Exhibit (k)(6)
FUND INDEMNITY AGREEMENT
Agreement, dated as of _______ __, 1997, among Australian Mutual Provident
Society ("AMP"), Xxxxxxx Xxxxx & Co., Inc. ("Xxxxxxx Xxxxx") and WBK STRYPES
Trust (such trust and the trustees thereof acting in their capacity as such
being referred to herein as the "Trust").
WHEREAS, the Trust is a business trust organized pursuant to the Business
Trust Act of the State of Delaware (Chapter 38, Title 12, of the Delaware Code,
12 Del.C. (Sections 3801 et seq.)), under and by virtue of a Trust Agreement
dated as of March 14, 1996, as amended and restated as of _______ __, 1997 (the
"Trust Agreement"); and
WHEREAS, AMP and Xxxxxxx Xxxxx desire to make provision for the payment of
certain indemnification expenses of the Trust;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement and other valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not defined herein shall
have the meanings ascribed thereto in the Trust Agreement.
2. AGREEMENT TO PAY EXPENSES. Xxxxxxx Xxxxx agrees to pay to the Trust,
and hold the Trust harmless from, any expenses of the Trust arising under
Sections 2.2(g) and 6.6 of the Administration Agreement, Section 15 of the
Custodian Agreement, Section 5.4(b) of the Paying Agent Agreement and Section
7.6 of the Trust Agreement (collectively, "Indemnification Expenses").
Notwithstanding the foregoing, it is understood that (i) Xxxxxxx Xxxxx shall
not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) and (ii) Xxxxxxx Xxxxx shall not be liable for any settlement of
any proceeding effected without the written consent of Xxxxxxx Xxxxx and AMP,
but if settled with such consent or if there be a final judgment for the
Claimant (as defined herein), Xxxxxxx Xxxxx agrees to indemnify the Trustees and
the Trust from and against any loss or liability by reason of such settlement or
judgment. Payment hereunder by Xxxxxxx Xxxxx shall be made in New York Clearing
House (next-day) funds no later than five Business Days after the receipt by
Xxxxxxx Xxxxx, pursuant to paragraph 4 hereof, of written notice of any claim
for Indemnification Expenses.
Exhibit (k)(6)
3. AGREEMENT TO REIMBURSE FOR PAYMENTS MADE. AMP agrees to reimburse
Xxxxxxx Xxxxx from time to time for the amount of any Indemnification Expenses
paid by Xxxxxxx Xxxxx pursuant to paragraph 2 hereof. Xxxxxxx Xxxxx shall be
reimbursed for any such Indemnification Expenses in New York Clearing House
(next-day) funds no later than five Business Days after the receipt by AMP,
pursuant to paragraph 4 hereof, of written notice of any claim for
Indemnification Expenses.
4. NOTICE OF RECEIPT OF CLAIM. The Trust shall give notice to, or cause
notice to be given to, Xxxxxxx Xxxxx and AMP in writing of any claim for
Indemnification Expenses or any threatened claim for Indemnification Expenses
immediately upon the Trust acquiring knowledge thereof. Such written notice to
Xxxxxxx Xxxxx shall be accompanied by any demand, xxxx, invoice or other
communication received from any third party claimant (a "Claimant") in respect
of such Indemnification Expense.
5. STATEMENTS AND REPORTS. The Trust shall collect and safekeep all
demands, bills, invoices or other written communications received from third
parties in connection with any claim for Indemnification Expenses and shall
prepare and maintain adequate books and records showing all receipts and
disbursements of funds in connection therewith. Xxxxxxx Xxxxx and AMP each shall
have the right to inspect and to copy, at its expense, all such documents, books
and records at all reasonable times and from time to time during the term of
this Agreement.
6. TERM OF CONTRACT. This Agreement shall continue in effect until the
dissolution of the Trust in accordance with Section 8.3 of the Trust Agreement.
7. NO ASSIGNMENT. No party to this Agreement may assign its rights or
delegate its duties hereunder without the prior written consent of the other
parties, except that the Trust may delegate any and all duties hereunder to the
Administrator to the extent permitted by law.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement among
the parties with respect to the matters contained herein and supersedes all
prior agreements or understandings. No amendment or modification of this
Agreement shall be valid unless the amendment or modification is in writing and
is signed by all parties to this Agreement.
9. NOTICES. All notices, demands, reports, statements, approvals or
consents given by any party under this Agreement shall be directed as follows
(or to such other address for a particular party as shall be specified by such
party in a like notice given pursuant to this Section 9):
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Exhibit (k)(6)
The Trust: WBK STRYPES Trust
c/o Puglisi & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxx: Xxxxxxx Xxxxx & Co., Inc.
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
AMP: Australian Mutual Provident Society
AMP Building
00 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx
Xxxxxx, XXX 0000
Telecopier:______________
Attention:_______________
A copy of any communication to Xxxxxxx Xxxxx shall be furnished to Xxxxxxx Xxxxx
& Co., Inc., World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
telecopier (000) 000-0000, Attention: Associate General Counsel, provided that
the failure to furnish such copy shall not affect the effectiveness of any such
communication. Except as otherwise specifically provided herein, all notices and
other communications provided for hereunder shall be in writing and shall be
deemed to have been duly given if either (i) personally delivered (including
delivery by courier service or by Federal Express or any other nationally
recognized overnight delivery service for next day delivery) to the offices set
forth above, in which case they shall be deemed received on the first Business
Day by which delivery shall have been made to said offices, (ii) transmitted by
any standard form of telecommunication to the offices set forth above, in which
case they shall be deemed received on the first Business Day by which a standard
confirmation that such transmission occurred is received by the transmitting
party (unless such confirmation states that such transmission occurred after
5:00 P.M. on such first Business Day, in which case delivery shall be deemed to
have been received on the immediately succeeding Business Day), or (iii) sent by
certified mail, return receipt requested to the offices set forth above, in
which case they shall be deemed received when receipted for unless
acknowledgment of receipt is refused (in which case delivery shall be deemed to
have been received on the first Business Day on which such acknowledgment is
refused).
