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Deed of Covenant

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Title:

Deed of Covenant

Entities:

Bank One, NA; Coles Myer Ltd.; International Swaps & Derivatives Association, Inc.

Date:

2004

Size:

Preview shows 42KB of 166KB total

Price:

$55

ID:

#1140814

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		Deed of Covenant

Date:		4 May 2001

Parties:		COLES MYER FINANCE LIMITED (ABN 33 008 544 161) a company incorporated in the Australian Capital Territory, Australia of 800 Toorak Road Tooronga, Victoria, 3146, Australia (Issuer)

In favour of:		The Registered Holders and the Relevant Account Holders (each as defined below) from time to time.

Recitals:

	A.	The Issuer has established the Programme for the issue of Notes pursuant to the Programme Documents.

	B.	Under the Programme, the Issuer may from time to time have up to A$3,000,000,000 (or its equivalent in other currencies) principal amount of Notes outstanding at any one time (or such other amount notified by the Issuer from time to time in accordance with the Dealer Agreement).

	C.	Pursuant to this deed poll, the Issuer wishes to:

		(a)	make arrangements for the protection of the interests of Registered Holders and Relevant Account Holders in the circumstances set out below;

		(b)	constitute the Australian Domestic Notes; and

		(c)	set out the terms of the standard Coles Myer Negative Pledge.

Operative provisions:

1 Definitions

Definitions

	1.1	The following words have these meanings in this deed poll unless the contrary intention appears:

		Account Holder means a holder of a Securities Account, except for an Account Issuer to the extent that any securities, or rights in respect of securities, credited to such Account Issuers Securities Account are held by such Account Issuer for the account or benefit of a holder of a Securities Account with that Account Issuer.

		Account Issuer means a Clearing System or a Custodian.

		Acquisition Time means, in relation to any Original Account Holders Entry, its Effective Time (as defined in the definition of Original Account Holder below) and, in relation to any Subsequent Account Holders Entry, its Transfer Time.

		Agency Agreement has the meaning given to that term in the Principal Agency Agreement.


				Australian Domestic Notes means the Notes in inscribed form, constituted by this deed poll and issued by the Issuer in the Australian domestic capital markets.

				Australian Dollars means the lawful currency of the Commonwealth of Australia.

				Australian Registrar means Austraclear Services Limited (ABN 28 003 284 419) or such other person appointed by the Issuer pursuant to the Registry Services Agreement to maintain the Register in relation to the Australian Domestic Notes and perform such payment and other duties as specified in that agreement.

				Authorised Person has the meaning given to that term in the Principal Agency Agreement.

				Bearer Note has the meaning given to that term in the Principal Agency Agreement.

				Certificate has the meaning given to that term in the Principal Agency Agreement.

				Clearing System means Euroclear, Clearstream, Luxembourg and any other clearing system designated as such in a relevant Pricing Supplement.

				Clearstream, Luxembourg means Clearstream Banking, socit anonyme.

				Common Depositary means, in relation to a Series of Notes, the common depositary for one or more of the Clearing Systems specified in the relevant Pricing Supplement.

				Compliance Certificate means a certificate given in accordance with clause 6.2 (Compliance Certificate) and in or substantially in the form of annexure 2.

				Conditions means in relation to the Notes of any Series:

				(a)		in relation to Notes (other than Registered Notes), the terms and conditions set out in Part VII of schedule 1 to the Principal Agency Agreement and endorsed on or incorporated by reference in the those Notes;

				(b)		in relation to Registered Notes (other than Australian Domestic Notes), the terms and conditions set out in Part VII of schedule 1 to the Principal Agency Agreement endorsed on or incorporated by reference in the Certificates representing those Registered Notes; and

				(c)		in relation to Australian Domestic Notes, the terms and conditions set out in schedule 1 and applying to those Notes pursuant to this deed poll,


				each as amended, completed, supplemented or replaced by the relevant Pricing Supplement and, with respect to any Notes represented by a Global Certificate or a Global Note, the provisions of such Global Certificate or Global Note or the relevant Deed of Covenant (if any) applicable to the Notes of the relevant Series, or such other terms and conditions as may be agreed in accordance with the relevant Agency Agreement.

				An Entry corresponds with another Entry if:

				(a)		both Entries relate to the same Global Note or Global Certificate;

				(b)		one of those Entries has been debited from the Securities Account of an Account Holder in connection with, and substantially at the same time as, the credit of the other Entry to the Securities Account of another Account Holder; and

				(c)		the purpose of debiting the first Entry and crediting the second Entry was to transfer all rights relating to the debited Entry from the Account Holder to whose Securities Account it was debited to the other Account Holder to whose Securities Account the other Entry has been credited,

				and one Entry corresponds with another Entry if they both correspond with a third Entry.

				Coupon has the meaning given to that term in the Principal Agency Agreement.

				Couponholders has the meaning given to that term in the Principal Agency Agreement.

				Custodian means a person who acknowledges to a Clearing System (or to a Custodian and therefore indirectly to a Clearing System) that it holds securities, or rights in respect of securities, for the account or benefit of that Clearing System (or Custodian).

				Dealer Agreement means the dealer agreement dated 4 May 2001 between the Issuer, the Dealers named therein and Merrill Lynch International and Merrill Lynch International (Australia) Limited as arrangers and Merrill Lynch Australia (International) Limited as programme manager, as the same may be amended, supplemented or replaced from time to time.

				Deed of Guarantee means the deed poll guarantee and indemnity given by the Guarantor in connection with Notes issued under the Programme dated 4 May 2001 as amended or supplemented from time to time in accordance with its terms.

				Default Notice means a notice given to the Fiscal Agent by the holder of a Global Note or of the Notes represented by a Global Certificate and in respect of which Notes there has been a failure to pay principal when due in accordance with the Conditions that elects for Direct Rights to arise in relation to the whole or a stated part of such Global Note or one


.	or more Notes represented by such Global Certificate and which identifies the Account Holder and Entries to which such notice relates.

	Definitive Note has the meaning given to that term in the Principal Agency Agreement.

	Direct Rights means the rights referred to and defined in clause 3.1 (Acquisition of Direct Rights).

	Entry means an entry relating to an Original Note (and, if applicable, its related Global Note or Global Certificate) in a Securities Account of an Account Holder.

	Euroclear means Euroclear Bank S.A./N.V., as operator of the Euroclear System.

	Extraordinary Resolution in respect of the holders of a Series of Notes, has the meaning:

	(a)	in the case of Notes (other than Australian Domestic Notes), given in paragraph 1.1 of schedule 2 to the Principal Agency Agreement; and

	(b)	in the case of Australian Domestic Notes, given in paragraph 1 of annexure 1 to schedule 1.

	Fiscal Agent has the meaning given to that term in the Principal Agency Agreement.

	Global Certificate has the meaning given to that term in the Principal Agency Agreement.

	Global Note has the meaning given to that term in the Principal Agency Agreement.

	Guarantor means Coles Myer Ltd. (ABN 11 004 089 936).

	Negative Pledge means the negative pledge given by the Issuer under this deed poll in favour of Noteholders from time to time as set out in annexure 1, in relation to which the Guarantor has, under the Deed of Guarantee, undertaken to comply with its terms as if it had executed the negative pledge as a separate deed poll in favour of Noteholders from time to time.

	Note in relation to a Series, means any negotiable bearer or registered bond, note, bill of exchange, promissory note or other debt instrument (including, without limitation, commercial paper) issued, or to be issued pursuant to this agreement which:

	(a)	contains the terms and conditions specified in the relevant Pricing Supplement; and

	(b)	is issued by the Issuer; and

	(c)	is represented by either:

		(i)	a Temporary Global Note; or


	(ii)	a Permanent Global Note; or

	(iii)	one or more Definitive Note;

	(iv)	one or more Registered Notes (other than Australian Domestic Notes) or one or more Certificates or Global Certificates representing such Registered Notes; or

	(v)	one or more Australian Domestic Notes,

and includes any replacement Note issued pursuant to the Conditions (if applicable) and, unless the context otherwise requires, includes the Coupons, Talons and/or Receipt(s) (if any) relating to the Notes.

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