Exhibit (k)(5)
FUND EXPENSE AGREEMENT
This Agreement dated as of _________ __, 1997 among Australian Mutual
Provident Society, ("AMP"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and The
Bank of New York (the "Service Provider"), in its capacities as administrator
and custodian for WBK STRYPES Trust (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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ desire to make provisions for the payment
of certain initial and on-going 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. (a) Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the Trust Agreement.
(b) The following terms shall have the following meanings:
"ADR Expenses" means any reasonable expenses of the Trust incurred in
connection with depositing Bank Ordinary Shares with the Depositary in
accordance with Section 3.5 of the Trust Agreement.
"Additional Expense" means the Ordinary Expense the incurring of which
will require the Service Provider to provide the Additional Expense Notice
pursuant to Section 3(a) hereof and any Ordinary Expense incurred thereafter.
"Additional Expense Notice" means the notice required to be given by the
Service Provider to ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to Section 3(a) hereof.
"Closing Time" shall have the meaning ascribed thereto in the Purchase
Agreement.
Exhibit (k)(5)
"Offering Expense Amount" means the amount set forth as such on Schedule I
hereto as the fees and expenses of the Trust incurred in connection with the
offering of the STRYPES.
"Ordinary Expense" of the Trust means any expense of the Trust other than
ADR Expenses and any expense 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.
"Organizational Expense Amount" means the amount set forth as such on
Schedule II hereto as the fees and expenses of the Trust incurred in connection
with the organization of the Trust.
"Up-front Fee Amount" means the amount set forth as such on Schedule III
hereto payable as a one-time payment to the Service Provider in respect of its
collective services as Administrator, Custodian and Paying Agent for the entire
term of the Trust.
"Up-front Expense Amount" means the amount set forth as such on Schedule
IV hereto payable as a one-time payment to the Service Provider in respect of
Ordinary Expenses anticipated to be incurred by the Administrator on behalf of
the Trust, pursuant to the Administration Agreement, during the term of the
Trust.
2. AGREEMENT TO PAY UP-FRONT FEES AND OFFERING, ORGANIZATIONAL AND
UP-FRONT EXPENSES. The Up-front Fee Amount, the Offering Expense Amount, the
Organizational Expense Amount and the Up-Front Expense Amount shall be deducted
by the Trust and paid from the proceeds of the offering of the STRYPES.
3. AGREEMENT TO PAY ADDITIONAL EXPENSES. (a) Prior to incurring any
Ordinary Expense on behalf of the Trust that, together with all prior Ordinary
Expenses incurred by the Administrator on behalf of the Trust and all Ordinary
Expenses set forth on Schedule IV hereto which are anticipated but have not yet
been incurred by the Administrator on behalf of the Trust, would cause the
aggregate amount of Ordinary Expenses of the Trust to exceed the Up-front
Expense Amount, the Administrator shall provide to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and AMP (i)
prompt written notice to the effect that the aggregate amount of Ordinary
Expenses of the Trust will exceed the Up-front Expense Amount, and (ii) an
accounting, in such detail as shall be reasonably acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇
and AMP, of all Ordinary Expenses incurred on behalf of the Trust through the
date of the Additional Expense Notice.
(b) From and after the date of the Additional Expense Notice, the Service
Provider agrees that it will not, without the prior written consent of ▇▇▇▇▇▇▇
▇▇▇▇▇ and AMP, incur on behalf of the Trust (i) any single expense in excess of
$2,500 or (ii) in any calendar
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Exhibit (k)(5)
quarter expenses aggregating in excess of $5,000. Subject to the foregoing, the
Service Provider shall give notice to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and AMP in writing promptly
following the incurring of any Additional Expense. Such notice to ▇▇▇▇▇▇▇ ▇▇▇▇▇
shall be accompanied by any demand, ▇▇▇▇, invoice or other similar document in
respect of such Additional Expense.
(c) Subject to the first sentence of paragraph (b) of this Section 3,
▇▇▇▇▇▇▇ ▇▇▇▇▇ agrees to pay to the Service Provider from time to time the amount
of any Additional Expense. Payment by ▇▇▇▇▇▇▇ ▇▇▇▇▇ of any Additional Expense
shall be made in New York Clearing House (next-day) funds by the later of (i)
five Business Days after the receipt by ▇▇▇▇▇▇▇ ▇▇▇▇▇ from the Service Provider
of notice of the incurring thereof or (ii) two Business Days prior to the due
date for the payment of such Additional Expense.
(d) The Service Provider agrees to notify ▇▇▇▇▇▇▇ ▇▇▇▇▇ of the ADR
Expenses, if any, which notice shall be delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ at least five
Business Days prior to the Exchange Date or earlier date of distribution of the
Bank Ordinary Shares in exchange for the STRYPES. Payment by ▇▇▇▇▇▇▇ ▇▇▇▇▇ of
any ADR Expenses shall be made in New York Clearing House (next-day) funds by
noon on the second Business Day prior to such date.
