appoint a successor. Any
NAB Trustee (and only a NAB Trustee) shall have the right to remove an
Administrator.
If no successor Relevant Trustee shall have been so appointed by a NAB
Trustee and accepted appointment in the manner required by Section 7.09 any
removed Distribution Trustee, may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
The NAB Trustees shall give notice of each resignation and each removal of
a Distribution Trustee and each appointment of a successor Distribution Trustee
to each other Distribution Trustee and the Administrators in the manner provided
in Section 9.07. Each notice shall include the name of the Distribution Trustee
resigning or so removed or appointed and the address of its Corporate Trust
Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Distribution
Trust Agreement, in the event any Delaware Trustee who is a natural person dies
or becomes, in the opinion of any NAB Trustee, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by any
NAB Trustee following the procedures set forth above (with the successor in each
case being a Person who satisfies the eligibility requirements for
Administrators or Delaware Trustee).
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Section 7.08. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each such successor Relevant Trustee shall
execute, acknowledge and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Note and the
Distribution Trust, and (b) shall add to or change any of the provisions of this
Distribution Trust Agreement as shall be necessary to provide for or facilitate
the administration of the Distribution Trust by more than one Relevant Trustee
and upon the execution and delivery of such amendment the resignation or removal
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of any NAB Trustee or
any successor Relevant Trustee such retiring Relevant Trustee shall, upon
payment of its charges, duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Note and the
Distribution Trust.
Upon request of any such successor Relevant Trustee, the other Distribution
Trustees and the Administrators shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Relevant Trustee
all such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 7.09. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Property
Trustee or Delaware Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Property Trustee or
Delaware Trustee, shall be the successor of such Property Trustee or Delaware
Trustee hereunder, provided that such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 7.10. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Distribution Trust or the property of the
Distribution Trust, any Distribution Trustee or
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Administrator shall be entitled and empowered, to the fullest extent permitted
by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any interest
payments owing and unpaid in respect of the Note and to file such other papers
or documents as may be necessary or advisable in order to have the claims of
such Distribution Trustee or Administrator (including any claim for the
compensation, expenses, disbursements and advances of such Distribution Trustee
or Administrator, its agents and counsel payable hereunder) allowed in such
judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by the Depositor to make
such payments to such Distribution Trustee or Administrator and, in the event
such Distribution Trustee or Administrator shall consent to the making of such
payments directly to the U.K. Company, to pay to such Distribution Trustee or
Administrator any amount due it for the compensation, expenses, disbursements
and advances of such Distribution Trustee or Administrator, its agents and
counsel payable hereunder, and any other amounts due such Distribution Trustee
or Administrator under this Distribution Trust Agreement.
Section 7.11. REPORTS BY PROPERTY TRUSTEE.
(a) Not later than January 31 of each year commencing with January 31,
1999, the Property Trustee shall transmit to the NAB Trustees, a brief report
dated as of the immediately preceding November 30 with respect to:
(i) its eligibility under Section 7.06 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported.
(b) A copy of each such report shall be filed by the Property Trustee with
the NAB Trustees.
Section 7.12. NUMBER OF DISTRIBUTION TRUSTEES.
(a) The number of Distribution Trustees shall be five, of which three will
be NAB Trustees. The Property Trustee and the Delaware Trustee may be the same
Person, in which case it shall be deemed to be acting as two Distribution
Trustees.
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(b) If a Distribution Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with a Distribution Trustee
appointed by any NAB Trustee.
(c) The death, resignation, retirement, removal, bankruptcy, dissolution,
termination, incompetence or incapacity to perform the duties of a Distribution
Trustee shall not operate to dissolve, terminate or annul the Distribution Trust
or terminate this Distribution Trust Agreement.
Section 7.13. DELEGATION OF POWER.
(a) Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.05(a) or
making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time to
such of their number the doing of such things and the execution of such
instruments either in the name of the Distribution Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Distribution Trust Agreement.
Section 7.14. APPOINTMENT OF ADMINISTRATORS.
