Exhibit (k)(4)
WBK STRYPES TRUST
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
NATIONAL AUSTRALIA BANK LIMITED
NATIONAL AUSTRALIA TRUSTEES LIMITED
ESCROW AGREEMENT
XXXXXX XXXXXXX
Lawyers
Xxxxxx Xxxxxxx Building
00 Xxxxxx Xxxxx
XXXXXX XXX 0000
DX 000 Xxxxxx
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
GMC 10642104
Exhibit (k)(4)
ESCROW AGREEMENT
AGREEMENT dated 1997
BETWEEN WBK STRYPES TRUST, a business trust organised pursuant to the
Business Trust Act of the state of Delaware in the United States of
America ('STRYPES Trust')
AND NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 ('Escrow
Agent')
AND AUSTRALIAN MUTUAL PROVIDENT SOCIETY ARBN 008 387 371
('AMP')
AND NATIONAL AUSTRALIA TRUSTEES LIMITED ACN 007 350 405 in its
capacity as trustee of the Platypus Trust ('Australian Trustee')
AND [FPC ADMINISTRATOR]
RECITALS
A. The STRYPES Trust, AMP, the Australian Trustee [and [ ]] are or are to be
parties to the Forward Purchase Contract.
B. Clause 2.2 of the Forward Purchase Contract contemplates that the Escrow
Amount is to be held in the Escrow Account pending the occurrence of
certain events specified in clauses 2.2(d) and (e) of the Forward Purchase
Contract.
C. The STRYPES Trust and AMP have requested the Escrow Agent to act as the
escrow agent for the purposes of the Forward Purchase Contract and the
Escrow Agent has agreed to do so on the terms and conditions set out in
this document.
AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
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Exhibit (k)(4)
'Authorised Representative' means in respect of [STRYPES
Trust/Administrator] the following persons: [Details to be provided as to
officers who are to sign the Delivery Notice.]
'Escrow Account' means an interest bearing [call] account in the name of
the Escrow Agent held with [insert name of bank] account no. [insert
account no.] at [branch details and location].
'Delivery Notice' means a notice in the form of Schedule A signed by an
[Authorised Representative] on behalf of the [STRYPES
Trust/Administrator?] addressed to the Escrow Agent.
'Escrow Amount' means US$1,000,000.
'Forward Purchase Contract' means the document so entitled between the
Australian Trustee, AMP and the STRYPES Trustee dated on or about the date
of this document.
'Platypus Trust' means the trust constituted by a document entitled
'Nominee Trust Agreement' between AMP as beneficiary and the Australian
Trustee as trustee dated on or about the date of this document.
1.2 Other expressions
In this document, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) other grammatical forms of defined words or expressions have
corresponding meanings;
(c) a reference to a party to this document includes that party's
successors and permitted assigns;
(d) a reference to a document or agreement includes that document or
agreement as novated, altered or replaced; and
(e) words implying natural persons include partnerships, bodies
corporate, associations and public authorities.
2. ESCROW AGENT AND IRREVOCABLE DIRECTION
2.1 The STRYPES Trust irrevocably directs the Escrow Agent as follows:
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Exhibit (k)(4)
(a) if the Escrow Agent receives the Escrow Amount from the STRYPES
Trust, the Escrow Agent must hold the Escrow Amount in the Escrow
Account and deal with the Escrow Amount only on the terms and
conditions of this document; and
(b) if the Escrow Agent receives a Delivery Notice signed by an
Authorised Representative of the [STRYPES Trust/Administrator] [or
by AMP on its behalf?], the Escrow Agent must release the Escrow
Amount and all interest earned on the Escrow Amount to the
Australian Trustee or at its direction; and
(c) upon the occurrence of a Dissolution Event the Escrow Agent:
(i) will hold the Escrow Amount and all interest earned on the
Escrow Amount for the Australian Trustee absolutely; and
(ii) must upon receipt of a Delivery Notice signed by or on behalf
of the [STRYPES Trust/Administrator] release the Escrow Amount
and all interest earned on the Escrow Amount to and for the
benefit of the Australian Trustee or at its direction.