(e) AMP agrees to reimburse ▇▇▇▇▇▇▇ ▇▇▇▇▇ from time to time for the amount
of any Additional Expense and any ADR expenses paid by ▇▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to
paragraph (c) or (d), as the case may be, of this Section 3. ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall
be reimbursed for any such Additional Expense or ADR expenses in New York
Clearing House (next-day) funds by the later of (i) five Business Days after the
receipt by AMP from the Service Provider of notice of the incurring thereof or
(ii) two Business Days prior to the due date for the payment of such Additional
Expense.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇ or AMP may contest in good faith the reasonableness of
any Additional Expenses or ADR Expense and the parties shall attempt to resolve
amicably the disagreement; provided that if the parties cannot resolve the
dispute by the due date hereunder with respect to such Additional Expense or ADR
Expenses, subject to the first sentence of paragraph (b) of this Section 3,
▇▇▇▇▇▇▇ ▇▇▇▇▇ shall pay the amount of such Additional Expense or ADR Expenses,
and AMP shall reimburse ▇▇▇▇▇▇▇ ▇▇▇▇▇ for the amount so paid, subject to later
adjustment and credit if such dispute is resolved in favor of ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
AMP, as the case may be.
4. CONDITION TO PAYMENT. The obligations of AMP under Sections 2 and 3
hereof and the obligations of ▇▇▇▇▇▇▇ ▇▇▇▇▇ under Section 3 hereof shall be
subject to the condition that the Structured Yield Product Exchangeable for
Stock(SM) (the "STRYPES") issued by the Trust shall have been issued and paid
for at the Closing Time.
--------
(SM) Service ▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
3
Exhibit (k)(5)
5. TRUST DISSOLUTION; REFUND OF UNUSED EXPENSE FUNDS. If at the
dissolution of the Trust in accordance with Section 8.3 of the Trust Agreement
the aggregate amount of Ordinary Expenses incurred by the Service Provider on
behalf of the Trust through the date of dissolution shall be less than the
Up-front Expense Amount plus any interest earned thereupon, the Service Provider
shall, promptly following the date of such dissolution, pay to AMP in New York
Clearing House (next-day) funds the amount of such excess.
6. TERMINATION OF ADMINISTRATION AGREEMENT. In the event of the
termination of the Administration Agreement in accordance with Section 4.1
thereof, the Service Provider shall promptly pay to AMP in New York Clearing
House (next-day) funds (i) the portion of the Service Provider's Up-front Fee
Amount ratable for the period from the date of the termination of the
Administration Agreement to the Exchange Date and (ii) any unexpended portion of
the Up-front Expense Amount plus any interest earned thereupon.
7. STATEMENTS AND REPORTS. The Service Provider shall collect and safekeep
all demands, bills, invoices or other written communications received from third
parties in connection with any Ordinary Expenses, Additional Expenses and ADR
Expenses and shall prepare and maintain (or cause to be prepared and maintained)
adequate books and records showing all receipts and disbursements of funds in
connection therewith. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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.
8. 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.
9. 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.
10. AMENDMENTS. The Service Provider agrees that it will not consent to
any amendment of the Administration Agreement, the Custodian Agreement, the
Paying Agent Agreement or the Nominee Trust Agreement without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ and AMP.
11. 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 the parties to this Agreement.
12. 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
4
Exhibit (k)(5)
address for a particular party as shall be specified by such party in a like
notice given pursuant to this Section 9):
The Service Provider: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
AMP: Australian Mutual Provident Society
AMP Building
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Telecopier: ___________
Attention: ____________
A copy of any communication to ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be furnished to ▇▇▇▇▇▇▇ ▇▇▇▇▇
& Co., Inc., World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
telecopier (▇▇▇) ▇▇▇-▇▇▇▇, 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
5
Exhibit (k)(5)
delivery shall be deemed to have been received on the first Business Day on
which such acknowledgment is refused).
13. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
14. CONSENT TO JURISDICTION; APPOINTMENT OF TO ACCEPT SERVICE OF PROCESS.
(a) Consent to Jurisdiction. AMP (referred to in this Section 14 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 ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 14 satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇. 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 14 (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 12. 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and the other persons referred to in Sections 7 and 8
in 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
6
Exhibit (k)(5)
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 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 14 shall survive any
termination of this Agreement, in whole or in part.
15. FOREIGN TAXES. All payments by AMP to ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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.
16. 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.
7
Exhibit (k)(5)
17. JUDGMENT CURRENCY. AMP agrees to indemnify ▇▇▇▇▇▇▇ ▇▇▇▇▇ against any
loss incurred by ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 (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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇. 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.
18. 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.
19. 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.
8
Exhibit (k)(5)
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their authorized representatives the date first above written.
AUSTRALIAN MUTUAL PROVIDENT SOCIETY
By:__________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., INC.
By:__________________________________
Name:
Title:
THE BANK OF NEW YORK
By:___________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Exhibit (k)(5)
SCHEDULE I
Item Amount
---- ------
SEC Registration Fees $294,092
NYSE Listing Fees 72,620
NASD Fees 30,500
Printing (other than STRYPES Certificates) 100,000
Legal Fees 80,000
Blue Sky Fees 2,000
Miscellaneous 10,000
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Total 589,212
Exhibit (k)(5)
SCHEDULE II
Item Amount
---- ------
STRYPES Certificates $ 2,000
Fees and Expenses of Special Delaware
Counsel to the Trust 12,000
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Total 14,000
Exhibit (k)(5)
SCHEDULE III
Item Amount
---- ------
Initial Acceptance Fee $ 10,000
Administrative Agent Fee 105,000
--------
Total 115,000
Exhibit (k)(5)
SCHEDULE IV
Item Amount
---- ------
Ongoing NYSE Listing Fees $ 49,856
Administrative Agent's Accountants 56,000
Initial and Ongoing Auditor of the Trust 25,000
Mailing of Reports to Shareholders 45,000
Trustees Fees 36,000
Preparation and Filing of Annual Tax
Returns of the Trust 8,000
Initial Legal Review 85,000
Out of Pocket/Miscellaneous 15,000
--------
Total 319,856
