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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933


Westpac Banking Corporation
(Exact name of registrant as specified in its charter)

Australia
(State or other jurisdiction of
incorporation or organization)
  98-6008211
(I.R.S. Employer Identification No.)

275 Kent Street, Sydney NSW 2000
Australia
(+61) 2 9293-9270
(Address, including zip code and telephone number,
including area code, of registrant's principal executive offices)


Manuela Adl
Senior Vice President and Chief Operating Officer
Westpac Banking Corporation
575 Fifth Avenue, 39th Floor
New York, New York 10017-2422
(212) 551-1905
(Name, address, including zip code, and telephone number,
including area code, of agent for service)

Copies to:

Alan H. Paley, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022


Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this Registration Statement.


          If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.     o

          If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.     ý

          If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     o

          If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.     o

          If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.     o


CALCULATION OF REGISTRATION FEE

 
Title of each class of securities to be registered
  Proposed maximum aggregate offering price(1)(2)
  Amount of registration fee(3)(4)
 
Senior Debt Securities   (5)   (5)
 
Subordinated Debt Securities   (5)   (5)
 
Total   $2,000,000,000.00   $69,659.25
 
(1)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended, which we refer to as the Securities Act.

(2)
If any securities are (a) denominated or payable in a foreign currency or currencies, such principal amount as shall result in an aggregate initial offering price equivalent to $2,000,000,000.00 or (b) issued at an original issue discount, such principal amount as shall result in an aggregate initial offering price of $2,000,000,000.00.

(3)
The registration fee has been calculated on the basis of the maximum aggregate offering price of all securities listed in accordance with Rule 457(o) under the Securities Act.

(4)
Pursuant to Rule 415(a)(6) under the Securities Act, the securities registered pursuant to this Registration Statement include US$227,500,000.00 of unsold debt securities previously registered on the registrant's Registration Statement on Form F-3 (Registration No. 333-10546), filed with the Securities and Exchange Commission on July 1, 1999, registering securities for a maximum aggregate offering price of US$1,000,000,000.00, which we refer to as the Prior Registration Statement. The registrant paid a registration fee of US$63,245.00 in connection with the registration of such unsold securities on the Prior Registration Statement. Accordingly, the amount of the registration fee has been calculated based on the proposed maximum offering price of the additional US$1,772,500,000.00 of securities registered on this Registration Statement and the registrant is paying US$69,659.25 in filing fees for this Registration Statement. Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this Registration Statement.

(5)
Omitted pursuant to General Instruction II.C of Form F-3 under the Securities Act.

THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.


The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

Subject to Completion
Preliminary Prospectus dated September 16, 2008

PROSPECTUS

GRAPHIC

Westpac Banking Corporation

ABN 33 007 457 141

Debt Securities

        By this prospectus, we may offer from time to time the securities described in this prospectus separately or together in any combination.

        Specific terms of any securities to be offered will be provided in a supplement to this prospectus. You should read this prospectus and any supplement carefully before you invest. A supplement may also add to, update, supplement or clarify information contained in this prospectus.

        Unless stated otherwise in a prospectus supplement or term sheet, none of these securities will be listed on any securities exchange.

        The debt securities are not deposit liabilities for the purpose of the Banking Act of 1959 of Australia and are not insured by the United States Federal Deposit Insurance Corporation or any other governmental agency or instrumentality.

        We may offer and sell these securities to or through one or more agents, underwriters, dealers or other third parties or directly to one or more purchasers on a continuous or delayed basis.

         Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.


The date of this prospectus is                        , 2008.



TABLE OF CONTENTS

ABOUT THIS PROSPECTUS

    ii  

FORWARD-LOOKING STATEMENTS

    ii  

WESTPAC BANKING CORPORATION

    1  

USE OF PROCEEDS

    3  

DESCRIPTION OF THE DEBT SECURITIES

    4  

TAXATION

    18  

PLAN OF DISTRIBUTION

    20  

WHERE YOU CAN FIND MORE INFORMATION

    22  

INCORPORATION OF INFORMATION WE FILE WITH THE SEC

    22  

ENFORCEABILITY OF FOREIGN JUDGMENTS IN AUSTRALIA

    24  

CURRENCY OF PRESENTATION AND EXCHANGE RATES

    24  

VALIDITY OF SECURITIES

    25  

EXPERTS

    25  

LIMITATION ON INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM'S LIABILITY

    25  


ABOUT THIS PROSPECTUS

        This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as the SEC, utilizing a "shelf" registration process. Under this shelf process, we are registering each class of securities described in this prospectus, and we may sell the securities described in this prospectus alone or in any combination in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement or term sheet that will contain specific information about the terms of that offering. The prospectus supplement or term sheet may also add to, update, supplement or clarify information contained in this prospectus. The rules of the SEC allow us to incorporate by reference information into this prospectus. This information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. See "Incorporation of Information We File with the SEC." You should read both this prospectus and any prospectus supplement or term sheet together with additional information described under the heading "Where You Can Find More Information."

        No person has been authorized to give any information or to make any representation, other than those contained or incorporated by reference in this prospectus and, if given or made, such information or representation must not be relied upon as having been authorized by Westpac Banking Corporation, or any underwriter, agent or dealer. Neither the delivery of this prospectus nor any sale made pursuant to this prospectus shall under any circumstances create any implication that there has been no change in the affairs of Westpac Banking Corporation since the date of this prospectus or that the information contained or incorporated by reference in this prospectus is correct as of any time subsequent to the date of such information. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities by anyone in any jurisdiction in which such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation.

        Unless otherwise indicated, or the context otherwise requires, references in this prospectus to "we," "us" and "our" or similar terms are to Westpac Banking Corporation and its controlled entities (within the meaning of Section 50AA of the Commonwealth of Australia's, which we refer to as Australia, Corporations Act 2001, which we refer to as the Australian Corporations Act), and references to "Westpac" are to Westpac Banking Corporation ABN 33 007 457 141.


FORWARD-LOOKING STATEMENTS

        Some of the statements contained in this prospectus or incorporated by reference are forward-looking statements. These forward-looking statements are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 and include statements regarding our intent, belief or current expectations with respect to our business and operations, market conditions and results of operations and financial condition. We use words such as "may", "expect", "intend", "plan", "estimate", "anticipate", "believe", "probability", "risk" or other similar words to identify forward-looking statements. These forward-looking statements are subject to change and uncertainty which are, in many instances, beyond our control and have been made based upon management's expectations and beliefs concerning future developments and their potential effect upon us. There can be no assurance that future developments will be in accordance with management's expectations or that the effect of future developments on us will be those anticipated by management. Actual results could differ materially from those we expect, depending on the outcome of various factors, including, but not limited to, those set forth in our most recently filed Annual Report on Form 20-F and the other documents incorporated by reference in this prospectus. These factors include:

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        All forward-looking statements speak only as of the date made, and we undertake no obligation to update our forward-looking statements for any reason, whether as a result of new information, future events or otherwise.

iii



WESTPAC BANKING CORPORATION

        We are one of the four major banking organizations in Australia and, through our New Zealand operations, we are also one of the largest banking organizations in New Zealand. We and our controlled entities provide a broad range of banking and financial services in these markets, including retail, business and institutional banking and wealth management services.

        We were founded in 1817 and were the first bank to be established in Australia. In 1850 we were incorporated as the Bank of New South Wales by an Act of the New South Wales Parliament. In 1982 we changed our name to Westpac Banking Corporation. On August 23, 2002, we were registered as a public company limited by shares under the Australian Corporations Act.

        We have branches, affiliates and controlled entities throughout Australia, New Zealand and the Pacific region and maintain offices in some of the key financial centers around the world. In July 2008, we reorganized our business into four key customer-facing divisions, serving over 7 million customers, which are:

        These customer-facing divisions are supported by a number of corporate level functions and divisions, including:

Westpac Retail and Business Banking

        Westpac Retail and Business Banking, which we refer to as WRBB, is responsible for sales, marketing and customer service for all consumer, commercial and small-to-medium enterprise customers within Australia. WRBB offers a broad range of financial products, including savings and check accounts, demand and term deposits, credit cards, personal and housing loans, and business specific working capital, transactional, cash flow and trade finance facilities.

        WRBB conducts sales and servicing activities through our branch network (825 as at September 30, 2007, including in-store branches), RAMS franchise outlets, home finance managers, specialized consumer relationship managers, call centers, automatic teller machines, which we refer to as ATMs, and internet banking services. For business customers, these activities are conducted by specialized relationship managers, with the support of cash flow, financial markets and wealth specialists, via the branch network, business banking centers, internet and telephone channels.

        WRBB is also responsible for the management of our third party retail and business distribution relationships.

        Prior to our reorganization in July 2008, these activities were separately managed by Consumer Financial Services, which we referred to as CFS, for consumer customers, and Business Financial Services, which we referred to as BFS, for small-to-medium enterprise and commercial customers.

        We have a significant presence in the retail deposits and working capital market in Australia. In the year ended September 30, 2007 total deposits for CFS increased by 11% to A$53.2 billion (2006

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A$48.0 billion) and total deposits for BFS, comprising both deposit products and working capital products, increased by 15% to A$51.5 billion (2006 A$44.8 billion).

        We are a significant lender in the housing finance market in Australia. In the year ended September 30, 2007, our residential mortgage loan portfolio increased 12% to A$125.6 billion (2006 A$111.9 billion) (inclusive of securitized loans) from September 30, 2006, with variable interest rate loans comprising 80% of the portfolio. A significant portion of our housing finance sales are through independent mortgage brokers. In the year ended September 30, 2007, approximately 38% (2006 38%) of mortgage loan drawdowns were arranged via this channel. In addition, we are a major provider of credit card finance in Australia. Our total credit card outstandings as at September 30, 2007 increased by 9% to A$7.3 billion (2006 A$6.7 billion).

        We are also a major lender in the business finance market in Australia. In the year ended September 30, 2007, our total lending portfolio increased by 16% to A$53.3 billion (2006 A$45.7 billion) with term lending increasing 18%, bill acceptances increasing 18%, and equipment finance increasing 10%. The balance of the portfolio comprises revolving cash management facilities and trade finance.

BT Financial Group Australia

        BT Financial Group Australia, which we refer to as BTFG, is Westpac's wealth management business. BTFG manufactures and distributes financial products that are designed to help our customers accumulate, manage and protect their wealth. These products include retail investments, personal and business superannuation (pensions), life and general insurance and client portfolio administration (Wrap and master trust platforms). BTFG also provides financial planning advice and private banking services.

        In December 2007, we completed a partial sale of our investment management business, BT Investment Management Limited, which we refer to as BTIM, in an initial public offering. We retain a 60% shareholding in BTIM, which continues to manage the funds for many of our investment products in addition to its own, and third party, investment products. BTFG continues to distribute our other financial products.

        Our retail, institutional and wholesale funds under management, including funds under management by BTIM, totaled A$41.3 billion (2006 A$39.0 billion) and funds under administration totaled A$46.2 billion (2006 A$40.4 billion) as at September 30, 2007.

Westpac Institutional Bank

        Westpac Institutional Bank, which we refer to as WIB, services the financial needs of corporate, institutional and government customers either based in, or with interests in, Australia and New Zealand. This is achieved through dedicated industry teams supported by specialists with expertise in financial markets, transactional banking and debt capital markets. WIB provides access to global markets across a broad range of products through its debt markets, foreign exchange and commodities businesses. WIB's equities business provides margin lending, structured products, managed portfolios and online broking services to retail and high net worth customers. In addition, WIB's Hastings Funds Management manufactures alternative investment products in areas such as infrastructure and property.

        WIB supports customers through branches and subsidiaries located in Australia, New Zealand, New York, London and Asia. Our Pacific region banking operations, which provide a full range of deposit, loan, transaction account and international trade facilities to personal and business customers in the near Pacific, are managed within WIB.

2


New Zealand Banking

        We are one of New Zealand's largest banking organizations and provide a full range of retail banking, wealth management and business banking products and services to approximately 1.3 million New Zealand based customers. As at September 30, 2007, we had approximately 5,000 staff, 197 branches (including agency sites) and 476 Westpac branded ATMs operating throughout New Zealand.

        We are the third largest provider of housing finance in New Zealand. As at September 30, 2007, our mortgage loan portfolio was NZ$29.7 billion (A$25.4 billion) (including securitized loans). In addition, we are a major provider of wealth management services, with NZ$1.9 billion (A$1.6 billion) in funds under management as at September 30, 2007.

        We operate in New Zealand through both a branch of Westpac and a separate New Zealand banking subsidiary, Westpac New Zealand Limited, which we refer to as WNZL. WNZL is a registered bank under the Reserve Bank of New Zealand Act 1989. As a result of a reorganization of our New Zealand operations in 2006, WNZL provides the full range of consumer and business banking products and services to customers that previously were provided by our New Zealand branch. Our New Zealand branch retains its wholesale banking and financial markets businesses. We continue to provide certain systems and other operational support to WNZL.


USE OF PROCEEDS

        We intend to use the net proceeds from the sale of the securities offered by this prospectus for general corporate purposes, unless otherwise specified in the prospectus supplement or term sheet relating to a specific issue of securities. Our general corporate purposes may include financing our activities and those of our subsidiaries, including refinancing outstanding indebtedness, financing our assets and those of our subsidiaries, lengthening the average maturity of our borrowings, and financing acquisitions.

        Until we use the net proceeds from the sale of any of our securities offered by this prospectus for general corporate purposes, we may use the net proceeds to reduce our short-term indebtedness or for temporary investments.

3



DESCRIPTION OF THE DEBT SECURITIES

        We may offer unsecured general obligations, which may be senior debt securities or subordinated debt securities. The senior debt securities and the subordinated debt securities are together referred to in this prospectus as the "debt securities."

        The senior debt securities will be issued in one or more series under an indenture, dated as of July 1, 1999, between us and The Bank of New York Mellon as successor to The Chase Manhattan Bank, as trustee, which we refer to as the senior indenture. The subordinated debt securities will be issued under an amended and restated subordinated indenture, dated as of May 15, 2003, between us and The Bank of New York Mellon as successor to JPMorgan Chase Bank, as trustee, which we refer to as the subordinated indenture. Each indenture provides that there may be more than one trustee, each with respect to one or more series of debt securities.

        We have summarized below certain terms of the indentures which we believe will be most important to your decision to invest in our debt securities. You should keep in mind, however, that it is the indentures, and not this summary, which define your rights as a debtholder. There may be other provisions in the indentures which are also important to you. You should read the indentures for a full description of the terms of the debt securities. The senior indenture and the subordinated indenture are filed as exhibits to the registration statement that includes this prospectus. See "Where You Can Find More Information" for information on how to obtain copies of the senior indenture and the subordinated indenture. References in parenthetical below to sections or articles are to sections or articles of the indentures.

        The following description of the terms of the debt securities sets forth certain general terms and provisions of the debt securities to which any prospectus supplement or term sheet may relate. The particular terms of the debt securities offered by any prospectus supplement or term sheet and the extent, if any, to which such general provisions may not apply to the debt securities will be described in the related prospectus supplement or term sheet. Accordingly, for a description of the terms of a particular issue of debt securities, you should refer to both the related prospectus supplement or term sheet and to the following description.

Ranking

        Senior debt securities will be Westpac's direct, unconditional and unsecured obligations and will rank equally without any preference among themselves and, except for certain debts required to be preferred by law (including those in respect of Westpac's deposit liabilities in Australia), equally with all of Westpac's other unsecured and unsubordinated obligations. The senior debt securities will rank senior to Westpac's subordinated obligations, including any subordinated debt securities.

        Subordinated debt securities will be Westpac's direct and unsecured obligations and will rank equally without any preference among themselves and, except for certain debts required to be preferred by law (including those in respect of Westpac's deposit liabilities in Australia), at least equally with all of Westpac's subordinated indebtedness. Subordinated indebtedness means indebtedness (present and future) that by its terms is, or is expressed to be, subordinated in the event of Westpac's winding up (as defined below) to the claims of its senior creditors (as defined below), other than (i) indebtedness that does not have a fixed maturity date and (ii) indebtedness the right to repayment of which by its terms is, or is expressed to be, subordinated in the event of Westpac's winding up to the subordinated debt securities. The subordinated debt securities will be subordinated to, and will be entitled to payment only after payment of, Westpac's senior creditors as described below under the caption "—Provisions Applicable Only to Subordinated Debt Securities—Subordination."

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        The debt securities are not deposit liabilities for the purpose of the Banking Act of 1959 of Australia and are not insured by the United States Federal Deposit Insurance Corporation or any other governmental agency or instrumentality.

General Terms of the Debt Securities

        Westpac may issue the debt securities in one or more series pursuant to an indenture that supplements the senior indenture or the subordinated indenture, as the case may be, or a resolution of our board of directors or a duly authorized committee of our board of directors. (Section 3.1 of each indenture.) The aggregate principal amount of debt securities that may be issued under the indentures is unlimited. You should refer to the applicable prospectus supplement or term sheet for the specific terms of each series of debt securities which may include the following:

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        One or more series of debt securities may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market rates. One or more series of debt securities may be variable rate debt securities that may be exchanged for fixed rate debt securities. United States federal and Australian tax consequences and special considerations applicable to any series will be described in the applicable prospectus supplement or term sheet.

        Debt securities may be issued where the amount of principal and/or interest payable is determined by reference to:

        Holders of such debt securities may receive a principal amount or a payment of interest that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending upon the value of the applicable currencies, commodities, securities, derivatives, indices or other factors. Information as to the methods for determining the amount of principal or interest, if any, payable on any date, the currencies, commodities, securities, derivatives, indices or other factors to which the amount payable on such date is linked and certain additional United States federal and Australian tax consequences and special considerations applicable to any series will be described in the applicable prospectus supplement or term sheet.

        The term "debt securities" includes debt securities denominated in U.S. dollars or, if specified in the applicable prospectus supplement or term sheet, in any other freely transferable currency or units based on or relating to foreign currencies.

        We expect most debt securities to be issued in fully registered form without coupons and in denominations of $1,000 and any integral multiple of $1,000. (Section 3.2 of each indenture.) Subject to the limitations provided in the indentures and in the prospectus supplement or term sheet, debt securities which are issued in registered form may be registered, transferred or exchanged at the principal corporate trust office of the trustee or at the office or agency that we will maintain for such purpose in the Borough of Manhattan, The City of New York, without the payment of any service charge, other than any tax or other governmental charge payable in connection with the registration or transfer or exchange. (Sections 3.5 and 9.2 of each indenture.)

        Westpac may issue debt securities of any series in whole or in part in definitive form or in the form of one or more global debt securities as described below under "Global Securities." Westpac may issue debt securities of a series at different times. In addition, Westpac may issue debt securities within a series with terms different from the terms of other debt securities of that series. (Section 3.1(c) of each indenture.)

        Subject to applicable law, Westpac or any of its affiliates may at any time purchase or repurchase debt securities of any series in any manner and at any price. Debt securities of any series purchased by Westpac or any of its affiliates may be held or surrendered by the purchaser of the debt securities for cancellation.

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Global Securities

        We expect the following provisions to apply to all debt securities.

        Westpac may issue the debt securities of a series in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified in the prospectus supplement or term sheet. Westpac will issue global securities in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for the individual debt securities, a global security may not be transferred except as a whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor. (Section 2.4 of each indenture.)

        The specific terms of the depositary arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial interests in a global security will be described in the prospectus supplement or term sheet. We expect that the following provisions will generally apply to depositary arrangements.

        Upon the issuance of a global security, the depositary for such global security or its nominee will credit, on its book-entry registration and transfer system, the respective principal amounts of the individual debt securities represented by such global security to the accounts of persons that have accounts with such depositary. Such accounts shall be designated by the dealers, underwriters or agents with respect to the debt securities or by us if such debt securities are offered and sold directly by us. Ownership of beneficial interests in a global security will be limited to persons that have accounts with the applicable depositary, who are referred to in this prospectus as participants, or persons that may hold interests through participants. Ownership of beneficial interests in such global security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable depositary or its nominee with respect to interests of participants and the records of participants with respect to interests of persons other than participants. The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to transfer beneficial interests in a global security.

        So long as the depositary for a global security, or its nominee, is the registered owner of a global security, such depositary or such nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by that global security for all purposes under the indenture governing those debt securities. Except as provided below, owners of beneficial interests in a global security will not be entitled to have any of the individual debt securities of the series represented by that global security registered in their names, will not receive or be entitled to receive physical delivery of any debt securities of such series in definitive form and will not be considered the owners or holders thereof under the indenture governing such debt securities.

        Payments of principal, premium, if any, and interest, if any, on individual debt securities represented by a global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the global security representing the debt securities. Neither Westpac, the trustee for the debt securities, any paying agent, nor the registrar for the debt securities will have any responsibility or liability for any aspect of the records relating to or payments made by the depositary or any participants on account of beneficial ownership interests in the global security for the debt securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

        We expect that the depositary for a series of debt securities or its nominee, upon receipt of any payment of principal, premium or interest in respect of a permanent global security representing the debt securities, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such global security for the debt

7



securities as shown on the records of the depositary or its nominee. We also expect that payments by participants to owners of beneficial interests in a global security held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name". Such payments will be the responsibility of such participants.

        If the depositary for a series of debt securities notifies us at any time that it is unwilling, unable or ineligible to continue as depositary and a successor depositary is not appointed by us within 90 days, Westpac will issue definitive debt securities of that series in exchange for the global security or securities representing that series of debt securities. In addition, we may at any time and in our sole discretion, subject to any limitations described in the prospectus supplement or term sheet relating to the debt securities, determine not to have any debt securities of a series represented by one or more global securities, and, in such event, will issue definitive debt securities of that series in exchange for the global security or securities representing that series of debt securities. If definitive debt securities are issued, an owner of a beneficial interest in a global security will be entitled to physical delivery of definitive debt securities of the series represented by that global security equal in principal amount to that beneficial interest and to have the debt securities registered in its name. Definitive debt securities of any series so issued will be issued in denominations, unless otherwise specified by us, of $1,000 and integral multiples of $1,000 in excess thereof.

Payment of Additional Amounts

        Each indenture provides that Westpac will make all payments in respect of the debt securities without withholding or deduction for, or on account of, any taxes, assessments or other governmental charges, which we refer to as the relevant tax, imposed or levied by or on behalf of Australia or any political subdivision or authority in or of Australia, unless the withholding or deduction is required by law. In that event, Westpac will pay such additional amounts as may be necessary so that the net amount received by the holder of the debt securities, after such withholding or deduction, will equal the amount that the holder would have received in respect of the debt securities without such withholding or deduction. However, Westpac will pay no additional amounts:

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In addition, Westpac will pay no additional amounts to any holder who is a fiduciary or partnership or other than the sole beneficial owner of the payment in respect of the debt securities to the extent such payment would, under the laws of Australia or any political subdivision or authority of or in Australia, be treated as being derived or received for tax purposes by a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to additional amounts had it been the holder of the debt securities. (Section 9.8 of each indenture.)

Redemption of Debt Securities

        If the debt securities of a series provide for redemption at Westpac's election, unless otherwise provided in the applicable prospectus supplement or term sheet, such redemption shall be on not less than 30 nor more than 60 days' notice and, in the event of redemption in part, the debt securities to be redeemed will be selected by the trustee by such method as it shall deem fair and appropriate. Notice of such redemption will be mailed to holders of debt securities of such series to their last addresses as they appear on the register of the debt securities of such series. (Sections 1.6, 10.3 and 10.4 of each indenture.)

        Each indenture provides that Westpac will have the right, after receipt of prior written approval by the Australian Prudential Regulation Authority, if approval is then required, to redeem a series of debt securities in whole, but not in part, at any time within 90 days following the occurrence of a tax event, which is defined below, with respect to such series of debt securities; provided , however , that, if at the time there is available to Westpac the opportunity to eliminate, within the 90-day period, the risk that any payment on the debt securities is, or will be, subject to such withholding or deduction by taking some ministerial action, such as filing a form or making an election, or pursuing some other similar reasonable measure that in Westpac's sole judgment has or will cause no adverse effect on Westpac or any of Westpac's subsidiaries or affiliates and will involve no material cost, Westpac will pursue that measure in lieu of redemption. "Tax event" means that Westpac has requested and received an opinion of competent tax counsel to the effect that there has been:

which amendment or change is adopted or which proposed change, decision or pronouncement is announced or which action, clarification or challenge occurs on or after, with respect to taxes imposed by Australia or any political subdivision thereof or therein, the date of the applicable prospectus supplement or such term sheet, and, in the case of the subordinated debt securities, in the event of the

9



assumption pursuant to the subordinated indenture of the obligations of Westpac by a successor person organized under the laws of a jurisdiction other than Australia (or any political subdivision thereof), with respect to taxes imposed by a non-Australian jurisdiction, the date of the transaction resulting in such assumption, in each case following which there is more than an insubstantial risk that any payment on such series of debt securities is, or will be, subject to withholding or deduction in respect of any taxes, assessments or other governmental charges.

        If Westpac redeems debt securities in these circumstances, the redemption price of each debt security redeemed will be equal to 100% of the principal amount of such debt security plus accrued and unpaid interest on such debt security to the date of redemption or any other amount as specified in the applicable prospectus supplement or term sheet. (Section 10.8 of each indenture.)

Events of Default, Notice and Waiver

        The senior indenture provides that, if an event of default in respect of any series of senior debt securities shall have occurred and be continuing, either the trustee or the holders of not less than 25% in principal amount of the outstanding senior debt securities of that series may declare the principal amount (or a portion thereof in the case of certain senior debt securities issued with original issue discount) of all the senior debt securities of that series to be due and payable immediately, by written notice to Westpac (and by written notice to the trustee if given by the holders). The consequence of this action is that the principal amount of the senior debt securities shall be immediately due and payable by Westpac. (Section 5.2 of the senior indenture.)

        The senior indenture defines events of default in respect of any series of senior debt securities as:

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         Events of Default.     The subordinated indenture provides that, if an event of default in respect of any series of subordinated debt securities shall have occurred and be continuing, either the trustee or the holders of not less than 25% in principal amount of the outstanding subordinated debt securities of that series may declare the principal amount (or a portion thereof in the case of certain subordinated debt securities issued with original issue discount) of all the subordinated debt securities of that series to be due and payable immediately, by a written notice to Westpac (and by written notice to the trustee if given by the holders). The consequence of this action is that the principal amount of the subordinated debt securities shall be immediately due and payable by Westpac. (Section 5.2 of the subordinated indenture.)

        Notwithstanding such declaration, no payments will be made to holders of subordinated debt securities until all senior creditors, as defined under "—Provisions Applicable Only to Subordinated Debt Securities—Subordination," have been paid in full. For information concerning the rights of holders of subordinated debt securities after proceedings for a winding-up of Westpac have been instituted, see "—Provisions Applicable Only to Subordinated Debt Securities—Status After the Commencement of a Winding-Up of Westpac".

        The subordinated indenture defines an event of default in respect of any series of subordinated debt securities as:

         Defaults.     If a default in respect of any series of subordinated debt securities shall have occurred and be continuing, the trustee may in its discretion institute any appropriate judicial proceeding as it shall deem most effectual to protect and enforce its rights and the rights of the holders of the subordinated debt securities of that series, the holders shall have no right to accelerate the payment of principal amounts unless the default is also an event of default. (Section 5.3 of the subordinated indenture.)

        The subordinated indenture defines a default in respect of any series of subordinated debt securities as:

11


         Provisions Applicable to Senior and Subordinated Debt Securities

        The Trust Indenture Act of 1939 and Section 6.5 of each indenture provide that the trustee will, within 90 days after the occurrence of an event of default or (in the case of the subordinated indenture) a default in respect of any series of debt securities, give to the holders of that series notice of all uncured defaults known to it; provided that , except in the case of default in the payment on any of the debt securities of that series, the trustee will be protected in withholding such notice if it in good faith determines that the withholding of such notice is in the interest of the holders of that series. The terms "event of default" and "default" for the purpose of this provision mean any event which is, or after notice or lapse of time or both would become, an event of default or (in the case of the subordinated indenture) a default with respect to debt securities of such series.

        Each indenture provides that the holders of a majority in aggregate principal amount of the outstanding debt securities of any series may, subject to limitations, direct the time, method and place of conducting proceedings for any remedy available to the trustee, or exercising any trust or power conferred on the trustee in respect of the debt securities of that series. (Section 5.8 of each indenture.)

        Each indenture provides that the trustee, subject to the duty of the trustee during an event of default in respect of any series of debt securities to act with the required standard of care, will not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties under the indentures, or in the exercise of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (Section 6.1(g) of each indenture.)

        Each indenture includes covenants that Westpac will file annually with the trustee a certificate of compliance with all conditions and covenants under each indenture. (Section 9.7 of each indenture.)

        In certain cases, the holders of a majority in aggregate principal amount of the outstanding debt securities of a series may by providing written notice to the trustee, on behalf of the holders of all debt securities of that series, waive any past default or event of default, or compliance with certain provisions of the indenture, except for defaults or events of default not already cured in the payment of the principal of, or premium, if any, or interest on any of the debt securities of that series or any coupon related to such debt securities or compliance with certain covenants. (Section 5.7 of each indenture.)

Modification of the Indentures

        Each indenture contains provisions permitting Westpac and the trustee to enter into one or more supplemental indentures without the consent of the holders of any of the debt securities in order to:

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        Each indenture also contains provisions permitting Westpac and the trustee, with the consent of the holders of not less than a majority of the aggregate principal amount of the outstanding debt securities of the affected series, to execute supplemental indentures adding any provisions to or changing or eliminating any of the provisions of the indenture or modifying the rights of the holders of debt securities of that series. No supplemental indenture may, without the consent of the holders of all of the affected debt securities, among other things:

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        In addition, material variations in the terms and conditions relating to redemption, events of default, and, in the case of subordinated debt securities, subordination may require the consent of the Australian Prudential Regulation Authority.

Satisfaction and Discharge of the Indentures; Defeasance

        The indenture shall generally cease to be of any further effect with respect to a series of debt securities when:

The trustee shall hold in trust all money deposited with it as described above and shall apply the deposited money, in accordance with the provisions of the debt securities of the defeased series and the indenture, to the payment, either directly or through any paying agent, as the trustee may determine, to the persons entitled thereto, of principal, premium, if any, and any interest for whose payment such money has been deposited with or received by the trustee. (Section 4.2 of each indenture.)

Record Dates

        Westpac will generally be entitled to set any date as the record date for the purpose of determining the holders of debt securities entitled to give or take any action under the senior indenture or the subordinated indenture in the manner specified in such indenture. If a record date is set, action

14



may only be taken by persons who are holders of debt securities on the record date. Also, unless otherwise specified in the prospectus supplement or term sheet applicable to a series of debt securities, to be effective, any action must be taken within 180 days of the record date. (Section 1.4(g) of each indenture.)

Notice

        Notices to holders of debt securities will be given by mail to the addresses of holders appearing in the applicable securities register. Westpac and the trustee may treat the person in whose name a debt security is registered as the owner thereof for all purposes. (Sections 1.6 and 3.8 of each indenture.)

Governing Law

        Each indenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York, except that the subordination provisions contained in Sections 12.1 and 12.2 of the subordinated indenture will be governed by, and construed in accordance with, the laws of the State of New South Wales, Commonwealth of Australia. (Section 1.11 of each indenture.)

        Each indenture also provides that to the extent Westpac or any of its properties, assets or revenues may have or may 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 setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or 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 any debt security or either indenture, Westpac, to the extent permitted by law, will irrevocably and unconditionally waive, and agree not to plead or claim, any such immunity and will consent to such relief and enforcement. (Section 5.15 of each indenture.)

Consolidation, Merger or Sale of Assets

        The senior indenture and the subordinated indenture provide that Westpac may not merge or consolidate with or into any other corporation or other entity or sell, convey or transfer all or substantially all of Westpac's assets, unless:

Upon any such consolidation, merger or sale, the successor corporation formed by such consolidation or into which Westpac is merged or to which such sale is made shall succeed to and be substituted for Westpac under the indenture. (Section 7.1 of each indenture.)

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Concerning the Trustees

        Westpac may from time to time maintain credit facilities, and have other customary banking relationships with The Bank of New York Mellon, the trustee under both the senior indenture and the subordinated indenture.

Consent to Service of Process

        Each indenture provides that Westpac will irrevocably designate our Counsel, Legal Services, located in our New York branch, as our authorized agent for service of process in any legal action or proceeding against us with respect to Westpac's obligations under such indenture or the debt securities instituted in any federal or state court in the Borough of Manhattan, The City of New York, New York and will irrevocably submit to the non-exclusive jurisdiction of such courts in respect of any such legal action or proceeding. (Section 1.14 of each indenture.)

Australian Regulatory Restrictions on Payments by Westpac

        Nothing in either indenture affects the applicability of:

(Section 5.15 of each indenture.)

Provisions Applicable Only to Subordinated Debt Securities

        In a winding up of Westpac, the rights and claims of holders of the subordinated debt securities and the trustee (other than with respect to the costs, charges, expenses and liabilities incurred by the trustee) are subordinated and junior in right of payment to the claims of Westpac's senior creditors (as defined below). Winding up means, any procedure whereby Westpac may be wound up, dissolved or cease to exist as a body corporate and whether brought or instigated by the trustee, a holder of the subordinated debt securities or any other person, but excludes any transaction permitted as described under "—Consolidation, Merger or Sale of Assets." Senior creditors means all of Westpac's creditors (present and future) including its depositors:

(Section 12.2 of the subordinated indenture.)

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        Prior to the commencement of a winding-up of Westpac:

        Solvent when used in connection with the payment of any installment of principal or interest on the subordinated debt securities means that (i) Westpac is able to pay its debts as they fall due and (ii) its assets exceed its liabilities. Assets means Westpac's total consolidated gross assets as shown by its latest published audited accounts but adjusted for events subsequent to the date of such accounts in such manner and to such extent as the directors, Westpac's auditors, or as the case may be, Westpac's liquidator may determine to be appropriate. Liabilities means Westpac's total consolidated gross liabilities as shown by its latest public audited accounts but adjusted for events subsequent to the date of such accounts in such manner and to such extent as the directors, Westpac's auditors, or as the case may be, Westpac's liquidator may determine to be appropriate.

(Sections 12.1 and 12.2 of the subordinated indenture.)

        After the commencement of a winding-up of Westpac no amount shall be payable to holders of subordinated debt securities in respect of the subordinated debt securities and under the subordinated indenture until the claims of Westpac's senior creditors have been satisfied in full and the rights of the holders of the subordinated debt securities under the subordinated indenture and under the subordinated debt securities to receive any amounts in respect of the subordinated debt securities and under the subordinated indenture in the winding up of Westpac shall be held by the trustee upon trust:

(Section 12.2 of the subordinated indenture.)

        Other provisions applicable to subordinated debt securities will be described in the applicable prospectus supplement or term sheet.

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TAXATION

        The following statements with respect to taxation are only general summaries. Prospective purchasers of debt securities should consult their own tax advisors concerning the consequences, in their particular circumstances, under United States federal and Australian tax law, and the laws of any other taxing jurisdiction, of the purchase, ownership and disposition of debt securities.

Australian Taxation

        The following is a summary of the material Australian tax consequences of the purchase, ownership and disposition of debt securities to holders who are not residents of Australia for Australian tax purposes and who purchase debt securities upon original issuance at the stated offering price and hold the debt securities as capital assets. The statements of law or legal conclusions in this summary are based on Australian law as in effect on the date of this prospectus, which is subject to change, possibly with retroactive effect.

        Each prospective investor should consult his or her own tax advisors concerning the tax consequences, in their particular circumstances, of the purchase, ownership and disposition of debt securities.

        Interest (or amounts in the nature of interest) paid by a resident of Australia, such as Westpac, to a non-resident of Australia is ordinarily subject to interest withholding tax at the rate of 10% of the gross amount of the interest. An exemption from this withholding tax is available under section 128F of the Income Tax Assessment Act 1936 as amended, which we refer to as the Tax Act, in respect of interest payable on debt securities where the issue of the debt securities satisfies a public offer test (as to which see below).

        Any of the debt securities which, at the time of issue, Westpac knew or had reasonable grounds to suspect were being or would later be acquired directly or indirectly by an associate (as defined in Section 128F of the Tax Act) of Westpac, other than one acting in the capacity of a dealer, manager or underwriter in relation to the placement of the debt securities or in the capacity of a clearing house, custodian, funds manager or a responsible entity of a registered managed investment scheme under the Australian Corporation Act, would not qualify for this exemption, nor would interest qualify for this exemption if paid to an associate of Westpac who, at the time of payment, Westpac knows or has reasonable grounds to suspect is such an associate other than one acting in the capacity of a clearing house, paying agent, custodian, funds manager or a responsible entity of a registered managed investment scheme under the Australian Corporation Act.

        There are five principal methods of satisfying the public offer test, the purpose of which is to ensure that lenders or investors in capital markets are aware that the securities are being offered for issue or subscription. In summary, the five methods are: offers to 10 or more unrelated financiers or securities dealers; offers to 100 or more investors whom it would be reasonable to regard as either having acquired debt securities in the past or being likely to be interested in acquiring securities (such as debt securities); offers of securities which are listed on certain stock exchanges; offers that result from information available publicly in electronic form or other means that are used by financial markets for dealing in debt securities; and offers to dealers, managers or underwriters who in turn offer the securities for sale within 30 days by one of the preceding methods. In addition, the issue of a global bond or note and the offer of interests in the global bond or note by one of these methods can generally satisfy the public offer test.

        Westpac proposes that issues of debt securities would be made in a manner which would satisfy the public offer test (or the requirements for exemption in respect of a global bond or note) and would

18



otherwise meet the requirements for exemption from withholding tax under section 128F of the Tax Act.

        If the requirements for exemption under section 128F of the Tax Act are met with respect to debt securities, payments of principal, interest and any premium made to a holder of debt securities who is not a resident of Australia for Australian tax purposes and who does not derive the interest in carrying on business at or through a permanent establishment in Australia or who is an Australia resident deriving the interest in carrying on a business through a permanent establishment outside Australia, will not be subject to Australian income or withholding taxes.

        A holder of debt securities who is not a resident of Australia for Australian tax purposes and who does not hold the debt securities in the course of carrying on business at or through a permanent establishment in Australia will not be subject to Australian income tax or capital gains tax on any gains or profits made on the sale or retirement of debt securities, provided such gains or profits do not have an Australian source. A gain arising on the sale of debt securities by a non-Australian resident holder, to another non-Australian resident where the sale and all negotiations for and documentation of the sale are conducted and executed outside Australia, would not be regarded as having an Australian source, nor would a gain on retirement of a debt security held by a non-Australian resident outside Australia otherwise than in carrying on business in Australia be regarded as having an Australian source.

        The applicable prospectus supplement or term sheet will contain a discussion of any special Australian tax consequences not discussed herein applicable to the debt securities being offered thereby, such as the special rules applicable to the sale to an Australian resident of debt securities which were issued at a discount to the amount payable upon redemption or which require the payment of a premium on redemption.

        Under current Australian law, there are no gift, estate or other inheritance taxes or duties. No stamp, issue, registration or similar taxes are payable in Australia in connection with the issue of debt securities. No Australian stamp duty should be payable on a transfer of, or an agreement to transfer, debt securities if the transfer or agreement is executed outside Australia.

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PLAN OF DISTRIBUTION

        We may sell the debt securities from time to time in one or more transactions. We may sell securities pursuant to the registration statement to or through agents, underwriters, dealers or other third parties or directly to one or more purchasers or through a combination of any of these methods. In some cases, we or the dealers acting with us or on behalf of us may also purchase securities and reoffer them to the public. We may also offer and sell, or agree to deliver, securities pursuant to, or in connection with, any option agreement or other contractual arrangement.

        Agents whom we designate may solicit offers to purchase the securities.

        We may use an underwriter or underwriters in the offer or sale of the securities.

        We may use a dealer to sell the securities.

        We may solicit directly offers to purchase the securities, and we may directly sell the securities to institutional or other investors. We will describe the terms of direct sales in the applicable prospectus supplement or term sheet.

        We may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) of the Securities Act.

        We may indemnify agents, underwriters and dealers against certain liabilities, including liabilities under the Securities Act. Agents, underwriters and dealers, or their affiliates, may be customers of, engage in transactions with or perform services for us, in the ordinary course of business.

        We may authorize agents and underwriters to solicit offers by certain institutions to purchase the securities at the public offering price under delayed delivery contracts.

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        Until the distribution of the securities is completed, rules of the SEC may limit the ability of underwriters and other participants in the offering to bid for and purchase the securities. As an exception to these rules, the underwriters in certain circumstances are permitted to engage in certain transactions that stabilize the price of the securities. Such transactions consist of bids or purchases for the purpose of pegging, fixing or maintaining the price of the securities. If the underwriters create a short position in the securities in connection with the offering by selling more securities than are set forth on the cover page of the applicable prospectus supplement or in the term sheet, the underwriters may reduce that short position by purchasing securities in the open market. The underwriters also may impose a penalty bid on certain underwriters. This means that if the underwriters purchase the securities in the open market to reduce the underwriters' short position or to stabilize the price of the securities, they may reclaim the amount of the selling concession from the underwriters who sold those securities as part of the offering. In general, purchases of a security for the purpose of stabilization or to reduce a short position could cause the price of the security to be higher than it might be in the absence of such purchases. The imposition of a penalty bid might also have an effect on the price of a security to the extent that it were to discourage resales of the security.

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WHERE YOU CAN FIND MORE INFORMATION

        We file annual and other reports and other information with the SEC under the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act. This information may be read and copied at the Public Reference Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of these public reference facilities. The SEC maintains an Internet site, http://www.sec.gov , which contains reports, proxy and information statements and other information regarding issuers that are subject to the SEC's reporting requirements.

        You may request a copy of any filings (excluding exhibits) referred to above and in "Incorporation of Information We File with the SEC" at no cost by contacting us at the following address: Westpac Banking Corporation, New York Branch, 575 Fifth Avenue, 39th Floor, New York, New York 10017-2422, Attention: Senior Vice President and Chief Operating Officer. Telephone requests may be directed to such person at (212) 551-1905.

        This prospectus is part of a registration statement that we have filed with the SEC relating to the debt securities to be offered. This prospectus does not contain all of the information we have included in the registration statement and the accompanying exhibits and schedules in accordance with the rules and regulations of the SEC, and we refer you to the omitted information. The statements this prospectus makes pertaining to the content of any contract, agreement or other document that is an exhibit to the registration statement necessarily are summaries of their material provisions and do not describe all exceptions and qualifications contained in those contracts, agreements or documents. You should read those contracts, agreements or documents for information that may be important to you. The registration statement, exhibits and schedules are available at the SEC's Public Reference Room or through its Internet site.


INCORPORATION OF INFORMATION WE FILE WITH THE SEC

        The SEC allows us to incorporate by reference the information we file with them, which means:

        We incorporate by reference the documents listed below which were filed with the SEC under the Exchange Act:

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        We also incorporate by reference each of the following documents that we will file with the SEC after the date of this prospectus until this offering is completed:

        You should assume that the information appearing in this prospectus is accurate as of the date of this prospectus only. Our business, financial condition and results of operations may have changed since that date.

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ENFORCEABILITY OF FOREIGN JUDGMENTS IN AUSTRALIA

        Westpac is a company incorporated in Australia under the Australian Corporations Act and registered in New South Wales, having its registered office at Level 20, Westpac Place, 275 Kent Street, Sydney, New South Wales, Australia, 2000. In order to enforce a final, unsatisfied and conclusive judgment for the payment of a fixed or readily calculable sum of money rendered by any New York State or United States federal court having jurisdiction under its own domestic laws, and within whose jurisdiction Westpac was carrying on business at the time of commencement of the proceedings in which such judgment was rendered, with respect to any liability of Westpac with respect to any securities, it is necessary for the judgment creditor to bring separate proceedings as a new cause of action based on such judgment in the courts of competent jurisdiction of New South Wales or Australia against Westpac. Those courts could reasonably be expected in the circumstances to give conclusive effect to such judgment for the purpose of the proceedings. Westpac has expressly submitted to the jurisdiction of New York State and United States federal courts sitting in The City of New York for the purpose of any suit, action or proceedings arising out of the offering and sale of any securities. We have appointed our Senior Vice President & Chief Operating Officer, 575 Fifth Avenue, 39th Floor, New York, New York 10017-2422 as our agent in the United States upon whom process may be served in any such action.

        All of the directors and executive officers of Westpac, and the independent accountants named in this prospectus, reside outside the United States. Substantially all or a substantial portion of the assets of all or many of such persons are located outside the United States. As a result, it may not be possible for holders of securities to effect service of process within the United States upon such persons or to enforce against them judgments obtained in United States courts predicated upon the civil liability provisions of federal securities laws of the United States. Westpac has been advised by its Australian counsel, that there is doubt as to the enforceability in Australia, in original actions or in actions for enforcement of judgments of United States courts, of civil liabilities predicated upon the federal securities laws of the United States.


CURRENCY OF PRESENTATION AND EXCHANGE RATES

        We publish our consolidated financial statements in Australian dollars.

        The following table sets forth, for Westpac's fiscal years indicated, the high, low, average and period-end noon buying rates in New York City for cable transfers of Australian dollars as certified for customs purposes for the Federal Reserve Bank of New York, expressed in US dollars per A$1.00. Westpac's fiscal year ends on September 30 of each year.

Fiscal Year
  At Period End   Average Rate(1)   High   Low  

2003

    0.6797     0.6167     0.6823     0.5422  

2004

    0.7244     0.7287     0.7979     0.6395  

2005

    0.7643     0.7685     0.7974     0.7207  

2006

    0.7461     0.7473     0.7781     0.7056  

2007

    0.8855     0.8163     0.8855     0.7434  

2008(2)

    0.8563     0.9151     0.9797     0.8553  

(1)
The average of the noon buying rates on the last day of each month or portion thereof during the period.

(2)
Through August 28, 2008.

        Regulations in Australia restrict or prohibit payments, transactions and dealings with assets having a proscribed connection with certain countries or named individuals or entities subject to international sanctions or associated with terrorism.

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VALIDITY OF SECURITIES

        Debevoise & Plimpton LLP, our US counsel, will pass on the validity of the debt securities described in this prospectus. Grant Patrick Dillon Rennie, Counsel and Head of Legal Group Treasury at Westpac, will pass on the validity of the debt securities with respect to Australian law. Debevoise & Plimpton LLP may rely on the opinion of Grant Patrick Dillon Rennie on matters of Australian law.


EXPERTS

        The financial statements and management's assessment of the effectiveness of internal control over financial reporting (which is included in Management's Report on Internal Control Over Financial Reporting), incorporated in this prospectus by reference to the Annual Report on Form 20-F of Westpac Banking Corporation for the year ended September 30, 2007, have been so incorporated in reliance on the report of PricewaterhouseCoopers, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting. PricewaterhouseCoopers is a member of the Institute of Chartered Accountants in Australia.


LIMITATION ON INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM'S LIABILITY

        The liability of PricewaterhouseCoopers (an Australian partnership which we refer to as PwC Australia) with respect to claims arising out of its audit reports described under "Independent Registered Public Accounting Firm" is subject to the limitations set forth in the Professional Standards Act 1994 of New South Wales, Australia, which we refer to as the Professional Standards Act, and The Institute of Chartered Accountants in Australia (NSW) Scheme adopted by The Institute of Chartered Accountants in Australia and approved by the New South Wales Professional Standards Council pursuant to the Professional Standards Act, which we refer to as the NSW Accountants Scheme, or, in relation to matters occurring prior to October 7, 2007, the predecessor scheme. The Professional Standards Act and the NSW Accountants Scheme may limit the liability of PwC Australia for damages with respect to certain civil claims arising in, or governed by the laws of, New South Wales directly or vicariously from anything done or omitted in the performance of its professional services to us, including, without limitation, its audits of our financial statements, to the lesser of (in the case of audit services) ten times the reasonable charge for the service provided and a maximum liability for audit work of A$75 million or, in relation to matters occurring prior to October 7, 2007, A$20 million. The limit does not apply to claims for breach of trust, fraud or dishonesty.

        In addition there is equivalent professional standards legislation in place in each state and territory in Australia and amendments have been made to a number of Australian federal statutes to limit liability under those statutes to the same extent as liability is limited under state and territory laws by professional standards legislation.

        These limitations of liability may limit recovery upon the enforcement in Australian courts of any judgment under US or other foreign laws rendered against PwC Australia based on or related to its audit report on our financial statements. Substantially all of PwC Australia's assets are located in Australia. However, the Professional Standards Act and the NSW Accountants Scheme have not been subject to judicial consideration and therefore how the limitation will be applied by the courts and the effect of the limitation on the enforcement of foreign judgments are untested.

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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 8.    Indemnification of Directors and Officers

        Except as hereinafter set forth, there is no provision in Westpac's constitution or any contract, arrangement or statute under which any director or officer of Westpac is insured or indemnified in any manner against any liability that he or she may incur in his or her capacity as such.

        Under the constitution, Westpac must indemnify, unless the indemnity is forbidden or made void by statute, the directors and company secretaries of Westpac and each of its related bodies corporate (except those listed on a recognized stock exchange), each of its employees and those of its subsidiaries (except those listed on a recognized stock exchange) and each person acting as a responsible manager under an Australian financial services license of any of Westpac's wholly-owned subsidiaries against:

    every liability incurred by each such person in his or her capacity as director, secretary, employee, or responsible manager, as the case may be; and

    all legal costs incurred in defending or resisting (or otherwise in connection with) proceedings, whether civil or criminal or of an administrative or investigatory nature, in which the person becomes involved because of that capacity.

        In addition, Westpac has entered into a deed of access and indemnity with each of its directors, which includes indemnification in identical terms to that provided in its constitution.

        Westpac executed a deed poll providing indemnification equivalent to that provided under the constitution as described above to:

    those employees who act from time to time as responsible managers under the Australian financial services licenses of Westpac or a number of its related bodies corporate; and

    employees from time to time of Westpac's related bodies corporate.

        The Group Secretary and General Counsel, from time to time, in accordance with a delegated authority, approves the provision of an indemnity to certain employees of Westpac serving as directors, company secretaries, responsible managers or other approved roles of non-Westpac companies at Westpac's request. These indemnities are in terms equivalent to that provided under the constitution.

Item 9.    Exhibits

        A list of Exhibits filed herewith is contained on the Index to Exhibits and is incorporated herein by reference.

Item 10.    Undertakings

    (a)
    Rule 415 Offering.

        The undersigned registrant hereby undertakes:

      (1)
      To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

      (i)
      To include any prospectus required by Section 10(a)(3) of the Securities Act;

      (ii)
      To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high

II-1


          end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;

        (iii)
        To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however, that paragraphs (a) (1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this registration statement, or contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

      (2)
      That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

      (3)
      To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

      (4)
      To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. on Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to this Registration Statement, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Rule 3-19 if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

      (5)
      That, for the purpose of determining liability under the Securities Act to any purchaser:

      (i)
      Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

      (ii)
      Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to

II-2


          be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

      (6)
      That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities:

        The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

        (i)
        Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

        (ii)
        Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

        (iii)
        The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

        (iv)
        Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
    (b)
    Filings Incorporating Subsequent Exchange Act Documents by Reference.

        The undersigned registrant hereby undertakes that, for purpose of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

    (c)
    SEC Position on Indemnification for Securities Act Liabilities

        Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

II-3



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, Westpac Banking Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in The City of New York, United States of America, on September 16, 2008.

    WESTPAC BANKING CORPORATION

 

 

By:

 

/s/ 
MANUELA ADL

Manuela Adl
Senior Vice President and
Chief Operating Officer

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

Name
 
Title
 
Date

 

 

 

 

 
*

Ted Evans
  Chairman   September 16, 2008


*

Elizabeth Bryan


 


Director


 


September 16, 2008

*

Gordon Cairns

 

Director

 

September 16, 2008

*

Carolyn Hewson

 

Director

 

September 16, 2008

*

Lindsay Maxsted

 

Director

 

September 16, 2008

*

Peter Wilson

 

Director

 

September 16, 2008

*

Gail Kelly

 

Managing Director and Chief
Executive Officer (Principal
Executive Officer)

 

September 16, 2008

II-4


Name
 
Title
 
Date

 

 

 

 

 
*

Philip Coffey
  Chief Financial Officer
(Principal Financial Officer)
  September 16, 2008


*

Peter King


 


General Manager Group
Finance (Principal Accounting
Officer)


 


September 16, 2008

*

Manuela Adl

 

Authorized Representative in
the United States

 

September 16, 2008

*By:

 

/s/  MANUELA ADL


Attorney-in-fact
       

II-5



EXHIBIT INDEX

Number
  Description
  1.1   Form of Underwriting Agreement for offering of senior debt securities*


 


1.2


 


Form of Underwriting Agreement for offering of subordinated debt securities*

 

3.1

 

Constitution of Westpac Banking Corporation (incorporated herein by reference to Exhibit 1 to our Form 6-K filed on December 18, 2007)

 

4.1

 

Senior Indenture, dated as of July 1, 1999, between Westpac Banking Corporation and The Bank of New York Mellon as successor to The Chase Manhattan Bank

 

4.2

 

Amended and Restated Subordinated Indenture, dated as of May 15, 2003, between Westpac Banking Corporation and The Bank of New York Mellon as successor to JPMorgan Chase Bank

 

5.1

 

Opinion of Debevoise & Plimpton LLP

 

5.2

 

Opinion of Grant Patrick Dillon Rennie

 

23.1

 

Consent of PricewaterhouseCoopers

 

23.2

 

Consent of Debevoise & Plimpton LLP (included in Exhibit 5.1)

 

23.3

 

Consent of Grant Patrick Dillon Rennie (included in Exhibit 5.2)

 

24.1

 

Power of Attorney of directors of Westpac Banking Corporation

 

25.1

 

Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York Mellon, as trustee under the Senior Indenture

 

25.2

 

Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York Mellon, as trustee under the Subordinated Indenture.

*
To be filed subsequently under cover of Form 6-K.

II-6




QuickLinks

TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
FORWARD-LOOKING STATEMENTS
WESTPAC BANKING CORPORATION
USE OF PROCEEDS
DESCRIPTION OF THE DEBT SECURITIES
TAXATION
PLAN OF DISTRIBUTION
WHERE YOU CAN FIND MORE INFORMATION
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
ENFORCEABILITY OF FOREIGN JUDGMENTS IN AUSTRALIA
CURRENCY OF PRESENTATION AND EXCHANGE RATES
VALIDITY OF SECURITIES
EXPERTS
LIMITATION ON INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM'S LIABILITY
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
SIGNATURES
EXHIBIT INDEX

Exhibit 4.1

 

 

[Execution Copy]

 

SENIOR INDENTURE

 

between

 

WESTPAC BANKING CORPORATION

 

and

 

THE CHASE MANHATTAN BANK

 

Dated as of July 1, 1999

 

Providing for Issuance of
Debt Securities in Series

 

 



 

Reconciliation and tie between Senior Indenture, dated as of July 1, 1999, and the Trust Indenture Act of 1939, as amended.

 

Trust Indenture Act
of 1939 Section

 

Senior Indenture Section

310

(a)  (1)

 

6.11

 

(a)  (2)

 

6.11

 

(a)  (3)

 

TIA

 

(a)  (4)

 

Not Applicable

 

(b)

 

6.9; 6.11; TIA

 

 

 

 

311

(a)

 

TIA

 

(b)

 

TIA

 

 

 

 

312

(a)

 

6.7

 

(b)

 

TIA

 

(c)

 

TIA

 

 

 

 

313

(a)

 

6.1.; TIA

 

(b)

 

TIA

 

(c)

 

6.6; TIA

 

(d)

 

6.6

 

 

 

 

314

(a)

 

9.6; 9.7; TIA

 

(b)

 

Not Applicable

 

(c)  (1)

 

1.2

 

(c)  (2)

 

1.2

 

(c)  (3)

 

Not Applicable

 

(d)

 

Not Applicable

 

(e)

 

1.2

 

(f)

 

TIA

 

 

 

 

315

(a)

 

TIA

 

(b)

 

6.5

 

(c)

 

6.1

 

(d)  (1)

 

TIA

 

(d)  (2)

 

TIA

 

(d)  (3)

 

TIA

 

(e)

 

TIA

 

 

 

 

316

(a)  (last sentence)

 

1.1

 

(a)  (1)  (A)

 

5.8

 

(a)  (1)  (B)

 

5.7

 

i



 

Trust Indenture Act
of 1939 Section

 

Senior Indenture Section

 

(b)

 

5.2; 5.10

 

(c)

 

TIA

 

 

 

 

317

(a)  (1)

 

5.3

 

(a)  (2)

 

5.4

 

(b)

 

9.3

 

 

 

 

318

(a)

 

1.11

 

(b)

 

TIA

 

(c)

 

1.11; TIA

 

This reconciliation and tie section does not constitute part of the Senior Indenture.

 

ii



 

Table of Contents

 

 

 

 

 

Page

 

 

 

 

 

 

 

ARTICLE I

 

 

 

 

 

 

 

 

 

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

 

 

 

 

 

 

Section 1.1.

 

Definitions

 

1

Section 1.2.

 

Compliance Certificates and Opinions

 

9

Section 1.3.

 

Form of Documents Delivered to Trustee

 

9

Section 1.4.

 

Acts of Holders

 

10

Section 1.5.

 

Notices, etc., to Trustee and Company

 

12

Section 1.6.

 

Notice to Holders; Waiver

 

12

Section 1.7.

 

Headings and Table of Contents

 

14

Section 1.8.

 

Successors and Assigns

 

14

Section 1.9.

 

Separability

 

14

Section 1.10.

 

Benefits of Indenture

 

14

Section 1.11.

 

Governing Law

 

14

Section 1.12.

 

Legal Holidays

 

14

Section 1.13.

 

No Recourse Against Others

 

15

Section 1.14.

 

Submission to Jurisdiction: Appointment of Agent for Service of Process

 

15

 

 

 

 

 

 

 

ARTICLE II

 

 

 

 

 

 

 

 

 

SECURITY FORMS

 

 

 

 

 

 

 

Section 2.1.

 

Forms Generally

 

16

Section 2.2.

 

Form of Trustee’s Certificate of Authentication

 

16

Section 2.3.

 

Securities in Global Form

 

17

Section 2.4.

 

Form of Legend for Securities in Global Form

 

17

 

 

 

 

 

 

 

ARTICLE III

 

 

 

 

 

 

 

 

 

THE SECURITIES

 

 

 

 

 

 

 

Section 3.1.

 

Amount Unlimited; Issuable in Series

 

18

Section 3.2.

 

Denominations

 

22

Section 3.3.

 

Execution, Authentication, Delivery and Dating

 

22

Section 3.4.

 

Temporary Securities

 

25

Section 3.5.

 

Registration, Transfer and Exchange

 

25

Section 3.6.

 

Replacement Securities

 

29

Section 3.7.

 

Payment of Interest; Interest Rights Preserved

 

30

 

iii



 

Section 3.8.

 

Persons Deemed Owners

 

32

Section 3.9.

 

Cancellation

 

33

Section 3.10.

 

Computation of Interest

 

33

Section 3.11.

 

Currency and Manner of Payment in Respect of Securities

 

33

Section 3.12.

 

Appointment and Resignation of Exchange Rate Agent

 

38

Section 3.13.

 

CUSIP Numbers

 

39

 

 

 

 

 

 

 

ARTICLE IV

 

 

 

 

 

 

 

 

 

SATISFACTION, DISCHARGE AND DEFEASANCE

 

 

 

 

 

 

 

Section 4.1.

 

Termination of Company’s Obligations Under the Indenture

 

39

Section 4.2.

 

Application of Trust Funds

 

41

Section 4.3.

 

Applicability of Defeasance Provisions; Company’s Option to Effect Defeasance or Covenant Defeasance

 

41

Section 4.4.

 

Defeasance and Discharge

 

41

Section 4.5.

 

Covenant Defeasance

 

42

Section 4.6.

 

Conditions to Defeasance or Covenant Defeasance

 

42

Section 4.7.

 

Deposited Money and Government Obligations to Be Held in Trust

 

44

Section 4.8.

 

Repayment to Company

 

45

Section 4.9.

 

Indemnity for Government Obligations

 

45

 

 

 

 

 

 

 

ARTICLE V

 

 

 

 

 

 

 

 

 

EVENTS OF DEFAULT AND REMEDIES

 

 

 

 

 

 

 

Section 5.1.

 

Events of Default

 

45

Section 5.2.

 

Acceleration; Rescission and Annulment

 

46

Section 5.3.

 

Collection of Indebtedness and Suits for Enforcement by Trustee

 

47

Section 5.4.

 

Trustee May File Proofs of Claim

 

48

Section 5.5.

 

Trustee May Enforce Claims Without Possession of Securities

 

48

Section 5.6.

 

Delay or Omission Not Waiver

 

48

Section 5.7.

 

Waiver of Past Events of Default

 

48

Section 5.8.

 

Control by Majority

 

49

Section 5.9.

 

Limitation on Suits by Holders

 

49

Section 5.10.

 

Rights of Holders to Receive Payment

 

50

Section 5.11.

 

Application of Money Collected

 

50

Section 5.12.

 

Restoration of Rights and Remedies

 

50

Section 5.13.

 

Rights and Remedies Cumulative

 

50

Section 5.14.

 

Waiver of Stay, Extension or Usury Laws

 

51

Section 5.15.

 

Waiver of Sovereign Immunity

 

51

 

iv



 

 

 

ARTICLE VI

 

 

 

 

 

 

 

 

 

THE TRUSTEE

 

 

 

 

 

 

 

Section 6.1.

 

Rights, Duties and Responsibilities of Trustee

 

52

Section 6.2.

 

Trustee May Hold Securities

 

53

Section 6.3.

 

Money Held in Trust

 

53

Section 6.4.

 

Trustee’s Disclaimer

 

53

Section 6.5.

 

Notice of Events of Default

 

54

Section 6.6.

 

Reports by Trustee to Holders

 

54

Section 6.7.

 

Security Holder Lists

 

54

Section 6.8.

 

Compensation and Indemnity

 

55

Section 6.9.

 

Replacement of Trustee

 

55

Section 6.10.

 

Acceptance of Appointment by Successor

 

57

Section 6.11.

 

Eligibility; Disqualification

 

58

Section 6.12.

 

Merger, Conversion, Consolidation or Succession to Business

 

59

Section 6.13.

 

Appointment of Authenticating Agent

 

59

Section 6.14.

 

Preferential Collection of Claims Against Company

 

61

 

 

 

 

 

 

 

ARTICLE VII

 

 

 

 

 

 

 

 

 

CONSOLIDATION, MERGER OR SALE BY THE COMPANY

 

 

 

 

 

 

 

Section 7.1.

 

Consolidation, Merger or Sale of Assets Permitted

 

61

 

 

 

 

 

 

 

ARTICLE VIII

 

 

 

 

 

 

 

 

 

SUPPLEMENTAL INDENTURES

 

 

 

 

 

 

 

Section 8.1.

 

Supplemental Indentures Without Consent of Holders

 

62

Section 8.2.

 

With Consent of Holders

 

63

Section 8.3.

 

Compliance with Trust Indenture Act

 

65

Section 8.4.

 

Execution of Supplemental Indentures

 

65

Section 8.5.

 

Effect of Supplemental Indentures

 

65

Section 8.6.

 

Reference in Securities to Supplemental Indentures

 

65

 

 

 

 

 

 

 

ARTICLE IX

 

 

 

 

 

 

 

 

 

COVENANTS

 

 

 

 

 

 

 

Section 9.1.

 

Payment of Principal, Premium, if any, and Interest

 

66

Section 9.2.

 

Maintenance of Office or Agency

 

66

Section 9.3.

 

Money for Securities to Be Held in Trust; Unclaimed Money

 

67

Section 9.4.

 

Corporate Existence

 

68

Section 9.5.

 

Insurance

 

68

 

v



 

Section 9.6.

 

Reports by the Company

 

69

Section 9.7.

 

Annual Review Certificate

 

69

Section 9.8.

 

Payment of Additional Amounts

 

69

Section 9.9.

 

Payment of Stamp Taxes

 

71

Section 9.10.

 

Indemnification of Judgment Currency

 

71

Section 9.11.

 

Waiver of Certain Covenants

 

71

 

 

 

 

 

 

 

ARTICLE X

 

 

 

 

 

 

 

 

 

REDEMPTION

 

 

 

 

 

 

 

Section 10.1.

 

Applicability of Article

 

71

Section 10.2.

 

Election to Redeem; Notice to Trustee

 

72

Section 10.3.

 

Selection of Securities to Be Redeemed

 

72

Section 10.4.

 

Notice of Redemption

 

73

Section 10.5.

 

Deposit of Redemption Price

 

74

Section 10.6.

 

Securities Payable on Redemption Date

 

74

Section 10.7.

 

Securities Redeemed in Part

 

75

Section 10.8.

 

Optional Redemption Due to Changes in Australian Tax Treatment

 

75

 

 

 

 

 

 

 

ARTICLE XI

 

 

 

 

 

 

 

 

 

SINKING FUNDS

 

 

 

 

 

 

 

Section 11.1.

 

Applicability of Article

 

76

Section 11.2.

 

Satisfaction of Sinking Fund Payments with Securities

 

76

Section 11.3.

 

Redemption of Securities for Sinking Fund

 

76

 

vi



 

SENIOR INDENTURE, dated as of July 1, 1999, between WESTPAC BANKING CORPORATION, a bank duly organized and existing under the laws of the State of New South Wales, Commonwealth of Australia (the “Company”) having its principal office at 60 Martin Place, Sydney, New South Wales 2000, Australia, and having an office in the city of New York at 335 Madison Avenue, New York, New York 10017, and The Chase Manhattan Bank, a New York banking corporation, as Trustee hereunder (the “Trustee”).

 

Recitals

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (“Securities”) to be issued in one or more series as herein provided.

 

All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of the Securities:

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION

 

Section 1.1.           Definitions .  (a)  For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(1)    the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(2)    all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 

(3)    all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles used in the preparation of the Company’s audited financial statements and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles at the date of such computation;

 

(4)    the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and

 

1



 

(5)    the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B or both”, not “A or B but not both”).

 

“Affiliate” of any specified Person means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person.  For purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Agent” means any Paying Agent or Registrar.

 

“Authenticating Agent” means any authenticating agent appointed by the Trustee pursuant to Section 6.13.

 

“Authorized Newspaper” means a newspaper of general circulation, in the official language of the country of publication or in the English language, customarily published on each Business Day whether or not published on Saturdays, Sundays or holidays.  Whenever successive publications in an Authorized Newspaper are required hereunder they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers.

 

“Authorized Officer” means the Company’s Chairman of the Board, its Managing Director, its Chief Financial Officer, its Group Executive, any General Manager, its Group Treasurer, its Group Financial Controller, any Senior Vice President or any Vice President or such officers of equivalent status as may be designated from time to time by the Company.

 

“Bearer Security” means any Security issued hereunder which is payable to bearer.

 

“Board” or “Board of Directors” means the Board of Directors of the Company, or any duly authorized committee thereof.

 

“Board Resolution” means a copy of a resolution of the Board of Directors, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, and delivered to the Trustee.

 

“Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or particular location are authorized or obligated by law or executive order to close.

 

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“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“Company” means the party named as the Company in the first paragraph of this Indenture until a successor shall have become such pursuant to the applicable provisions of this Indenture, and thereafter means such successors.

 

“Company Order” and “Company Request” mean, respectively, a written order or request signed in the name of the Company by an Authorized Officer.

 

“Corporate Trust Office” means the office of the Trustee in New York, New York at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 450 West 33rd Street, New York, New York 10001, Attention:  Capital Markets Fiduciary Services.

 

“currency unit”, for all purposes of this Indenture, shall include any composite currency.

 

“Depositary”, when used with respect to the Securities of or within any series issuable or issued in whole or in part in global form, means the Person designated as Depositary by the Company pursuant to Section 3.1 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter shall mean or include each Person which is then a Depositary hereunder, and if at any time there is more than one such Person, shall be a collective reference to such Persons.

 

“Dollar” or “$” means the coin or currency of the United States as at the time of payment is legal tender for the payment of public and private debts.

 

“Government Obligations” means securities which are (i) direct obligations of the United States or, if specified as contemplated by Section 3.1, the government which issued the currency in which the Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States or, if specified as contemplated by Section 3.1, such government which issued the foreign currency in which the Securities of such series are payable, for the payment of which the full faith and credit of the United States or such other government is pledged (whether by guaranty or otherwise), which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the

 

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amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation evidenced by such depositary receipt.

 

“Holder” means, with respect to a Bearer Security, a bearer thereof or of a coupon appertaining thereto and, with respect to a Registered Security, a person in whose name such Registered Security is registered on the Register.

 

“Indenture” means this Senior Indenture as originally executed or as amended or supplemented from time to time and shall include the forms and terms of particular series of Securities established as contemplated hereunder.

 

“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

 

“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

 

“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

“Officer” means any Authorized Officer, the President, any Executive Vice President, any Assistant Vice President, the Treasurer or the Secretary or Assistant Secretary of the Company.

 

“Officers’ Certificate” means a certificate signed by an Authorized Officer and which conforms to Section 1.2.

 

“Opinion of Counsel” means a written opinion of legal counsel, who may be (i) an attorney employed by the Company, (ii) Debevoise & Plimpton or (iii) other counsel designated by the Company who shall be reasonably acceptable to the Trustee.

 

“Original Issue Discount Security” means any Security which provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2.

 

“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(i)      Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

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(ii)     Securities, or portions thereof, for whose payment or redemption money or Government Obligations in the necessary amount (without reinvestment) has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provisions therefor satisfactory to the Trustee have been made;

 

(iii)    Securities, except to the extent provided in Sections 4.4 and 4.5, with respect to which the Company has effected defeasance and/or covenant defeasance as provided in Article IV; and

 

(iv)    Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

 

provided, however, that unless otherwise provided with respect to any Securities of any series pursuant to Section 3.1, in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver or are present at a meeting for quorum purposes hereunder, or whether sufficient funds are available for redemption or for any other purpose, and for the purpose of making the calculations required by Section 313 of the Trust Indenture Act, (w) the principal amount of any Original Issue Discount Securities that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 5.2, (x) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officers’ Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent, determined as of such date of original issuance, of the amount determined as provided in clause (w) above) of such Security, (y) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, and (z) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible

 

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Officer of the Trustee actually knows to be so owned shall be so disregarded.  Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

 

“Paying Agent” means any Person authorized by the Company to pay the principal of, premium, if any, or interest and any other payments on any Securities on behalf of the Company; provided that, in no event may a Paying Agent be a domiciliary of Commonwealth of Australia or a person acting through an office in Commonwealth of Australia.

 

“Periodic Offering” means an offering of Securities of a series from time to time the specific terms of which Securities, including, without limitation, the rate or rates of interest or formula for determining the rate or rates of interest thereon, if any, the Maturity thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.

 

“Person” means any individual, corporation, estate, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.

 

“Place of Payment”, when used with respect to the Securities of or within any series, means the place or places where the principal of, premium, if any, and interest and any other payments on such Securities are payable as specified as contemplated by Sections 3.1 and 9.2.

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture and the Securities.

 

“Redemption Price”, when used with respect to any Security to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to this Indenture and the Securities.

 

“Registered Security” means any Security issued hereunder and registered as to principal and interest in the Register.

 

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“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of or within any series means the date specified for that purpose as contemplated by Section 3.1, which date shall be, unless otherwise specified pursuant to Section 3.1, the fifteenth day preceding such Interest Payment Date, whether or not such day shall be a Business Day.

 

“Responsible Officer”, when used with respect to the Trustee, shall mean any Vice President (whether or not designated by a number or a word or words added before or after the title “Vice-President”), the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant Cashier, any Senior Trust Officer, any Trust Officer, any Assistant Trust Officer, the Controller, any Assistant Controller, or any officer of the Trustee customarily performing functions similar to those performed by the individuals who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

“Security” or “Securities” has the meaning stated in the first recital of this Indenture and more particularly means a Security or Securities of the Company issued, authenticated and delivered under this Indenture.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7.

 

“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or in a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Subsidiary” means any Person of which the Company at the time owns or controls, directly or indirectly, more than 50% of the shares of outstanding stock or other equity interests having general voting power under ordinary circumstances to elect a majority of the Board of Directors, managers or trustees, as the case may be, of such Person (irrespective of whether or not at the time stock of any other class or classes or other equity interests of such corporation shall have or might have voting power by reason of the happening of any contingency).

 

“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended and as in effect on the date of this Indenture, except as provided in Section 8.3.

 

“Trustee” means the party named as such in the first paragraph of this Indenture until a successor Trustee replaces it pursuant to the applicable provisions of this Indenture, and thereafter means such successor Trustee and if, at any time, there is more than one Trustee, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of that series.

 

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“United States” means, unless otherwise specified with respect to the Securities of any series as contemplated by Section 3.1, the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

“U.S. Person” means, unless otherwise specified with respect to the Securities of any series as contemplated by Section 3.1, an individual citizen or resident of the United States, a corporation created or organized in or under the laws of the United States, any State thereof or the District of Columbia, or a partnership, estate or trust treated as a domestic partnership, estate or trust for United States federal income tax purposes.

 

“Winding Up” means, any procedure whereby the Company may be wound up, dissolved or cease to exist as a body corporate and whether brought or instigated by the Trustee, a Holder or any other Person.

 

“Yield to Maturity” means the yield to maturity, calculated by the Company at the time of issuance of a series of Securities or, if applicable, at the most recent determination of interest on such series, in accordance with accepted financial practice.

 

(b)  The following terms shall have the meanings specified in the Sections referred to opposite such term below:

 

Term

 

Section

“Act”

 

1.4 (a)

“Additional Amount”

 

9.8 (a)

“Authorized Agent”

 

1.14

“Claims”

 

6.8(b)

“Component Currency”

 

3.11(h)

“Conversion Date”

 

3.11(d)

“Conversion Event”

 

3.11(h)

“Defaulted Interest”

 

3.7(b)

“Election Date”

 

3.11(h)

“Euro”

 

3.11(h)

“Event of Default”

 

5.1

“Exchange Rate Agent”

 

3.11(h)

“Exchange Rate Officers’ Certificate”

 

3.11(h)

“Expiration Date”

 

1.4(g)

“Foreign Currency”

 

3.11(h)

“Judgment Currency”

 

9.10

“Market Exchange Rate”

 

3.11(h)

“Register”

 

3.5

“Registrar”

 

3.5

“Specified Amount”

 

3.11(h)

“Specified Currency”

 

9.10

“Valuation Date”

 

3.11(c)

 

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Section 1.2.           Compliance Certificates and Opinions .  Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than pursuant to Section 9.7) shall include:

 

(1)    a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;

 

(2)    a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3)    a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her, as the case may be, to express an informed opinion as to whether or not such condition or covenant has been complied with; and

 

(4)    a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

Section 1.3.           Form of Documents Delivered to Trustee .  In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.  Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations as to such matters are erroneous.

 

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Any certificate or opinion of an Officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows that the certificate or opinions or representations as to such accounting matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 1.4.           Acts of Holders .  (a)  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive (subject to Section 6.1) in favor of the Trustee and the Company, if made in the manner provided in this Section.

 

(b)  Without limiting the generality of this Section, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depositary that is a Holder of a Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Security may provide its proxy or proxies to the beneficial owners of interests in any such Security through such Depositary’s standing instructions and customary practices.

 

(c)  The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof.  Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

(d)  The ownership of Bearer Securities may be proved by the production of such Bearer Securities or by a certificate executed by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit

 

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with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory.

 

The Trustee and the Company may assume that such ownership of any Bearer Security continues until (i) another such certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (ii) such Bearer Security is produced to the Trustee by some other Person, (iii) such Bearer Security is surrendered in exchange for a Registered Security or (iv) such Bearer Security is no longer outstanding.  The ownership of Bearer Securities may also be proved in any other manner which the Trustee deems sufficient.

 

(e)  The ownership of Registered Securities shall be proved by the Register.

 

(f)  Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

(g)  If the Company shall solicit from the Holders of any series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, fix in advance a record date for the determination of Holders of such series entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so.  If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of such series of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities of such series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities of such series shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless taken on or prior to the applicable Expiration Date (as defined below) by Holders of the requisite amount of Outstanding Securities of such series on such record date.  Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite amount of Outstanding Securities on the date such action is taken.  Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Notes in the manner set forth in Section 1.6.

 

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“Expiration Date” means, with respect to any record date set pursuant to this Section 1.4, the date designated by the Company, provided , that the Company may, from time to time, change the Expiration Date to any earlier or later day, but no such change shall be effective unless notice of the proposed new Expiration Date is given to the Trustee, and to each Holder of Securities of the applicable series in the manner set forth in Section 1.6 on or prior to the existing Expiration Date.  If an Expiration Date is not designated with respect to any record date pursuant to this Section, the Company shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.  Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

(h)  Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

 

(i)  The Company and the Trustee may make reasonable rules for action by or at a meeting of Holders.

 

Section 1.5.           Notices, etc., to Trustee and Company .  Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)    the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention:  Capital Markets Fiduciary Services, or

 

(2)    the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at Westpac Banking Corporation, 60 Martin Place, Sydney, New South Wales 2000, Australia or at any other address previously furnished in writing to the Trustee by the Company.

 

Section 1.6.           Notice to Holders; Waiver .  Where this Indenture provides for notice to Holders of any event, (i) if any of the Securities affected by such event are Registered Securities, such notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms of such Securities expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Register, within the time prescribed for the giving of such notice and, (ii) if any of the Securities affected by such event are Bearer Securities, notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms of such Bearer Securities expressly provided) if published once in

 

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an Authorized Newspaper in New York, New York, and in such other city or cities, if any, as may be specified as contemplated by Section 3.1.

 

In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein.  In any case where notice is given to Holders by publication, neither the failure to publish such notice, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.  Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

 

If by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice as provided above, then such notification as shall be made with the approval of the Trustee (such approval not to be unreasonably withheld) shall constitute a sufficient notification for every purpose hereunder.  If it is impossible or, in the opinion of the Trustee, impracticable to give any notice by publication in the manner herein required, then such publication in lieu thereof as shall be made with the approval of the Trustee shall constitute a sufficient publication of such notice.

 

In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder.  Neither failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders of Registered Securities as provided above.

 

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

 

In any case where the Company mails a notice to Holders, a copy must be sent to the Trustee and in any case where the Trustee mails a notice to Holders, copies must be sent to the Company.

 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

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Section 1.7.           Headings and Table of Contents .  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 1.8.           Successors and Assigns .  All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

 

Any act or proceeding that is required or permitted by any provision of this Indenture and that is authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any Person that shall at the time be the successor or assign of the Company.

 

Section 1.9.           Separability .  In case any provision of this Indenture or the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 1.10.         Benefits of Indenture .  Nothing in this Indenture or in the Securities, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 1.11.         Governing Law .  UNLESS OTHERWISE PROVIDED WITH RESPECT TO ANY SECURITIES OF ANY SERIES PURSUANT TO SECTION 3.1, THIS INDENTURE, THE SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.  This Indenture is subject to the Trust Indenture Act and if any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required by the Trust Indenture Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified, or to be excluded, as the case may be, whether or not such provision of this Indenture refers expressly to such provision of the Trust Indenture Act.

 

Section 1.12.         Legal Holidays .  Unless otherwise provided with respect to any Security or Securities pursuant to Section 3.1, in any case where any Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity or other payment date of any Security shall not be a Business Day at any Place of Payment, then, notwithstanding any other provision of this Indenture or any Security or coupon, payment of principal, premium, if any or interest or other payments need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on such date; provided

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that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity or other payment date, as the case may be.

 

In any case where any notice to Holders is required to be given by a certain date and such date shall not be a Business Day, then (notwithstanding any other provision of this Indenture or the Securities) such notice need not be made on such date, but may be made on the next succeeding day that is a Business Day with the same force and effect as if made on the date such notice was originally required to be made.

 

Section 1.13.         No Recourse Against Others .  No past, present or future director, officer, employee, agent, member, manager, trustee or stockholder, as such, of the Company or any successor Person shall have any liability for any obligations of the Company or any successor Person, either directly or through the Company or any successor Person, under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation, whether by virtue of any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise.  By accepting a Security, each Holder agrees to the provisions of this Section 1.13 and waives and releases all such liability.  Such waiver and release shall be part of the consideration for the issue of the Securities.

 

Section 1.14.         Submission to Jurisdiction: Appointment of Agent for Service of Process .  The Company hereby appoints the Vice President, Legal Services at the office of the Company located in The City of New York at the address set forth in the first paragraph of this Indenture as its authorized agent (the “Authorized Agent”) upon which process may be served in any legal action or proceeding against it with respect to its obligations under this Indenture or the Securities of any series (including, without limitation, any action based on or arising out of the United States federal securities law), instituted in any federal or state court in the Borough of Manhattan, The City of New York, by the Trustee or the Holder of any Security, and the Company hereby expressly accepts the jurisdiction of any such court in respect of any such action.  The Company hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding and any objection to such suit, action or proceeding whether on the grounds of venue, residence or domicile.  A final judgment (that is a judgment obtained after exhaustion of all appeals and expiration of all time to appeal) in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  The Vice President, Legal Services of the Company hereby accepts such appointment, which shall be irrevocable unless and until the appointment of a successor authorized agent for service of process, and such successor’s acceptance of such appointment, shall have occurred, and the Company and such Authorized Agents will take any and all actions, including the filing of any and all documents and instruments, that may be necessary to continue such appointment or appointments in full force and effect as aforesaid.  Service of process upon an Authorized Agent will be deemed, in every respect, effective service of process upon the Company.  Notwithstanding the foregoing, any action against the Company arising out of or based

 

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on any Security or this Indenture may also be instituted by the Holder of such Security in any court in the Commonwealth of Australia, and the Company hereby expressly accepts the jurisdiction of any such court in respect of any such action.

 

ARTICLE II

 

SECURITY FORMS

 

Section 2.1.           Forms Generally .  The Securities of each series and the coupons, if any, to be attached thereto shall be in substantially such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any applicable law, rule or regulation or with the rules or usage of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities and coupons, if any, as evidenced by their execution of the Securities and coupons, if any.  If temporary Securities of any series are issued as permitted by Section 3.4, the form thereof also shall be established as provided in the preceding sentence.  If the forms of Securities and coupons, if any, of any series are established by, or by action taken pursuant to, a Board Resolution, a copy of the Board Resolution together with an appropriate record of any such action taken pursuant thereto, including a copy of the approved form of Securities or coupons, if any, shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication and delivery of such Securities.

 

Unless otherwise specified as contemplated by Section 3.1, Bearer Securities shall have interest coupons attached.

 

The definitive Securities and coupons, if any, shall be typeset, printed, lithographed or engraved on steel engraved borders or may be produced in any other manner or medium, all as determined by the officers executing such Securities and coupons, if any, as evidenced by their execution of such Securities and coupons, if any.

 

Section 2.2.           Form of Trustee’s Certificate of Authentication .  Subject to Section 6.13, the Trustee’s certificate of authentication shall be in substantially the following form:

 

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This is one of the Securities of the series designated herein and issued under the within-mentioned Indenture.

 

 

 

The Chase Manhattan Bank, as Trustee

 

 

 

Dated:

 

 

 

By  

 

 

 

 

 

 

Authorized Signatory

 

Section 2.3.           Securities in Global Form .  If Securities of or within a series are issuable in whole or in part in global form, any such Security may provide that it shall represent the aggregate or specified amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced or increased to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby, shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.  Subject to the provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order.  Any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.2 hereof and need not be accompanied by an Opinion of Counsel.

 

The provisions of the last paragraph of Section 3.3 shall apply to any Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.3.

 

Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise specified as contemplated by Section 3.1, payment of principal of, premium, if any, and interest on any Security in permanent global form shall be made to the registered Holder thereof.

 

Section 2.4.           Form of Legend for Securities in Global Form .  Unless otherwise provided with respect to any Securities of any series pursuant to Section 3.1 or required by the Depositary, any Security of such series in global form authenticated and delivered hereunder shall bear a legend in substantially the following form:

 

THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE

 

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OF A DEPOSITARY.  UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS SECURITY WILL BE IN GLOBAL FORM, SUBJECT TO THE FOREGOING.

 

ARTICLE III

 

THE SECURITIES

 

Section 3.1.           Amount Unlimited; Issuable in Series .  (a)  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.  The Securities may be issued from time to time in one or more series.

 

(b)  The following matters shall be established with respect to each series of Securities issued hereunder:  (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or determined in the manner provided, in an Officers’ Certificate or (iii) in one or more indentures supplemental hereto:

 

(1)          the title of the Securities of the series (which title shall distinguish the Securities of the series from all other series of Securities);

 

(2)          any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (which limit shall not pertain to Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6, or 10.7);

 

(3)          the date or dates on which the principal of and premium, if any, on the Securities of the series is payable or the method of determination and/or extension of such date or dates; and the amount or amounts of such principal and premium, if any, payments or the method of determination thereof;

 

(4)          the rate or rates at which the Securities of the series shall bear interest, if any, or the method of calculating and/or resetting such rate or rates of interest, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, the Interest Payment Dates on which

 

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any such interest shall be payable and, with respect to Registered Securities, the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date;

 

(5)          the place or places where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable;

 

(6)          the period or periods within which, the price or prices at which, the currency or currencies (including currency units) in which, and the other terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than as provided in Section 10.3, the manner in which the particular Securities of such series (if less than all Securities of such series are to be redeemed) are to be selected for redemption;

 

(7)          the right, if any, to extend the interest payment periods and any conditions to the payment or resumption of payment of interest before, during or after any such extension;

 

(8)          the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the other terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

(9)          if other than denominations of $1,000 and any integral multiple thereof, (if Registered Securities), and if other than the denomination of $5,000 and any integral multiple thereof, (if Bearer Securities), the denominations in which Securities of the series shall be issuable;

 

(10)        if other than Dollars, the currency or currencies (including currency unit or units) in which the principal of, premium, if any, and interest, if any, or other payments, if any, on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated, and the particular provisions applicable thereto in accordance with, in addition to, or in lieu of the provisions of Section 3.11;

 

(11)        if the payments of principal of, or premium, if any, or interest, if any, or other payments, if any, on the Securities of the series are to be made, at the election of the Company or a Holder, in a currency or currencies (including currency unit or units) other than that in which such Securities are denominated or designated to be payable, the currency or currencies (including currency unit or units) in which such payments are to be made, the terms and conditions of such payments and the manner in which the exchange rate with respect to such payments shall be determined, and the particular provisions applicable thereto in accordance with, in addition to, or in lieu of the provisions of Section 3.11;

 

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(12)        if the amount of payments of principal of, or premium, if any, interest, if any, or other payments, if any, on the Securities of the series shall be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on the price of one or more commodities, derivatives or securities; one or more securities, derivatives or commodities exchange indices or other indices; a currency or currencies (including currency unit or units) other than that in which the Securities of the series are denominated or designated to be payable; or any other variable or the relationship between any variables or combination of variables), the index, formula or other method by which such amounts shall be determined;

 

(13)        if other than the principal amount thereof, the portion of the principal amount of such Securities of the series or other amount which shall be payable upon declaration of acceleration thereof pursuant to Section 5.2 or the method by which such portion or amount shall be determined;

 

(14)        if other than as provided in Section 3.7, the Person to whom any interest on any Registered Security of the series shall be payable and the manner in which, or the Person to whom, any interest on any Bearer Securities of the series shall be payable;

 

(15)        if the principal amount payable at the Maturity of any Securities of the series will not be determinable as of one or more dates prior to Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date hereunder or thereunder, or, if other than as provided in the definition of the term “Outstanding”, which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);

 

(16)        provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

 

(17)        any deletions from, modifications of or additions to the Events of Default set forth in Section 5.1 or covenants of the Company set forth in Article IX pertaining to the Securities of the series;

 

(18)        whether Securities of the series shall be issuable as Registered Securities or Bearer Securities (with or without interest coupons), or both, and any restrictions applicable to the offering, sale or delivery of Bearer Securities and, if other than as provided in Section 3.5, the terms upon which Bearer Securities of a series may be exchanged for Registered Securities of the same series and vice versa;

 

(19)        the date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;

 

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(20)        the forms of the Securities and coupons, if any, of the series;

 

(21)        the exclusion of Sections 4.3, 4.4, 4.5, 4.6 or any of them, with respect to the Securities of or within the series; or the applicability, if any, to the Securities of or within the series of such means of defeasance or covenant defeasance other than those provided in Sections 4.4 and 4.5 as may be specified for the Securities and coupons, if any, of such series, and whether, for the purpose of any defeasance or covenant defeasance pursuant to Section 4.4 or 4.5 or otherwise, the term “Government Obligations” shall include obligations referred to in the definition of such term which are not obligations of the United States or an agency or instrumentality of the United States;

 

(22)        if other than the Trustee, the identity of the Registrar and any Paying Agent;

 

(23)        any terms which may be related to warrants issued by the Company in connection with, or for the purchase of, Securities of such series, including whether and under what circumstances the Securities of any series may be used toward the exercise price of any such warrants;

 

(24)        the designation of the initial Exchange Rate Agent, if any;

 

(25)        if the Securities of the series shall be issued in whole or in part in global form, (i) the Depositary for such global Securities, (ii) the form of any legend in addition to or in lieu of that in Section 2.4 which shall be borne by such global Securities, (iii) whether beneficial owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities of such series and of like tenor of any authorized form and denomination, and (iv) if other than as provided in Section 3.5, the circumstances under which any such exchange may occur;

 

(26)        if the Securities of the series will be governed by, and the extent to which such Securities will be governed by, any law other than the laws of the state of New York; and

 

(27)        any other terms of the series, including any terms which may be required by or advisable under the laws or regulations of the United States or advisable (as determined by the Company) in connection with the marketing of Securities of the series.

 

(c)  The terms applicable to the Securities of any one series and coupons, if any, appertaining to any Bearer Securities of such series need not be identical but may vary as may be provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or determined in the manner provided, in the related Officers’ Certificate or (iii) in an indenture supplemental hereto.  All Securities of any one series need not be issued at the same time and, unless otherwise

 

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provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.

 

(d)  If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of such Board Resolution shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of the Securities of such series, and an appropriate record of any action taken pursuant thereto in connection with the issuance of any Securities of such series shall be delivered to the Trustee prior to the authentication and delivery thereof.

 

Section 3.2.           Denominations .  Unless otherwise provided as contemplated by Section 3.1, any Registered Securities of a series shall be issuable in denominations of $1,000 and any integral multiple thereof and any Bearer Securities of a series shall be issuable in the denomination of $5,000 and any integral multiple thereof.

 

Section 3.3.           Execution, Authentication, Delivery and Dating .  Securities shall be executed on behalf of the Company by an Authorized Officer. The signature of such officer on the Securities may be manual or facsimile.  The coupons, if any, of Bearer Securities shall bear the facsimile signature of an Authorized Officer.

 

Securities and coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to be officers or to hold such offices prior to the authentication and delivery of such Securities or were not officers or did not hold such offices at the date of such Securities.

 

At any time and from time to time, the Company may deliver Securities, together with any coupons appertaining thereto, of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with such other procedures (including, without limitation, the receipt by the Trustee of oral or electronic instructions from the Company or its duly authorized agents, promptly confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series.

 

If the form or terms of the Securities of a series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 315(a) through (d) of the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel substantially to the effect that,

 

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(1)    if the forms of such Securities and any coupons have been established by or pursuant to a Board Resolution as permitted by Section 2.1, such forms have been established in conformity with the provisions of this Indenture;

 

(2)    if the terms of such Securities and any coupons have been established by or pursuant to a Board Resolution as permitted by Section 3.1, such terms have been, or in the case of Securities of a series offered in a Periodic Offering, will be, established in conformity with the provisions of this Indenture, subject in the case of Securities offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel, and all conditions precedent to the authentication and delivery of the Securities and coupons have been complied with; and

 

(3)    such Securities together with any coupons appertaining thereto, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles and except further as may be limited by or subject to certain exceptions and qualifications specified in such Opinion of Counsel, including in the case of any Securities denominated in a Foreign Currency, (A) requirements that a claim with respect to any Securities denominated other than in Dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States.

 

Notwithstanding that such form or terms have been so established, the Trustee shall have the right to decline to authenticate such Securities if, in the written opinion of counsel to the Trustee (which counsel may be an employee of the Trustee) reasonably acceptable to the Company, the issue of such Securities pursuant to this Indenture will adversely affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.  Notwithstanding the generality of the foregoing, the Trustee will not be required to authenticate Securities denominated in a Foreign Currency if the Trustee reasonably believes that it would be unable to perform its duties with respect to such Securities.

 

Notwithstanding the provisions of Section 3.1 and of the two preceding paragraphs, if all of the Securities of any series are not to be issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise required pursuant to the two preceding paragraphs in connection with the authentication of each Security of such series if such documents, with appropriate modifications to cover such future issuances, are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

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With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable, in connection with the first authentication of Securities of such series.

 

If the Company shall establish pursuant to Section 3.1 that the Securities of a series are to be issued in whole or in part in global form, then, unless otherwise provided with respect to such Securities pursuant to Section 3.1, the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more Securities in global form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by such Security or Securities in global form, (ii) shall be registered, if a Registered Security, in the name of the Depositary for such Security or Securities in global form or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear the legend set forth in Section 2.4.

 

Unless otherwise established pursuant to Section 3.1, each Depositary designated pursuant to Section 3.1 for a Registered Security in global form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.  Neither the Company nor the Trustee shall have any responsibility to determine if the Depositary is so registered.

 

Each Depositary shall enter into an agreement with the Trustee governing the respective duties and rights of such Depositary and the Trustee with regard to Securities issued in global form.

 

Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 3.1.

 

No Security or coupon appertaining thereto shall be entitled to any benefits under this Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of one of the authorized signatories of the Trustee or an Authenticating Agent and no coupon shall be valid until the Security to which it appertains has been so authenticated.  Such signature upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered under this Indenture and is entitled to the benefits of this Indenture.  Except as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled.

 

Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.9 together

 

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with a written statement (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to the benefits of this Indenture.

 

Section 3.4.           Temporary Securities .  Pending the preparation of definitive Securities of any series, the Company may execute and, upon Company Order, the Trustee shall authenticate and deliver temporary Securities of such series which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor and form, with or without coupons, of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities and coupons, if any.  In the case of Securities of any series, all or a portion of such temporary Securities may be in global form.

 

Except in the case of temporary Securities in global form, each of which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay.  After preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company pursuant to Section 9.2 in a Place of Payment for such series, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that no definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security unless the Trustee shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form approved in or pursuant to the Board Resolutions relating thereto and such delivery shall occur only outside the United States.  Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series except as otherwise specified as contemplated by Section 3.1.

 

Section 3.5.           Registration, Transfer and Exchange .  The Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency to be maintained by the Company in accordance with Section 9.2 in a Place of Payment or in such other place or medium as may be specified pursuant to Section 3.1 a register (the “Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and the registration of transfers of Registered Securities.  The Register shall be in written form or any other form capable of being converted into written form within a reasonable time.  Unless

 

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otherwise provided as contemplated by Section 3.1, the Trustee is hereby appointed “Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided.  The Company may have one or more co-Registrars.

 

Upon surrender for registration of transfer of any Registered Security of any series at the office or agency maintained pursuant to Section 9.2 in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount.

 

Unless otherwise provided as contemplated by Section 3.1, Bearer Securities (except for any temporary global Bearer Securities) or any coupons appertaining thereto (except for coupons attached to any temporary global Bearer Security) shall be transferable by delivery.

 

Unless otherwise provided as contemplated by Section 3.1, at the option of the Holder, Registered Securities of any series (except a Registered Security in global form) may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount containing identical terms and provisions, upon surrender of the Registered Securities to be exchanged at such office or agency.  Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.  Unless otherwise specified as contemplated by Section 3.1, Bearer Securities may not be issued in exchange for Registered Securities.

 

Unless otherwise specified as contemplated by Section 3.1, at the option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities (if the Securities of such series are issuable in registered form) or Bearer Securities (if Bearer Securities of such series are issuable in more than one denomination and such exchanges are permitted by such series) of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining.  If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless.  If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 9.2, interest represented

 

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by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States.  Notwithstanding the foregoing, in case any Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date or (ii) any Special Record Date and before the opening of business at such office or agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date of payment, as the case may be (or, if such coupon is so surrendered with such Bearer Security, such coupon shall be returned to the person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon, when due in accordance with the provisions of this Indenture.

 

Unless otherwise specified pursuant to Section 3.1 with respect to a series of Securities or as otherwise provided below in this Section 3.5, owners of beneficial interests in Securities of such series represented by a Security issued in global form will not be entitled to have Securities of such series registered in their names, will not receive or be entitled to receive physical delivery of Securities of such series in certificated form and will not be considered the Holders or owners thereof for any purposes hereunder.  Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in certificated form in the circumstances described below, a Security in global form representing all or a portion of the Securities of a series may not be transferred or exchanged except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.

 

If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series notifies the Company that it shall no longer be eligible under Section 3.3, the Company shall appoint a successor Depositary with respect to the Securities of such series.  Unless otherwise provided as contemplated by Section 3.1, if a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.1(b) (25) shall no longer be effective with respect to the Securities of such series and the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.

 

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The Company may at any time in its sole discretion determine that Securities of a series issued in global form shall no longer be represented by such a Security or Securities in global form.  In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.

 

If specified by the Company pursuant to Section 3.1 with respect to a series of Securities, the Depositary for such series may surrender a Security in global form of such series in exchange in whole or in part for Securities of such series in certificated form on such terms as are acceptable to the Company and such Depositary.  Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,

 

(i)              to each Person specified by such Depositary a new certificated Security or Securities of the same series of like tenor, of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Security in global form; and
 
(ii)             to such Depositary a new Security in global form of like tenor in a denomination equal to the difference, if any, between the principal amount of the surrendered Security in global form and the aggregate principal amount of certificated Securities delivered to Holders thereof.
 

Upon the exchange of a Security in global form for Securities in certificated form, such Security in global form shall be cancelled by the Trustee.  Unless expressly provided with respect to the Securities of any series that such Security may be exchanged for Bearer Securities, Securities in certificated form issued in exchange for a Security in global form pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Security in global form shall instruct the Trustee.  The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

 

Whenever any Securities are surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

All Securities issued upon any registration of transfer or upon any exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

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Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing.

 

Unless otherwise provided as contemplated by Section 3.1, no service charge shall be made for any registration of transfer or for any exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration or transfer or exchange of Securities, other than exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.

 

Unless otherwise provided as contemplated by Section 3.1, the Company shall not be required (i) to issue, register the transfer of, or exchange any Securities for a period beginning at the opening of business l5 days before any selection for redemption of Securities of like tenor and of the series of which such Security is a part and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of Securities of like tenor and of such series to be redeemed, (ii) to register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part or (iii) to exchange any Bearer Security so selected for redemption, except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be simultaneously surrendered for redemption.

 

The foregoing provisions of this Section 3.5 relating to registration, transfer and exchange may be modified, supplemented or superseded with respect to any series of Securities by a Board Resolution or in one or more indentures supplemental hereto.

 

Section 3.6.           Replacement Securities .  If a mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, together with, in proper cases, such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver a replacement Registered Security, if such surrendered Security was a Registered Security, or a replacement Bearer Security with coupons corresponding to the coupons appertaining to the surrendered Security, if such surrendered Security was a Bearer Security, of the same series and date of maturity, if the Trustee’s requirements are met.

 

If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or Security with a destroyed, lost or stolen coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver

 

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in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a replacement Registered Security, if such Holder’s claim appertains to a Registered Security, or a replacement Bearer Security with coupons corresponding to the coupons appertaining to the destroyed, lost or stolen Bearer Security or the Bearer Security to which such lost, destroyed or stolen coupon appertains, if such Holder’s claim appertains to a Bearer Security, of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding with coupons corresponding to the coupons, if any, appertaining to the destroyed, lost or stolen Security.

 

In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security or coupon, pay such Security or coupon; provided, however, that payment of principal of and any premium or interest on Bearer Securities shall, except as otherwise provided in Section 9.2, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 3.1, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.

 

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee, its agents and counsel) connected therewith.

 

Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security and its coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.

 

Section 3.7.           Payment of Interest; Interest Rights Preserved .  (a)  Unless otherwise provided as contemplated by Section 3.1, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency maintained for such purpose pursuant to Section 9.2; provided, however, that at the option of the Company, interest on any series of Registered Securities that bear interest may be paid (i) by check mailed to the address of

 

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the Person entitled thereto as it shall appear on the Register of Holders of Securities of such series or (ii) to a Holder of $1,000,000 or more in aggregate principal amount of Securities by wire transfer to an account maintained by the Person entitled thereto as specified in the Register of Holders of Securities of such series.

 

Unless otherwise provided as contemplated by Section 3.1, (A) (i) interest, if any, on Bearer Securities shall be paid only against presentation and surrender of the coupons for such interest installments as are evidenced thereby as they mature and (ii) principal, original issue discount, if any, and premium, if any, on Bearer Securities shall be paid only against presentation and surrender of such Securities; in either case at the office of a Paying Agent located outside the United States, unless the Company shall have otherwise instructed the Trustee in writing provided that any such instruction for payment in the United States does not cause any Bearer Security to be treated as a “registration-required obligation” under United States laws and regulations, (B) the interest, if any, on any temporary Bearer Security shall be paid, as to any installment of interest evidenced by a coupon attached thereto only upon presentation and surrender of such coupon as provided in clause (A) above and, as to other installments of interest, only upon presentation of such Security for notation thereon of the payment of such interest and (C) if at the time a payment of principal of premium, if any, or interest, if any, on a Bearer Security or coupon shall become due, the payment of the full amount so payable at the office or offices of all the Paying Agents outside the United States is illegal or effectively precluded because of the imposition of exchange controls or other similar restrictions on the payment of such amount in Dollars, then the Company may instruct the Trustee to make such payment at a Paying Agent located in the United States, provided that provision for such payment in the United States would not cause such Bearer Security to be treated as a “registration-required obligation” under United States laws and regulations.

 

(b)  Unless otherwise provided as contemplated by Section 3.1, any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any interest payment date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

 

(1)  The Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause (1) provided.  Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10

 

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days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of such Registered Securities of such series at his address as it appears in the Register, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names such Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

 

(2)  The Company may make payment of any Defaulted Interest to the Persons in whose names such Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a specified date in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (2), such manner of payment shall be deemed practicable by the Trustee.

 

(c)  Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 3.8.           Persons Deemed Owners .  Prior to due presentment of any Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of, and premium, if any, and (subject to Section 3.7) interest and any other payments on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security shall be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

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None of the Company, the Trustee or any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.  Notwithstanding the foregoing, with respect to any Security in global form, nothing herein shall prevent the Company or the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary (or its nominee), as a Holder, with respect to such Security in global form or impair, as between such Depositary and owners of beneficial interests in such Security in global form, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Security in global form.

 

Section 3.9.           Cancellation .  The Company at any time may deliver Securities and coupons to the Trustee for cancellation.  The Registrar and any Paying Agent shall forward to the Trustee any Securities and coupons surrendered to them for replacement, for registration of transfer, or for exchange or payment.  The Trustee shall cancel all Securities and coupons surrendered for replacement, for registration of transfer, or for exchange, payment, redemption or cancellation and may destroy cancelled Securities and coupons and, if so destroyed, shall issue a certificate of destruction to the Company.  The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.

 

Section 3.10.         Computation of Interest .  Except as otherwise specified as contemplated by Section 3.1, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 3.11.         Currency and Manner of Payment in Respect of Securities .  (a)  Unless otherwise specified with respect to any Securities pursuant to Section 3.1, with respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of, and premium, if any, interest, if any, and other amounts, if any, on any Registered or Bearer Security of such series will be made in the currency or currencies or currency unit or units in which such Registered Security or Bearer Security, as the case may be, is payable.  The provisions of this Section 3.11, including without limitation any defined terms specified herein, may be modified or superseded in whole or in part pursuant to Section 3.1 with respect to any Securities.

 

(b)  It may be provided pursuant to Section 3.1, with respect to Registered Securities of any series, that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of, or premium, if any, or interest, if any, on such Registered Securities in any of the currencies or currency units which may be designated for such election by delivering to the Trustee (or the applicable Paying Agent) a written election with signature guarantees and in the applicable form established

 

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pursuant to Section 3.1, not later than the close of business on the Election Date immediately preceding the applicable payment date.  If a Holder so elects to receive such payments in any such currency or currency unit, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (or any applicable Paying Agent) for such series of Registered Securities (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date, and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article IV or with respect to which a notice of redemption has been given by or on behalf of the Company).  Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee (or any applicable Paying Agent) not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant currency or currency unit as provided in Section 3.11(a).  The Trustee (or the applicable Paying Agent) shall notify the Company and the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.

 

(c)  If the election referred to in paragraph (b) above has been provided for with respect to any Registered Securities of a series pursuant to Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with respect to any such Registered Securities, not later than the fourth Business Day after the Election Date for each payment date for such Registered Securities, the Exchange Rate Agent will deliver to the Company a written notice specifying, in the currency or currencies or currency unit or units in which Registered Securities of such series are payable, the respective aggregate amounts of principal of, premium, if any, and interest, if any, on such Registered Securities to be paid on such payment date, and specifying the amounts in such currency or currencies or currency unit or units so payable in respect of such Registered Securities as to which the Holders of Registered Securities denominated in any currency or currencies or currency unit or units shall have elected to be paid in another currency or currency unit as provided in paragraph (b) above.  If the election referred to in paragraph (b) above has been provided for with respect to any Registered Securities of a series pursuant to Section 3.1, and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.1, on the second Business Day preceding such payment date the Company will deliver to the Trustee (or the applicable Paying Agent) an Exchange Rate Officers’ Certificate in respect of the Dollar, Foreign Currency or Currencies or other currency unit payments to be made on such payment date.  Unless otherwise specified pursuant to Section 3.1, the Dollar, Foreign Currency or Currencies or other currency unit amount receivable by Holders of Registered Securities who have elected payment in a currency or currency unit as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the “Valuation Date”) immediately preceding each

 

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payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.

 

(d)  If a Conversion Event occurs with respect to a Foreign Currency or any other currency unit in which any of the Securities are denominated or payable otherwise than pursuant to an election provided for pursuant to paragraph (b) above, then, unless otherwise specified pursuant to Section 3.1, with respect to each date for the payment of principal of, premium, if any, and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency or such other currency unit occurring after the last date on which such Foreign Currency or such other currency unit was used (the “Conversion Date”), the Dollar shall be the currency of payment for use on each such payment date (but such Foreign Currency or such other currency unit that was previously the currency of payment shall, at the Company’s election, resume being the currency of payment on the first such payment date preceded by 15 Business Days during which the circumstances which gave rise to the Dollar becoming such currency of payment no longer prevail).  Unless otherwise specified pursuant to Section 3.1, the Dollar amount to be paid by the Company to the Trustee or any applicable Paying Agent and by the Trustee or any applicable Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a Foreign Currency that is a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.

 

(e)  Unless otherwise specified pursuant to Section 3.1, if the Holder of a Registered Security denominated in any currency or currency unit shall have elected to be paid in another currency or currency unit or in other currencies as provided in paragraph (b) above, and (i) a Conversion Event occurs with respect to any such elected currency or currency unit, such Holder shall receive payment in the currency or currency unit in which payment would have been made in the absence of such election and (ii) if a Conversion Event occurs with respect to the currency or currency unit in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) of this Section 3.11 (but, subject to any contravening valid election pursuant to paragraph (b) above, the elected payment currency or currency unit, in the case of the circumstances described in clause (i) above, or the payment currency or currency unit in the absence of such election, in the case of the circumstances described in clause (ii) above, shall, at the Company’s election, resume being the currency or currency unit of payment with respect to Holders who have so elected, but only with respect to payments on payment dates preceded by 15 Business Days during which the circumstances which gave rise to such currency or currency unit, in the case of the circumstances described in clause (i) above, or the Dollar, in the case of the circumstances described in clause (ii) above, becoming the currency or currency unit, as applicable, of payment, no longer prevail).

 

(f)  The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by the

 

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Exchange Rate Agent by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.

 

(g)  The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and, subject to the provisions of paragraph (h) below, shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency (as each such term is defined in paragraph (h) below) into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.

 

(h)  For purposes of this Section 3.11, the following terms shall have the following meanings:

 

A “Component Currency” shall mean any currency which, on the Conversion Date, was a component currency of the relevant currency unit.

 

“Conversion Event” shall mean the cessation of use of (i) a Foreign Currency both by the government of the country which issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community or (ii) any currency unit for the purposes for which it was established.

 

“Election Date” shall mean the Regular Record Date for the applicable series of Registered Securities as specified pursuant to Section 3.1 by which the written election referred to in Section 3.11(b) may be made.

 

“Euro” means the lawful currency of the participating member states of the European Union that adopt, or have adopted, a single currency in accordance with the Treaty establishing the European Community, as amended by the Treaty on European Union signed February 7, 1992.

 

“Exchange Rate Agent,” when used with respect to Securities of or within any series, shall mean, unless otherwise specified with respect to any Securities pursuant to Section 3.1, a New York Clearing House bank designated pursuant to Section 3.1 or Section 3.12.

 

“Exchange Rate Officer’s Certificate” shall mean a certificate setting forth (i) the applicable Market Exchange Rate or the applicable bid quotation and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount in the relevant currency or currency unit), payable with respect to a Security of any series on the basis of such Market Exchange Rate or the applicable bid quotation, signed by any Authorized Officer or by any other Officer.

 

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“Foreign Currency” shall mean any currency issued by the government or governments of one or more countries other than the United States or by any recognized confederation or association of such governments and shall include the Euro.

 

“Market Exchange Rate” shall mean, unless otherwise specified with respect to any Securities pursuant to Section 3.1, as of any date of determination, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.1 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent.  Unless otherwise specified with respect to any Securities pursuant to Section 3.1, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London or other principal market for such currency or currency unit in question (which may include any such bank acting as Trustee under this Indenture), or such other quotations as the Exchange Rate Agent shall deem appropriate.  Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in order to make payments in respect of such securities.

 

A “Specified Amount” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which such Component Currency represented in the relevant currency unit on the Conversion Date.  If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion.  If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single currency, and such amount shall thereafter be a Specified Amount and such single currency shall thereafter be a Component Currency.  If after the Conversion Date any Component Currency shall be divided into two or more

 

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currencies, the Specified Amount of such Component Currency shall be replaced by specified amounts of such two or more currencies, the sum of which, at the Market Exchange Rate of such two or more currencies on the date of such replacement, shall be equal to the Specified Amount of such former Component Currency and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies.  If, after the Conversion Date of the relevant currency unit, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.

 

All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee (and any applicable Paying Agent) and all Holders of Securities denominated or payable in the relevant currency, currencies or currency units.  The Exchange Rate Agent shall promptly give written notice to the Company and the Trustee of any such decision or determination.

 

In the event that the Company determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will promptly give written notice thereof to the Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying Agent) will promptly thereafter give notice in the manner provided in Section 1.6 to the affected Holders) specifying the Conversion Date.  In the event the Company so determines that a Conversion Event has occurred with respect to any currency unit in which Securities are denominated or payable, the Company will promptly give written notice thereof to the Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying Agent) will promptly thereafter give notice in the manner provided in Section 1.6 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date.  In the event the Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company will similarly give written notice to the Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent.

 

The Trustee of the appropriate series of Securities shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate Agent.

 

Section 3.12.         Appointment and Resignation of Exchange Rate Agent .  Unless otherwise specified pursuant to Section 3.1, if and so long as the Securities of any series

 

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(i) are denominated in a currency or currency unit other than Dollars or (ii) may be payable in a currency or currency unit other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.  The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 3.11 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued currency or currencies or currency unit or units into the applicable payment currency or currency unit for the payment of principal, premium, if any, and interest, if any, pursuant to Section 3.11.

 

No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Exchange Rate Agent.

 

If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 3.1, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same currency or currencies or currency unit or units).

 

Section 3.13.         CUSIP Numbers .  The Company in issuing Securities may use “CUSIP” numbers (if then generally in use), and if so, the Trustee may use the CUSIP numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Securities, that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption or exchange shall not be affected by any defect or omission of such CUSIP numbers.  The Company will promptly notify the Trustee of any change in CUSIP numbers known to an Officer of the Company.

