Exhibit (k)(7)
NATIONAL AUSTRALIA TRUSTEES LIMITED
(ACN 007 350 405)
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
(ARBN 008 387 371)
NOMINEE TRUST AGREEMENT
Exhibit (k)(7)
TABLE OF CONTENTS
1. Interpretation....................................................... 1
2. Creation of Trust.................................................... 2
3. Transfer to Beneficiary.............................................. 3
4. Beneficiary Absolutely Entitled to Trust Fund........................ 3
5. Beneficiary Absolutely Entitled to Income............................ 3
6. Trustee's Powers..................................................... 3
7. Beneficiary's Directions............................................. 5
8. Trustee Indemnity.................................................... 6
9. Trustees's Liabilities............................................... 7
10. Governing Law........................................................ 8
11. Notices.............................................................. 8
12. Trustee Remuneration................................................. 8
Exhibit (k)(7)
NOMINEE TRUST AGREEMENT
THIS AGREEMENT OF SETTLEMENT is made the 26th day of September 1997
BETWEEN AUSTRALIAN MUTUAL PROVIDENT SOCIETY ARBN 008 387 371
("Beneficiary")
AND NATIONAL AUSTRALIA TRUSTEES LIMITED ACN 007 350 405
having its principal office in New South Wales at Xxxxx 00, 00
Xxxxxx Xxxxxx, Xxxxxx, XXX 0000 ("Trustee")
RECITALS
A. The Beneficiary has paid the Settlement Sum to the Trustee prior to the
execution of this Agreement to settle and constitute the Trust.
B. The Trustee has consented to be the trustee of the trust created by this
Agreement upon the trusts and within and subject to the powers and
provisions set out in this Agreement.
C. The parties agree that they are entering into this Agreement for valuable
consideration.
OPERATIVE
1. Interpretation
1.1 In this Agreement including the Recitals the following expressions have
the following meanings:
(a) "Beneficiary" means Australian Mutual Provident Society;
(b) "Settlement Sum" means the amount of $1,000;
(c) "Shares" means shares, stocks, options or rights in respect of
shares or stock in a company;
(d) "this Agreement" means this Agreement of Settlement as amended from
time to time;
Exhibit (k)(7)
(e) "Trust" means the trust created by this Agreement originally
constituted or as amended from time to time;
(f) "Trust Fund" means:
(i) the Settlement Sum;
(ii) all monies investments and property paid or transferred to,
vested in, or accepted by the Trustee as additions to the
Trust Fund held by it pursuant to this Agreement or upon the
trusts declared in this Agreement;
(iii) all other additions or accretions to the Trust Fund howsoever
arising;
(iv) any accumulations of income for the time being in the hands of
the Trustee;
(v) the investments property and assets from time to time
representing the money investments property and accumulations
referred to in paragraphs (i) to (iv) of this definition;
(g) "Trustee" means the person named as the Trustee in this Agreement or
any other person or persons acting for the time being as trustee or
trustees of the Trust.
1.2 A reference to any party includes a reference to its successors.
1.3 A reference to a person includes a body corporate corporation, an
unincorporated body or other entity.
1.4 A reference to the singular includes the plural and vice versa.
2. Creation of Trust
2.1 The name of the Trust is The Platypus Trust.
2.2 The Trustee acknowledges receipt of the Settlement Sum. The Beneficiary
directs the Trustee to and the Trustee agrees that it will from the
execution of this Agreement hold the Trust Fund and the income produced by
the Trust Fund for the Beneficiary
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Exhibit (k)(7)
absolutely to deal with in accordance with the directions of the
Beneficiary and with and subject to the powers and provisions set out in
this Agreement.
3. Transfer to Beneficiary
The Trustee must at the direction of the Beneficiary transfer the Trust
Fund or any asset comprising the Trust Fund to the Beneficiary or as the
Beneficiary directs or otherwise deal with the Trust Fund and each asset
comprising the Trust Fund as the Beneficiary directs from time to time.
4. Beneficiary Absolutely Entitled to Trust Fund
The Trustee acknowledges that the Beneficiary is absolutely entitled as
against the Trustee to the Trust Fund and to each asset of the Trust Fund.
Nothing in this Agreement or any operation of law entitles the Trustee to
beneficial ownership of the Trust Fund or any asset of the Trust Fund or
to deprive the Beneficiary of the rights of absolute beneficial ownership
(including the right of possession) of the Trust Fund and each asset of
the Trust Fund.
5. Beneficiary Absolutely Entitled to Income
The Trustee will at all times hold the income produced by the Trust Fund
for the Beneficiary absolutely and at the direction of the Beneficiary
will pay to or apply the income for the benefit of the Beneficiary or
accumulate the income for re-investment as part of the Trust Fund as the
Beneficiary may direct.