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Exhibit (k)(6)
10. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
11. CONSENT TO JURISDICTION; APPOINTMENT OF TO ACCEPT SERVICE OF PROCESS.
(a) Consent to Jurisdiction. AMP (referred to in this Section 11 as the
"Appointing Party") irrevocably consents and agrees that any legal action, suit
or proceeding against it with respect to its obligations, liabilities or any
other matter arising out of or in connection with this Agreement may be brought
in any United States federal or state court in the State of New York, County of
New York.
(b) Appointment of Service Agent. The Appointing Party designates,
appoints, and empowers CT Corporation System with offices currently at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its designee, appointee and agent to
receive and accept for and on its behalf, and its properties, assets and
revenues, service of any and all legal process, summons, notices and documents
that may be served in any action, suit or proceeding brought against the
Appointing Party in any such United States federal or state court with respect
to its obligations, liabilities or any other matter arising out of or in
connection with this Agreement and that may be made on such designee, appointee
and agent in accordance with legal procedures prescribed for such courts. If for
any reason such designee, appointee and agent hereunder shall cease to be
available to act as such, the Appointing Party agrees to designate a new
designee, appointee and agent in The City of New York on the terms and for the
purposes of this Section 11 satisfactory to Xxxxxxx Xxxxx. The Appointing Party
further hereby irrevocably consents and agrees to the service of any and all
legal process, summons, notices and documents in any such action, suit or
proceeding against the Appointing Party, by serving a copy thereof upon the
relevant agent for service of process referred to in this Section 11 (whether or
not the appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) with a copy to the
Appointing Party as provided in Section 9 of the Purchase Agreement. The
Appointing Party agrees that the failure of any such designee, appointee and
agent to give any notice of such service to it shall not impair or affect in any
way the validity of such service or any judgment rendered in any action or
proceeding based thereon. Nothing herein shall in any way be deemed to limit the
ability of the holders of the Securities, Xxxxxxx Xxxxx and the other persons
referred to in Sections 7 and 8 of the Purchase Agreement to serve any such
legal process, summons, notices and documents in any other manner permitted by
applicable law or to obtain jurisdiction over the Appointing Party, or bring
actions, suits or proceedings against it in such other jurisdictions, and in
such manner, as may be permitted by applicable law. The Appointing Party
irrevocably and unconditionally waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of venue of any of
the aforesaid actions, suits or proceedings arising out of or in connection with
this Agreement brought in the federal
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Exhibit (k)(6)
courts located in The City of New York or the courts of the State of New York
located in The City of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(c) Survival. The provisions of this Section 11 shall survive any
termination of this Agreement, in whole or in part.
12. FOREIGN TAXES. All payments by AMP to Xxxxxxx Xxxxx hereunder shall be
made free and clear of, and without deduction or withholding for or on account
of, any and all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereinafter
imposed, levied, collected, withheld or assessed by Australia or any other
jurisdiction in which AMP has a branch or an office from which payment is made
or deemed to be made, excluding (i) any such tax imposed by reason of Xxxxxxx
Xxxxx having some connection with any such jurisdiction other than its
participation as Underwriter hereunder, and (ii) any income or franchise tax on
the overall net income of Xxxxxxx Xxxxx imposed by the United States of America
or by the State of New York or any political subdivision of the United States of
America or of the State of New York (all such non-excluded taxes, "Foreign
Taxes"). If AMP is prevented by operation of law or otherwise from paying,
causing to be paid or remitting that portion of amounts payable hereunder
represented by Foreign Taxes withheld or deducted, then amounts payable under
this Agreement by such party shall, to the extent permitted by law, be increased
to such amount as is necessary to yield and remit to Xxxxxxx Xxxxx an amount
which, after deduction of all Foreign Taxes (including all Foreign Taxes payable
on such increased payments) equals the amount that would have been payable if no
Foreign Taxes applied.
13. WAIVER OF IMMUNITIES. To the extent that AMP or any of its respective
properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving of any
relief in any thereof, from set-off or counterclaim, from the jurisdiction of
any court, from service or process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to its obligations, liabilities or any other
matter under or arising out of or in connection with this Agreement or any of
the Fundamental Agreements, AMP hereby irrevocably and unconditionally waives
and agrees not to plead or claim, any such immunity and consents to such relief
and enforcement.
14. JUDGMENT CURRENCY. AMP agrees to indemnify Xxxxxxx Xxxxx against any
loss incurred by Xxxxxxx Xxxxx as a result of any judgment or order being given
or made for any amount due hereunder and such judgment or order being expressed
and paid in a currency
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Exhibit (k)(6)
(the "Judgment Currency") other than United States dollars and as a result of
any variation as between (i) the rate of exchange at which the United States
dollar amount is converted into the Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange at which Xxxxxxx Xxxxx is able
to purchase United States dollars, at the business day nearest the date of
judgment, with the amount of the Judgment Currency actually received by Xxxxxxx
Xxxxx. The foregoing indemnity shall constitute a separate and independent
obligation of AMP, and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "rate of exchange" shall
include any premiums and costs or exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
15. GOVERNING LAW. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such State.
16. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and
the same instrument.
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Exhibit (k)(6)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives the date first above written.
XXXXXXX XXXXX & CO., INC.
By:
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Name:
Title:
WBK STRYPES TRUST
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Xxxxxx X. Xxxxxxx, as Managing Trustee
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
By:
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Name:
Title:
