DEPOSIT AGREEMENT
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This Deposit Agreement (this "Agreement"), is entered into on this third
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day of August, 2000, between the Commonwealth of Australia (the "Licensee"),
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Syntroleum Australia Licensing Corporation (the "Licensor") and Westpac Banking
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Corporation ABN 33 007 457 141 (the "Bank").
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WHEREAS, the Licensee and the Licensor have entered into a certain License
Agreement dated August 3, 2000 (the "License Agreement").
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WHEREAS, under the terms of the License Agreement, the Licensee may be required
to pay the Escrow Amount (as this term is defined in the License Agreement) to
the Bank, to be held and disbursed on the terms and subject to the conditions
set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual benefits and obligations
of the parties herein stated, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties, the
Licensee, the Licensor and the Bank hereby agree as follows:
1. Account. The Bank has established a segregated interest-bearing account
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in Australia in the name of the Licensor, account number BSB036000 Account
Number 398957 (the "Account"). The Bank acknowledges that the Licensee may from
time to time remit funds to the Bank for deposit into the Account; and in
such case, the Bank shall deposit such funds into the Account and maintain such
funds in the Account, solely on the terms and conditions of this Agreement.
2. Release and Delivery of Funds. The Bank shall release and transfer any
funds on deposit in, or credited to, the Account as follows:
(a) Promptly upon the Bank's receipt of a written notice from the Licensee
and the Licensor substantially in the form of the attached Exhibit A, that
appears on its face to be genuine, the Bank will comply with the instructions to
transfer the amount specified in such notice to the order of the Licensor
(to the account specified in such notice).
(b) Promptly upon the Bank's receipt of a written notice from the Licensee
substantially in the form of the attached Exhibit B, that appears on its face to
be genuine, the Bank will comply with the instructions to transfer the amount
specified in such notice to the order of the Licensee (to the account specified
in such notice).
(c) The Bank agrees not to permit any funds on deposit or credited to the
Account to be transferred to any person or entity other than (i) as expressly
set forth in clauses (a) and (b) of this Section 2 or (ii) upon express written
instructions jointly signed by the Licensee and the Licensor and containing a
representation by each of the Licensee and the Licensor that the person signing
the same is authorized to do so in accordance with the terms of this Agreement.
The Licensor and the Licensee hereby agree that in the event that the Licensor
is liquidated as a result of an involuntary proceeding brought against it under
any applicable bankruptcy, insolvency, reorganization or other similar law, the
Licensee shall be entitled to all amounts then on deposit in the Account.
(d) The Licensee agrees not to provide to the Bank any notice contemplated
by Exhibit B prior to 5:00 p.m. United States Central Standard Time on 31 August
2004. In the event that the Bank nevertheless receives any notice contemplated
by Exhibit B prior to September 1, 2004, the Bank shall not withdraw or transfer
funds or take any action on the basis of any such notice.
3. Interest. Credit balances in the Account shall bear interest, which will
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be calculated daily and paid monthly to the Account. Interest will be set at
the weekly average 30-day Bank Bill Offer Rate less 75 basis points (0.75%
p.a.), resulting in a current rate of approximately 5.36% p.a. (as at 13 July
2000). The 30-Day Bank Bill Offer Rate is published each day in the Australian
Financial Review newspaper and can be monitored via Reuters BBSY screen. This
rate is published daily and the average weekly rate can be calculated internally
from the published rate. Interest earned on funds that are on deposit in
or credited to the Account shall, in all events be deemed earned by the Licensor
and shall be added to the funds on deposit in the Account or paid to the
Licensor upon request by the Licensor; provided, however, that if the Bank at
any time receives a written notice from the Licensee substantially in the form
of the attached Exhibit C that appears on its face to be genuine (the "Major
Default Notice"), then the Licensor shall not be entitled to receive any amount
of interest accrued from the date specified in the Major Default Notice and the
Bank shall not pay such amount of interest to the Licensor until such time as
the Bank receives from the Licensee a written notice substantially in the form
of the attached Exhibit D that appears on its face to be genuine.