(a) The Administrators shall be appointed by any NAB Trustee and may be
removed by any NAB Trustee or may resign at any time. Upon any resignation or
removal, a NAB Trustee shall appoint a successor Administrator. Each
Administrator shall execute this Distribution Trust Agreement thereby agreeing
to comply with, and be legally bound by, all of the terms, conditions and
provisions of this Distribution Trust Agreement. If at any time there is no
Administrator, the Property Trustee may petition any court of competent
jurisdiction for the appointment of one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur, until
such vacancy is filled by the appointment of an Administrator in accordance with
this Section 7.14, the Administrators in office, regardless of their number (and
notwithstanding any other provision of this Distribution Trust Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Distribution Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this
Distribution Trust Agreement, in the event any Administrator or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of any NAB
Trustee, incompetent, or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the remaining Administrators, if
there were at least two of them prior to such vacancy, and by any NAB Trustee,
if there were not two such Administrators immediately prior to such vacancy
(with the successor in each case
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being a Person who satisfies the eligibility requirement for Administrators or
Delaware Trustee, as the case may be, set forth in Section 7.06).
ARTICLE VIII
DISSOLUTION
Section 8.01. DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved, the Distribution Trust shall dissolve and its
affairs wound up at any time on a date selected by any NAB Trustee (the
"Expiration Date"), and thereafter the Trust Property shall be distributed in
accordance with Section 8.03.
Section 8.02. EARLY TERMINATION.
The first to occur of any of the following events is an "Early Termination
Event" and the occurrence of which shall cause the dissolution of the
Distribution Trust:
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect to
the Depositor or all or substantially all of its property, or a court or other
governmental agency shall enter a decree or order and such decree or order shall
remain unstayed and undischarged for a period of 60 days;
(b) the entry of an order for dissolution of the Distribution Trust by a
court of competent jurisdiction.
Section 8.03. TERMINATION.
(a) This Distribution Trust Agreement and the Distribution Trust created
hereby shall terminate as provided in Section 8.01 and 8.02, and the Trust
Property, shall be distributed to the Depositor and this Distribution Trust
shall be of no further force or effect.
(b) In the event that the Distribution Trust terminates, the Trustees
shall make any distributions required to made pursuant to Section 8.03(a) and
then the Administrators (each of whom is hereby authorized to take such action)
shall file a certificate of cancellation with the Secretary of State of the
State of Delaware terminating the Trust and, upon such filing, the respective
obligations and responsibilities of the Distribution Trustees, the
Administrators and the Distribution Trust shall terminate.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. AMENDMENT.
(a) This Distribution Trust Agreement may be amended from time to time by
any NAB Trustee with the consent of the Depositor (i) to cure any ambiguity,
correct or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Distribution Trust Agreement, provided, however,
that such amendment shall not adversely affect in any material respect the
interests of the Property Trustee, Delaware Trustee or, prior to the Exchange
Date, the U.K. Company without its written consent or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Distribution Trust will not be taxable as a
corporation for United States Federal income tax purposes at any time that the
Note is outstanding or to ensure that the Distribution Trust will not be
required to register as an investment company under the Investment Company Act.
(b) Notwithstanding any other provisions of this Distribution Trust
Agreement, the NAB Trustees shall not enter into or consent to any amendment to
this Distribution Trust Agreement which would cause the Distribution Trust to
fail or cease to qualify for the exemption from status as an "investment
company" under the Investment Company Act or be taxable as a corporation for
United States Federal income tax purposes.
(c) Notwithstanding anything in this Distribution Trust Agreement to the
contrary, without the consent of the Administrators and the U.K. Company, this
Distribution Trust Agreement may not be amended in a manner which imposes any
additional obligation on the Administrators and the U.K. Company.
(d) In the event that any amendment to this Distribution Trust Agreement
is made, the NAB Trustees shall promptly provide to the Property Trustee, the
Delaware Trustee and the Administrators a copy of such amendment.
(e) Any amendments to this Distribution Trust Agreement, pursuant to
Section 9.01(a), shall become effective when notice of such amendment is given
to the Property Trustee, the Delaware Trustee, the U.K. Company and the
Administrators.
Section 9.02. SEPARABILITY.
In case any provision in this Distribution Trust Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 9.03. GOVERNING LAW.
THIS DISTRIBUTION TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
U.K. COMPANY, THE DISTRIBUTION TRUST, THE DEPOSITOR, THE DISTRIBUTION TRUSTEES
AND THE ADMINISTRATORS SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED
BY SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE
OF DELAWARE OR ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE
LAW OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER,
THAT THERE SHALL NOT BE APPLICABLE TO THE DISTRIBUTION TRUST, THE DEPOSITOR, THE
DISTRIBUTION TRUSTEES, THE ADMINISTRATORS, THE U.K. COMPANY OR THIS
DISTRIBUTION TRUST AGREEMENT ANY PROVISION OF THE LAWS (STATUTORY OR COMMON) OF
THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE DISTRIBUTION
TRUSTEES OR THE ADMINISTRATORS AS SET FORTH OR REFERENCED IN THIS DISTRIBUTION
TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY
TO THE DISTRIBUTION TRUST.
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Section 9.04. INCOME ENTITLEMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment of any Income Entitlement shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day with the same
force and effect as if made on the date on which such payment was originally
payable and no interest or other payments shall accrue on such unpaid amount for
the period after such date.
Section 9.05. SUCCESSORS.
This Distribution Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to or assignee of the Depositor, the Distribution
Trust, the Administrators, the U.K. Company and any Distribution Trustee,
including any successor by operation of law. The Depositor, shall be a third
party beneficiary in respect of the rights granted to it hereunder.
Section 9.06. HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Distribution Trust Agreement.
Section 9.07. REPORTS, NOTICES AND DEMANDS.
Any notice, demand or other communication which by any provision of this
Distribution Trust Agreement is required or permitted to be given or served to
or upon the Property Trustee, the Delaware Trustee, the NAB Trustee, the
Administrators, the Distribution Trust or the U.K. Company shall be given in
writing addressed (until another address is published by the Distribution Trust)
as follows: (a) with respect to the Property Trustee to Wilmington Trust
Company, _____________________, New York, NY _____, Attention:
_____________________; (b) with respect to the Delaware Trustee to Wilmington
Trust Company, ___________________, Attention: ______________________; (c) with
respect to the NAB Trustees, to them at ______________________; (d) with respect
to the Administrators, to them at the address above for notices to the
Depositor, marked "Attention: _______________________"; (e) with respect to the
Distribution Trust, to NAB Distribution Trust c/o _______________, Attention:
_______________; and (f) with respect to the U.K. Company, to Xxx Xxxx Xxxxxx,
Xxxxxx XX0X 0XX, Telecopier: 00-000-000-0000, Attention: Company Secretary.
Such notice, demand or other communication to or upon the Property Trustee, the
Delaware Trustee, the Administrators, the Distribution Trust or the U.K. Company
shall be deemed to have been sufficiently given or made only upon actual receipt
of the writing by the relevant party.
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Section 9.08. COUNTERPARTS.
This instrument may be executed in any number or counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Distribution Trust
Agreement to be duly executed as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
-----------------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as Delaware Trustee
By:
-----------------------------------------------
Name:
Title:
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,
-------------------------------------
as NAB Trustee and not in its individual capacity
By:
-----------------------------------------------
Name:
Title:
,
-------------------------------------
as NAB Trustee and not in its individual capacity
By:
-----------------------------------------------
Name:
Title:
,
-------------------------------------
as NAB Trustee and not in its individual capacity
By:
-----------------------------------------------
Name:
Title:
CUZZANO (UK) COMPANY,
as Income Beneficiary
By:
-----------------------------------------------
Name:
Title:
Agreed to and Accepted by,
------------------------------------------
Name:
Title: Administrator
------------------------------------------
Name:
Title: Administrator
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Exhibit A
CERTIFICATE OF TRUST
A-1
Exhibit B
FORM OF COMMON SECURITIES
B-1