2.2 The Escrow Agent may only deal with the Escrow Amount in accordance with
the terms of this document.
3. TERMS OF ESCROW ACCOUNT
3.1 The Escrow Agent agrees that interest will accrue on the daily credit
balance of the Escrow Account at the rate of [to be discussed]
3.2 In consideration for the Escrow Agent entering into this document. AMP
agrees to pay a fee of [A$ ] per annum to the Escrow Agent. The fee is
payable when the Escrow Agent releases the Escrow Amount and interest in
the manner contemplated by clause 2.1(b) or 2.1(c) (as the case may be)
and may be deducted by the Escrow Agent from the Escrow Amount.
3.3 AMP indemnifies the Escrow Agent against any loss, cost, damage or
liability (including, but not limited to legal costs on a full indemnity
basis) suffered or incurred by the Escrow Agent in the performance of its
obligations under this document unless caused as a result of the gross
negligence, wilful misconduct or fraud on the part of the Escrow Agent.
4. TRUSTEE LIMITATION OF LIABILITY
[to be inserted]
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Exhibit (k)(4)
5. MISCELLANEOUS
5.1 The Escrow Agent is not liable to any other party in respect of:
(a) any falsity or forgery of or in any Delivery Notice which on its
face is given in accordance with this document;
(b) the impossibility or illegality of performance of any of the Escrow
Agent's obligations under this document.
5.2 The Escrow Agent has no duties or responsibilities to any of the parties
except as are expressly set out in this document.
5.3 Each party may rely, and act on, any notice signed, or purportedly signed,
by an Authorised Representative of any party.
5.4 The Escrow Agent may only retire:
(a) on the giving of at least 60 days' prior written notice to the
STRYPES Trust; and
(b) if, upon retirement, another entity signs an escrow agreement on
terms substantially the same as this document.
5.5 Each party gives the following representations in respect of itself to
each other party:
(a) it has the power to enter into this document and to carry out any
obligation contemplated by it; and
(b) all necessary action has been taken by it to make this document
valid and binding on it and to enable it to carry out its respective
transactions or obligations contemplated by this document.
5.6 No party may assign, dispose or deal with any interest it has under this
document.
5.7 This document is governed by the laws in force in the State of New South
Wales and the parties submit to the non-exclusive jurisdiction of the
courts of that State.
5.8 This document may be executed in a number of counterparts and the
counterparts taken together constitute one and the same instrument.
[nb consideration to be given as to mechanics of giving notices]
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Exhibit (k)(4)
SCHEDULE
DELIVERY NOTICE
To: [insert name of Escrow Agent] of [insert address]
From: [WBK STRYPES TRUST, a business trust organised pursuant to the Business
Trust Act of the state of Delaware in the United States of
America./(Administrator(?))]
Date: [insert]
Escrow Agreement dated [ ] 1997 between
WBK STRYPES Trust and [insert name of Escrow Agent] ('Escrow Agreement')
Escrow Account no. [insert]
This is a Delivery Notice for the purposes of clause 2.1 of the Escrow
Agreement.
Accordingly, you are irrevocably directed to immediately pay the Escrow Amount
and all interest earned on the Escrow Amount to the Australian Trustee or at its
direction.
Terms used in this notice have the same meaning, unless otherwise defined, as in
the Escrow Agreement.
Signed for and on behalf of
[ ]
by an Authorised Representative
------------------------
Name:
Title:
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Exhibit (k)(4)
EXECUTED as an agreement.
SIGNED for and on behalf of WBK )
STRYPES TRUST )
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Signature of witness
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Name of witness (print)
SIGNED for and on behalf of )
AUSTRALIAN MUTUAL PROVIDENT )
SOCIETY )
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Signature of witness
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Name of witness (print)
SIGNED for and on behalf of )
NATIONAL AUSTRALIA BANK LIMITED )
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Signature of witness
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Name of witness (print)
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Exhibit (k)(4)
SIGNED for and on behalf of NATIONAL )
AUSTRALIA TRUSTEES LIMITED )
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Signature of witness
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Name of witness (print)
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