4. Extent of Bank's Responsibilities. The Bank's liabilities and
obligations are limited to those specifically set forth in this Agreement. The
Bank shall not be liable for any act or omission by it in good faith in
connection with this Agreement, provided, however, that the Bank shall be liable
for any negligence or willful misconduct on its part.
5. No Set-off. The Bank agrees that it will not obtain (by agreement,
operation of law or otherwise) a lien on or other charge over the Account or any
funds on deposit in or credited to the Account; and that such funds will not be
subject to deduction, set-off, banker's lien, or any other right in favor of any
person or entity other than the Licensor or the Licensee, provided that the Bank
may set off amounts due to it in respect of fees and expenses customarily
charged for its performance of the services described in this Agreement only
against accrued interest.
6. Expenses of Bank. All taxes (other than taxes on its overall net income)
costs and expenses incurred by Bank in carrying out the Bank's obligations under
this Agreement or in opening, operating, or closing the Account shall be paid or
reimbursed by the Licensor as incurred and the Bank may debit those costs and
expenses to the Account (but only against accrued interest) when they are
incurred.
7. Indemnification of Bank. The Licensor hereby agrees to indemnify, defend
and hold harmless Bank for all losses, costs and expenses (including reasonable
attorneys' fees) suffered or incurred by Bank and arising out of documents
entered into by the Bank, or matters, things and activities (acts and omissions)
of the Bank under this Agreement, provided that such activities were performed
by the Bank in good faith and without any negligence or willful misconduct on
the part of the Bank. This indemnification obligation shall survive the
termination of this Agreement.
8. Notices. All notices, requests, claims, demands or other communications
hereunder must be in writing and must be given by delivery in person, by prepaid
post (airmail, if appropriate) or by facsimile to the respective parties as
follows:
(a) If to Licensee, to:
Commonwealth of Australia
represented by Department of Industry Science
and Resources (Invest Australia)
Level 6, 20 Allara Street
Canberra ACT 2601
Australia
Facsimile: (61 2) 6213 7843
Telephone: (61 2) 6213 7560
Attention: General Manager, Invest Australia
(b) If to Licensor, to:
Syntroleum Australia Licensing Corporation
1350 S. Boulder, Suite 1100
Tulsa, Oklahoma 74119-3295
United States of America
Facsimile: (918) 592-7979
Telephone: (918) 592-7900
Attention: Carla Covey
(c) If to the Bank, to:
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth, Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Or such other address and/or facsimile as is furnished in writing by any party
to the others in accordance herewith, except that notices of change of address
are only effective upon receipt. Communications hereunder will be deemed to
have been received:
(i) immediately upon delivery in person;
(ii) if sent by post, they are taken to be received three days after posting
(or seven days after posting if sent to or from a place outside Australia).
(iii) if sent by fax, they are taken to be received at the time shown in the
transmission report as the time that the whole fax was sent.
Despite clauses 8(ii) and 8(iii) if they are received after 5.00 p.m. in
the place of receipt or on a non-business day, they are taken to be received at
9.00 a.m. in the place of receipt on the next business day. For the purposes of
this clause 8 "business day" means a day on which banks are open for general
banking business in the place where the notice is sent. All notices, requests,
claims, demands or other communications hereunder furnished by the Licensor must
be executed by one of the authorized signatories with respect to the Account.
The Licensor may, at any time, designate new or replacement authorized
signatories with respect to the Account, by providing written notice to the
Bank. All notices, requests, claims, demands or other communications hereunder
furnished by the Licensee must be executed by one of the authorized signatories
agreed upon by the Licensee and the Bank. The Licensee may, at any time,
designate new or replacement authorized signatories with respect to the Account
by providing written notice to the Bank.
9. Miscellaneous
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(a) This Agreement is the final expression of the parties hereto with
respect to the subject matter described herein and supersedes any and all other
agreements and understandings between the parties hereto, both written and oral;
(b) This Agreement may be amended, modified, supplemented and/or replaced
only by a written agreement signed by all of the parties hereto and in
accordance with the terms and conditions hereof;
(c) This Agreement shall not be assigned without the prior written consent
of the Bank, which consent will not be unreasonably withheld;
(d) This Agreement shall be governed by, and construed in accordance with,
the laws of the Australian Capital Territory. Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of the
Australian Capital Territory and courts of appeal from them. Each party waives
any right it has to object to an action being brought in those courts,
including, without limitation, by claiming that the action has been brought in
an inconvenient forum or that those courts do not have jurisdiction;
(e) Without preventing any other mode of service, any document in an action
(including, without limitation, any writ of summons or other originating process
or any third or other party notice) may be served on any party by being
delivered to or left for that party at its address for service of notices under
clause 9.