6. Trustee's Powers
6.1 The Trust must acquire legal title to such assets as the Beneficiary from
time to time directs upon the Beneficiary providing funds immediately
available for completion of any such acquisition and upon the Beneficiary
doing all things needed on its part to complete the acquisition.
6.2 (a) The Trustee at the direction of the Beneficiary, and subject to
the Beneficiary providing sufficient funds immediately available for
completion of any transaction, and doing all things needed on its
part to complete the transaction, will deal in sell transpose
exchange or vary any or all of the investments and assets comprised
from time to time in the Trust Fund and reinvest the monies arising
from such dealing as directed by the Beneficiary.
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Exhibit (k)(7)
(b) The Trustee may perform any action or duty and exercise any power
under any agreement made pursuant to the direction of the
Beneficiary.
(c) If a direction is given to the Trustee by the Beneficiary, the
Trustee agrees to be bound to comply with that direction as if that
direction were embodied in this Agreement, and the Trustee shall not
act on or effect any subsequent direction of the Beneficiary which
is inconsistent with an agreement made by the Trustee in relation to
the Trust Fund at the direction of the Beneficiary, notwithstanding
anything to the contrary in this Agreement.
6.3 Without limiting the generality of the foregoing, the Trustee at the
direction of the Beneficiary may acquire Shares in any company whether in
Australia or elsewhere, and whether the Shares are fully or partly paid up
or involve liabilities or not. Any Shares may be acquired by original
subscription or by purchase or otherwise.
6.4 Where the Trust Fund at any time is comprised of any Shares the Trustee
must exercise all rights in respect of the Shares in accordance with the
directions of the Beneficiary. Without limiting the generality of the
foregoing the Trustee at the direction of the Beneficiary and upon such
terms as the Beneficiary directs will:
(a) attend meeting of shareholders;
(b) vote the Shares;
(c) appoint proxies;
(d) receive any distributions in respect of the Shares;
(e) execute any documents and deeds or do any acts or things as may be
necessary or desirable to exercise the rights attaching to the
Shares or for the better enjoyment of those rights;
(f) subscribe for Shares;
(g) pay any calls on Shares;
(h) cause the Shares to be registered in the name of the Trustee or a
nominee or custodian trustee;
(i) sell transfer or otherwise dispose of the Shares; and
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Exhibit (k)(7)
generally to do such other acts and things in relation to the Shares as
the Beneficiary may at any time direct.
6.5 Notwithstanding anything to the contrary in this Agreement, the Trustee is
not obliged to enter into any transaction or perform any act unless it is
satisfied that in the absence of its own fraud, gross negligence, wilful
misconduct or its failure to use reasonable care with respect to the
custody, safekeeping and physical preservation of the Trust Fund in its
possession, its personal liability is excluded or limited as required by
the Trustee.
7. Beneficiary's Directions
7.1 Unless required by law, or by court of competent jurisdiction, the Trustee
may not act in relation to or deal with the Trust Fund or any asset
comprising the Trust Fund except upon the express direction of the
Beneficiary.
7.2 The Trustee must not:
(a) vary or purport to vary the terms of this Agreement;
(b) retire or seek to retire as trustee or appoint or seek to appoint a
new or additional trustee.
except upon the express direction of the Beneficiary.
7.3 Reliance:
(a) The Trustee may rely on the directions of the Beneficiary in
relation to any act matter or thing the Beneficiary directs the
Trustee to do make or undertake under this Agreement, and need not:
(i) consider; or
(ii) make any inquiry as to
the legality or appropriateness or due execution of any act, matter
document or thing which it is directed to do, make, execute or
undertake by the Beneficiary.
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Exhibit (k)(7)
(b) The Beneficiary acknowledges that the Trustee has made no inquiries
before entering this Agreement and is not aware of any rights or
interests of any person other than the Beneficiary or any duties or
responsibilities the Trustee may have to any such person in entering
into and performing any action under this Agreement.
7.4 Directions:
(a) Any direction which is required to be given or which may be given by
the Beneficiary under this Agreement must be in writing, signed by
or on behalf of the Beneficiary.
(b) The Trustee may rely upon, and is not bound to inquire as to the due
execution or accuracy of, any written direction by the Beneficiary
to the Trustee, believed by the Trustee to be genuine, and
apparently signed by the Beneficiary under its common seal, or on
behalf of the Beneficiary by one of its duly authorised attorneys
under power of attorney, or by any employee of the Beneficiary whose
title includes the word "manager" or by the person for the time
being and from time to time holding the position of "general
counsel" or "chief legal counsel" of the Beneficiary.
8. Trustee Indemnity
8.1 The Beneficiary must indemnify and keep indemnified the Trustee at all
times from and against any loss damage or liability (including the
Trustee's internal administration costs and the cost of time and
attendance of its employees) which the Trustee may suffer or incur in
connection with the performance of its duties as Trustee of the Trust
(including any act performed at the direction of the Beneficiary) unless
the same has been committed, made or omitted by the Trustee through fraud,
willful misconduct, gross negligence or a failure to use reasonable care
with respect to the custody, safekeeping and physical preservation of the
Trust Fund in its possession.
8.2 (a) Subject to clause 8.2(b) of this Agreement, the Trustee is indemnified
out of the Trust Fund and out of the income of the Trust Fund against any
loss, damage or liability suffered or incurred by the Trustee in the
exercise or attempted exercise after the date of execution of this
Agreement of, or as a consequence of the failure to exercise after the
date of execution of this Agreement any of the trusts authorities, powers
and discretions conferred on it by this Agreement by virtue of being the
Trustee, except for any loss, damage or liability suffered or incurred by
the Trustee through its fraud, gross
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Exhibit (k)(7)
negligence, wilful misconduct or failure to use reasonable care with
respect to the custody, safekeeping and physical preservation of the Trust
Fund in its possession.
(b) Notwithstanding any provision of this Agreement or rule of law to
the contrary, the Trustee is not indemnified out of the Trust Fund
and hereby waives any indemnity out of the Trust Fund for:
(i) any remuneration payable to the Trustee under this Agreement
or otherwise;
(ii) any legal fees incurred or to be incurred by the Trustee in
performance of its obligation under this Agreement;
(iii) its internal administration costs and the cost of time and
attendance of its employees; or
(iv) any loss, damage or liability suffered or incurred by it in
respect of any act, matter or thing done or omitted to be done
by the Trustee at the direction of the Beneficiary prior to
the execution of this Agreement.
8.3 (a) A liability arising under or in connection with this Agreement may be
enforced against the Trustee only to the extent to which it can be
satisfied out of the property of the Trust out of which the Trustee is
actually indemnified for the liability. This limitation of liability
applies despite any provision of this Agreement (other than paragraph
8.3(c)) and extends to all liabilities and obligations of the Trustee in
any way connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement;
(b) The Beneficiary may not xxx the Trustee in any capacity other than
as trustee of the Trust and may not seek the appointment of a
liquidator, administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangement of or
affecting the Trustee (except in relation to the Trust Fund);
(c) The provisions of this clause 8.3 do not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied
because under this Agreement there is a reduction in the extent of
the Trustee's indemnification out of the Trust Fund as a result of
the Trustee's fraud, gross negligence, wilful
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Exhibit (k)(7)
misconduct or failure to use reasonable care with respect to the
custody, safekeeping and physical preservation of the Trust Fund in
its possession;
(d) Nothing in this clause 8.3 derogates from the indemnity given to the
Trustee in clause 8.1 or clause 8.2 or is to be read as limiting in
any way the provisions for the benefit of the Trustee in clause 9.
9. Trustees's Liabilities
The Trustee is not responsible for:
(a) any loss or damage occasioned to the Trust Fund or any asset
comprising the Trust Fund or to any person by the exercise of any
discretion or power under this Agreement (or under any other
agreement made pursuant to a direction of the Beneficiary) or by law
conferred on the Trustee or by any alleged failure to exercise any
such discretion or power; or
(b) any breach of duty whatsoever;
unless the same is proved to have been committed, made or omitted by the
Trustee through fraud, wilful misconduct, gross negligence or the
Trustee's failure to use reasonable care with respect to the custody,
safekeeping and physical preservation of the Trust Fund in its possession.
All persons claiming any interest in the income or capital of the Trust
Fund are deemed to take with notice of and subject to the protection
conferred by this clause on the Trustee.
10. Governing Law
This Agreement and all questions arising under this Agreement shall be
governed and determined by the law of the State of New South Wales.
11. Notices
Any direction or notice which is required to be given or may be given
under this Agreement must be in writing signed by or on behalf of the
party giving the notice or direction.
12. Trustee Remuneration
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Exhibit (k)(7)
In consideration for the performance of its obligations under this
Agreement the AMP will pay the Trustee such remuneration as agreed by way
of side letter dated the date of this Agreement.
EXECUTED as an agreement.
SIGNED SEALED and DELIVERED ON )
behalf of NATIONAL AUSTRALIA )
TRUSTEES LIMITED (ACN 007 350 405) )
by its duly appointed attorney under power )
of attorney dated 28 May 1997 in the )
presence of )
BUSINESS MANAGER (NORTHERN REGION)
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Signature of witness [ ]
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Name of witness (print)
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Exhibit (k)(7)
SIGNED SEALED and DELIVERED by )
)
and by as )
attorneys for AUSTRALIAN MUTUAL )
PROVIDENT SOCIETY under power of )
attorney dated registered )
book number in the presence )
of )
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Signature of witness [ ]
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Name of witness (print)
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