(f) This Agreement may be executed in any number of counterparts and by each
party as separate counterparts, each of which when so executed shall be deemed
to be an original and all of which, when taken together, shall constitute one
and the same instrument;
(g) This Agreement shall be binding upon, and inure to the benefit of, the
successors and assigns of the parties hereto;
(h) If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby;
(i) Each of the Licensee and the Licensor separately represent and warrant
to the Bank that any direction or request given by them to the Bank relating to
the payment of any amount from the Account;
(i) will be a correct and accurate direction or request in conformity with
the provisions of this Agreement; and
(ii) will have been validly authorized, executed and able to be relied upon
by the Bank in accordance with its terms.
(j) The Parties agree and acknowledge that under this Agreement the Bank is
acting only in the capacity of a banker and not in any other capacity whatsoever
including, without limitation, as trustee or as escrow agent; provided that this
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clause 9(j) is not intended to reduce, limit or otherwise affect the Bank's
responsibility for its negligence, willful misconduct, bad faith or breach of
its obligations in this Agreement.
(k) The Bank is not required to verify or ensure that the Account funds once
paid by the Bank as required by this Agreement are used in any manner and is not
liable for any loss or damage suffered by any person in relation to their use.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
COMMONWEALTH OF AUSTRALIA
By: /s/
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Name: Mike Holthuyzen
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Title: Deputy CEO
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"LICENSEE"
SYNTROLEUM AUSTRALIA LICENSING CORPORATION
By: /s/
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Name: Randall M. Thompson
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Title: Chief Financial Officer
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"LICENSOR"
WESTPAC BANKING CORPORATION
as the Bank
By: /s/
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Name: Leith Lyon Wintour
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Title: Manager, Legal
ACT Legal Unit
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"BANK"
EXHIBIT A
To Deposit Agreement
[Date]
NOTICE OF INSTRUCTION TO TRANSFER FUNDS TO LICENSOR
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Re: Account No. BSB036000 Account Number 398957 (the "Account")
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Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the "Deposit
Agreement") between you, Syntroleum Australia Licensing Corporation (the
"Licensor") and the Commonwealth of Australia (the "Licensee").
The Licensee hereby gives you notice that the Licensor is entitled to receive
the funds in the Account; and, accordingly, you may transfer such all or a
portion of such funds upon the order of the Licensor.
The Licensor hereby instructs you to transfer [all] [SPECIFY AMOUNT IF LESS THAN
ALL] of the funds in the Account, by electronic delivery of funds, to [SPECIFY
BANK OR INSTITUTION TO WHICH FUNDS ARE TO BE WIRED], account number [_______].
Each of the undersigned represents for your benefit that it is authorized to
execute and deliver this notice to you in accordance with the terms of the
Deposit Agreement.
Very truly yours,
Commonwealth of Australia Syntroleum Australia Licensing Corporation
By: By:
Name: Name:
Title: Title:
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EXHIBIT B
To Deposit Agreement
[Letterhead of the Licensee]
[Date - AFTER AUG. 31, 2004]
NOTICE OF INSTRUCTION TO TRANSFER ALL FUNDS TO LICENSEE
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Re: Account No. BSB036000 Account Number 398957 (the "Account")
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Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the "Deposit
Agreement") between you, Syntroleum Australia Licensing Corporation (the
"Licensor") and the Commonwealth of Australia (the "Licensee").
The Licensee has previously remitted for deposit into the Account an aggregate
amount equal to AUD$________. The amounts in the Account are no longer
available to the Licensor. Accordingly, the Licensee hereby requests that you
transfer all of the funds on deposit in the Account (after deducting all accrued
and unpaid interest earned thereon) to [SPECIFY BANK OR INSTITUTION TO WHICH
FUNDS ARE TO BE WIRED], account number [_______]. The accrued and unpaid
interest referred to in the preceding sentence is to be paid to the Licensor or
upon its order. [IF A NOTICE IN THE FORM OF EXHIBIT C HAD BEEN GIVEN UPON THE
OCCURRENCE OF A "MAJOR EVENT OF DEFAULT" AND THE SAME IS STILL IN EXISTENCE,
THEN REPLACE THE LAST SENTENCE WITH: "The accrued and unpaid interest referred
to in the preceding sentence is to be paid to the Licensee at [INSTRUCTIONS FOR
PAYMENT]].
The undersigned represents for your benefit that it is authorized to execute and
deliver this notice to you in accordance with the terms of the Deposit Agreement
and further represents for the benefit of the Licensor that it is authorized to
execute and deliver this notice in accordance with the terms of the License
Agreement referred to in the Deposit Agreement.
Very truly yours,
Commonwealth of Australia
By:
Name:
Title:
cc: Syntroleum Australia Licensing Corporation
EXHIBIT C
to Deposit Agreement
[Letterhead of the Licensee]
[Date]
NOTICE OF MAJOR DEFAULT -- INSTRUCTION TO FREEZE INTEREST
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61 8) 9426 2866
Attention: Mr. Tony Lofthouse
Re: Account No. BSB036000 Account Number 399052 (the "Account")
Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the
"Deposit Agreement") between you, Syntroleum Australia Licensing Corporation
(the "Licensor") and the Commonwealth of Australia (the "Licensee").
The Licensee hereby notifies you that a "Major Event of Default" has occurred
and is continuing under the License Agreement (as defined in the Deposit
Agreement). Accordingly, the Licensee hereby instructs you not to pay to the
Licensor any amount of interest earned on the Account from and after [INSERT
DATE OF DEFAULT], which is the date of the occurrence of such "Major Event of
Default", and until such date as we may specify to you in writing in
substantially the form of Exhibit D to the Deposit Agreement. All such amounts
of interest are to be added to the Account.
The undersigned represents for your benefit that it is authorized to execute and
deliver this notice to you in accordance with the terms of the Deposit Agreement
and further represents for the benefit of the Licensor that it is authorized to
execute and deliver this notice in accordance with the terms of the License
Agreement referred to in the Deposit Agreement.
Very truly yours,
Commonwealth of Australia
By:
Name:
Title:
cc: Syntroleum Australia Licensing Corporation
EXHIBIT D
to Deposit Agreement
[Letterhead of the Licensee]
[Date]
NOTICE OF END OF MAJOR DEFAULT -- INSTRUCTION TO UNFREEZE INTEREST
Westpac Banking Corporation
Level 14, 109 St George's Terrace,
Perth,
Western Australia 6000
Facsimile: (61-8) 9426 2866
Attention: Mr Tony Lofthouse
Re: Account No. BSB036000 Account Number 399052 (the "Account")
Ladies and Gentlemen:
We refer to the Deposit Agreement, dated as of August __, 2000 (the
"Deposit Agreement") between you, Syntroleum Australia Licensing Corporation
(the "Licensor") and the Commonwealth of Australia (the "Licensee").
The Licensee has previously delivered to you a written notice in substantially
the form of Exhibit C to the Deposit Agreement, notifying you that a "Major
Event of Default" had occurred and was continuing under the License Agreement
(as defined in the Deposit Agreement) and instructing you not to pay to the
Licensor (and instead, to add to the amount on deposit in the Account) any
amount of interest earned on the Account from and after the date specified in
that notice. The Licensee hereby notifies you that the "Major Event of Default"
specified in that notice no longer exists (or the Licensee otherwise waives its
rights with respect thereto), and, accordingly, the Licensee hereby instructs
you to pay to the Licensor (at the Licensor's request) all amounts of interest
earned on the Account at any time.
The undersigned represents for your benefit that it is authorized to execute and
deliver this notice to you in accordance with the terms of the Deposit Agreement
and further represents for the benefit of the Licensor that it is authorized to
execute and deliver this notice in accordance with the terms of the License
Agreement referred to in the Deposit Agreement.
Very truly yours,
Commonwealth of Australia
By:
Name:
Title:
cc: Syntroleum Australia Licensing Corporation