 

ARTICLE IV

 

SATISFACTION, DISCHARGE AND DEFEASANCE

 

Section 4.1.           Termination of Company’s Obligations Under the Indenture .  This Indenture shall upon Company Request cease to be of further effect with respect to Securities of or within any series and any coupons appertaining thereto (except as to any surviving rights of registration of transfer or exchange of such Securities and replacement

 

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of such Securities which may have been lost, stolen or mutilated as herein expressly provided for) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities and any coupons appertaining thereto when:

 

(1)    either

 

(A)    all such Securities previously authenticated and delivered and all coupons appertaining thereto (other than (i) such coupons appertaining to Bearer Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required or has been waived as provided in Section 3.5, (ii) such Securities and coupons which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6, (iii) such coupons appertaining to Bearer Securities called for redemption and maturing after the relevant Redemption Date, surrender of which has been waived as provided in Section 10.6 and (iv) such Securities and coupons for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 9.3) have been delivered to the Trustee for cancellation; or

 

(B)     all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation

 

(i)      have become due and payable, or

 

(ii)     will become due and payable at the Stated Maturity or the principal thereof within one year, or

 

(iii)    if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds (which may be held in an account insured by the Federal Deposit Insurance Corporation) in trust for the purpose an amount in cash, Government Obligations or a combination thereof in the currency or currencies or currency unit or units in which the Securities of such series are payable, sufficient to pay and discharge (without reinvestment) the entire indebtedness on such Securities and such coupons not theretofore delivered to the Trustee for cancellation, for principal, premium, if any, and interest, with respect thereto, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(2)    the Company has paid or caused to be paid all other sums then payable hereunder by the Company; and

 

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(3)  the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Article relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligation of the Company to the Trustee and any predecessor Trustee under Section 6.8, the obligations of the Company to any Authenticating Agent under Section 6.13 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 4.2 and the last paragraph of Section 9.3 shall survive.

 

Section 4.2.           Application of Trust Funds .  Subject to the provisions of the last paragraph of Section 9.3, all money and Government Obligations deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any and any interest for whose payment such money has been deposited with or received by the Trustee, but such money need not be segregated from other funds except to the extent required by law.

 

Section 4.3.           Applicability of Defeasance Provisions; Company’s Option to Effect Defeasance or Covenant Defeasance .  Unless pursuant to Section 3.1 provision is made to exclude with respect to the Securities of a particular series either or both of (i) defeasance of the Securities of or within such series under Section 4.4 or (ii) covenant defeasance of the Securities of or within such series under Section 4.5, then the provisions of such Section or Sections, as the case may be, together with the provisions of Sections 4.6 through 4.9 inclusive, with such modifications thereto as may be specified pursuant to Section 3.1 with respect to any Securities of such series, shall be applicable to such Securities and any coupons appertaining thereto, and the Company may at its option, at any time, with respect to such Securities and any coupons appertaining thereto, elect to have Section 4.4 (if applicable) or Section 4.5 (if applicable) be applied to such Outstanding Securities and any coupons appertaining thereto upon compliance with the conditions set forth below in this Article.

 

Section 4.4.           Defeasance and Discharge .  Upon the Company’s exercise of the option (if any) specified in Section 4.3 applicable to this Section with respect to the Securities of or within a series, the Company shall be deemed to have been discharged from its obligations with respect to such Securities and any coupons appertaining thereto on the date the conditions set forth in Section 4.6 are satisfied (hereinafter “defeasance”).  For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and any coupons appertaining thereto, which Securities and coupons appertaining thereto shall thereafter be deemed to be “Outstanding” only for the purposes of Section 4.7 and the other Sections of this Indenture referred to in clause (ii) of this Section, and to have satisfied all

 

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its other obligations under such Securities and any coupons appertaining thereto and this Indenture insofar as such Securities and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall on Company Order execute proper instruments acknowledging the same), except the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Securities and any coupons appertaining thereto to receive, solely from the trust funds described in Section 4.6(a) and as more fully set forth in such Section, payments in respect of the principal of, and premium, if any, and interest, if any, on such Securities or any coupons appertaining thereto when such payments are due, (ii) the Company’s obligations with respect to such Securities under Sections 3.5, 3.6, 9.2 and 9.3 and with respect to the payment of Additional Amounts, if any, payable with respect to such Securities as specified pursuant to Section 9.8 (subject to Section 3.1),   (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including, without limitation, the Trustee’s rights under Section 6.8 of this Indenture, and (iv) this Article IV.  Subject to compliance with this Article IV, the Company may exercise its option under this Section notwithstanding the prior exercise of its option under Section 4.5 with respect to such Securities and any coupons appertaining thereto.  Following a defeasance, payment of such Securities may not be accelerated because of an Event of Default.

 

Section 4.5.           Covenant Defeasance .  Upon the Company’s exercise of the option (if any) specified in Section 4.3 applicable to this Section with respect to any Securities of or within a series, the Company shall be released from its obligations under Sections 7.1, 9.4 and 9.5, and, if specified pursuant to Section 3.1, its obligations under any other covenant, with respect to such Securities and any coupons appertaining thereto on and after the date the conditions set forth in Section 4.6 are satisfied (hereinafter, “covenant defeasance”), and such Securities and any coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with Sections 7.1, 9.4 and 9.5, or such other covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder.  For this purpose, such covenant defeasance means that, with respect to such Securities and any coupons appertaining thereto, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 5.1(3) or 5.1(6) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and any coupons appertaining thereto shall be unaffected thereby.

 

Section 4.6.           Conditions to Defeasance or Covenant Defeasance .  The following shall be the conditions to application of Section 4.4 or Section 4.5 to any Securities of or within a series and any coupons appertaining thereto:

 

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(a)  The Company shall have deposited or caused to be deposited irrevocably with the Trustee (or another trustee satisfying the requirements of Section 6.11 who shall agree to comply with, and shall be entitled to the benefits of, the provisions of Sections 4.3 through 4.9 inclusive and the last paragraph of Section 9.3 applicable to the Trustee, for purposes of such Sections also a “Trustee”) as trust funds in trust for the purpose of making the payments referred to in clauses (x) and (y) of this Section 4.6(a), specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any coupons appertaining thereto, with instructions to the Trustee as to the application thereof, (A) money in an amount (in such currency, currencies or currency unit in which such Securities and any coupons appertaining thereto are then specified as payable at Maturity), or (B) if Securities of such series are not subject to repayment at the option of Holders, Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms (but without reinvestment) will provide, not later than one day before the due date of any payment referred to in clause (x) or (y) of this Section 4.6(a), money in an amount or (C) a combination thereof in an amount, sufficient, in the opinion of a nationally recognized independent accounting or investment banking firm expressed in a written certification thereof delivered to the Trustee, to pay and discharge (without reinvestment), and which shall be applied by the Trustee to pay and discharge, (x) the principal of, premium, if any, and interest, if any, on such Securities and any coupons appertaining thereto on the Maturity of such principal or installment of principal or interest and (y) any  mandatory sinking fund payments applicable to such Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and such Securities and any coupons appertaining thereto.  Before such a deposit the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article X which shall be given effect in applying the foregoing.

 

(b)  Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute an Event of Default under, this Indenture or result in a breach or violation of, or constitute a default under, any other material agreement or instrument to which the Company is a party or by which it is bound.

 

(c)  In the case of an election under Section 4.4, no Event of Default under Section 5.1(4) or 5.1(5) with respect to such Securities and any coupons appertaining thereto shall have occurred and be continuing during the period commencing on the date of such deposit and ending on the 91st day after such date (it being understood that this condition shall not be deemed satisfied until the expiration of such period).

 

(d)  In the case of an election under Section 4.4, the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of execution of this Indenture there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize income, gain or loss for Federal income tax

 

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purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts and in the same manner and at the same times, as would have been the case if such defeasance had not occurred.

 

(e)  In the case of an election under Section 4.5, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.

 

(f)  The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent under this Section 4.6 to the defeasance under Section 4.4 or the covenant defeasance under Section 4.5 (as the case may be) have been complied with and an Opinion of Counsel to the effect that either (i) as a result of a deposit pursuant to subsection (a) above and the related exercise of the Company’s option under Section 4.4 or Section 4.5 (as the case may be), registration is not required under the Investment Company Act of 1940, as amended, by the Company, with respect to the trust funds representing such deposit or by the trustee for such trust funds or (ii) all necessary registrations under said act have been effected.

 

(g)  Such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith as contemplated by Section 3.1.

 

Section 4.7.           Deposited Money and Government Obligations to Be Held in Trust .  Subject to the provisions of the last paragraph of Section 9.3, all money and Government Obligations (or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.6 in respect of any Securities of any series and any coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons appertaining thereto of all sums due and to become due thereon in respect of principal, premium, if any, and interest, if any, but such money need not be segregated from other funds except to the extent required by law.

 

Unless otherwise specified with respect to any Security pursuant to Section 3.1, if, after a deposit referred to in Section 4.6(a) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.11(b) or the terms of such Security to receive payment in a currency or currency unit other than that in which the deposit pursuant to Section 4.6(a) has been made in respect of such Security or (ii) a Conversion Event occurs as contemplated in Section 3.11(d) or 3.11(e) or by the terms of any Security in respect of which the deposit

 

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pursuant to Section 4.6(a) has been made, the indebtedness represented by such Security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of, premium, if any, and interest, if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the currency or currency unit in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such currency or currency unit in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for such currency or currency unit in effect (as nearly as feasible) at the time of the Conversion Event.  The Trustee shall have no duty under this paragraph until it has been provided with all necessary information.

 

Section 4.8.           Repayment to Company .  The Trustee (and any Paying Agent) shall promptly pay to the Company upon Company Request any excess money or securities held by them at any time.  Such Company Request shall specifically set forth the amount of such excess and the Trustee shall be fully protected and shall incur no liability in reliance on such Company Request.

 

Section 4.9.           Indemnity for Government Obligations .  The Company shall pay, and shall indemnify the Trustee against, any tax, fee or other charge imposed on or assessed against Government Obligations deposited pursuant to this Article or the principal and interest received on such Government Obligations, other than any such tax, fee or other charge that by law is for the account of the Holders of the Securities subject to defeasance or covenant defeasance pursuant to this Article.

 

ARTICLE V

 

EVENTS OF DEFAULT AND REMEDIES

 

Section 5.1.           Events of Default .  An “Event of Default” occurs with respect to the Securities of any series if (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(1)    the Company defaults in the payment of interest on any Security of that series or any coupon appertaining thereto or any Additional Amount payable with respect to any Security of that series as specified pursuant to Section 9.8 (subject to Section 3.1) when the same becomes due and payable and such default continues for a period of 30 days;

 

(2)    the Company defaults in the payment of the principal of, or any premium on, any Security of that series when the same becomes due and payable at its Maturity or on redemption or otherwise, or in the payment of a mandatory sinking fund payment when and as due by the terms of the Securities of that series;

 

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(3)    the Company defaults in the performance of, or breaches, any covenant or warranty of the Company in this Indenture with respect to any Security of that series (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), and such default or breach continues for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Event of Default” hereunder;

 

(4)    the Company (A) commences a voluntary case or proceeding under any applicable law involving a Winding Up of the Company or any other case or proceeding whereby the Company may be wound up, dissolved or cease to exist as a body corporate, or (B) consents to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable law involving a Winding Up of the Company or to the commencement of any such case or proceeding against it or (C) files a petition or answer or consent seeking such relief under any applicable law, or consents to the filing of such petition; provided in any such case that such event will necessarily result in a Winding Up of the Company;

 

(5)    a court of competent jurisdiction enters or, in the case of (C) below, a proceeding shall have been commenced by any person other than the Company for (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding involving a Winding Up of the Company or (B) a decree or order relating to a Winding Up of the Company where such decree or order will necessarily result in a Winding Up of the Company or (C) a decree or order appointing a custodian, receiver, liquidator, statutory manager, controller, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, and such decree, proceeding or order shall be continuing and not rescinded, suspended or stayed for a period of 60 consecutive days, or the Company consents to such an appointment or makes a general assignment for the benefit of its creditors;

 

(6)    any other Event of Default provided as contemplated by Section 3.1 with respect to Securities of that series.

 

Section 5.2.           Acceleration; Rescission and Annulment .  If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then, in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.

 

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At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of at least a majority in principal amount of the Outstanding Securities of that series, by written notice to the Trustee, may rescind and annul such declaration and its consequences if all existing Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series that have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.7.  No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

Section 5.3.           Collection of Indebtedness and Suits for Enforcement by Trustee .  The Company covenants that if:

 

(1)    there is a default in the payment of any interest on any Security or coupon, if any, when such interest becomes due and payable and such default continues for a period of 30 days, or

 

(2)    there is a default in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

 

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities or coupons, if any, the whole amount then due and payable on such Securities for principal, premium, if any, and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal, premium, if any, and on any overdue interest, at the rate or rates prescribed therefor in such Securities or coupons, if any, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities of such series, wherever situate.

 

If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

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Section 5.4.           Trustee May File Proofs of Claim .  In case of the pendency of any Winding Up of the Company or any other receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal, premium, interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the trustee, its agents and counsel, any other amounts due the Trustee under Section 6.8.

 

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided , however , that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

 

Section 5.5.           Trustee May Enforce Claims Without Possession of Securities .  All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee, in its own name and as trustee of an express trust, without the possession of any of the Securities or the production thereof in any proceeding relating thereto.

 

Section 5.6.           Delay or Omission Not Waiver .  No delay or omission by the Trustee or any Holder of any Securities to exercise any right or remedy accruing upon an Event of Default shall impair any such right or remedy or constitute a waiver of or acquiescence in any such Event of Default.

 

Section 5.7.           Waiver of Past Events of Default .  The Holders of at least a majority in aggregate principal amount of Outstanding Securities of any series by notice to the Trustee may waive on behalf of the Holders of all Securities of such series a past Event of Default with respect to that series and its consequences except an Event of Default (i) in the payment of the principal of, or premium, if any, or interest on any Security of such series or any coupon appertaining thereto or (ii) in respect of a covenant or provision hereof which pursuant to Section 8.2 cannot be amended or modified

 

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without the consent of the Holder of each Outstanding Security of such series adversely affected.  Upon any such waiver, such Event of Default shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon.  In case of any such waiver, the Company, the Trustee and the Holders shall be restored to their former positions and rights hereunder and under the Securities of such series, respectively.

 

Section 5.8.           Control by Majority .  The Holders of at least a majority in aggregate principal amount of the Outstanding Securities of each series affected (with each such series voting as a class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it with respect to Securities of that series; provided, however, that (i) the Trustee may refuse to follow any direction that conflicts with law or this Indenture, (ii) the Trustee may refuse to follow any direction that is unduly prejudicial to the rights of the Holders of Securities of such series not consenting, or that would in the good faith judgment of the Trustee have a substantial likelihood of involving the Trustee in personal liability and (iii) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

Section 5.9.           Limitation on Suits by Holders .  No Holder of any Security of any series or any coupons appertaining thereto shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

(1)    the Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

 

(2)    the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series have made a written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

(3)    such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense to be, or which may be, incurred by the Trustee in pursuing the remedy;

 

(4)    the Trustee for 60 days after its receipt of such notice, request and the offer of indemnity has failed to institute any such proceedings; and

 

(5)    during such 60 day period, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of that series have not given to the Trustee a direction inconsistent with such written request.

 

No one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the

 

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rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.

 

Section 5.10.         Rights of Holders to Receive Payment .  Notwithstanding any other provision of this Indenture, but subject to Section 9.2, the right of any Holder of a Security or coupon to receive payment of principal of, and premium, if any, and, (subject to Sections 3.5 and 3.7), interest on the Security, on or after the respective due dates expressed in the Security (or, in case of redemption, on the redemption dates), and the right of any Holder of a coupon to receive payment of interest due as provided in such coupon, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

Section 5.11.         Application of Money Collected .  If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, premium, if any, or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

First :  to the Trustee for amounts due under Section 6.8;

 

Second : to Holders of Securities and coupons in respect of which or for the benefit of which such money has been collected for amounts due and unpaid on such Securities for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and

 

Third :  to the Company.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 5.11.  At least 15 days before such record date, the Trustee shall mail to each Holder and the Company a notice that states the record date, the payment date and the amount to be paid.

 

Section 5.12.         Restoration of Rights and Remedies .  If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

Section 5.13.         Rights and Remedies Cumulative .  Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen

 

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Securities in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 5.14.         Waiver of Stay, Extension or Usury Laws .  The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other similar law wherever enacted, now or at any time hereafter in force, that would prohibit or forgive the Company from paying all or any portion of the principal of or premium, if any, or interest on the Securities contemplated herein or in the Securities or that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 5.15.         Waiver of Sovereign Immunity .  To the extent that the Company or any properties, assets or revenues of the Company 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 setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or 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 any Security or any series of this Indenture, the Company, to the extent permitted by applicable law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consent to such relief and enforcement, provided , however , that nothing herein shall affect the applicability of:

 

(1)    Section 13A of the Banking Act 1959 of the Commonwealth of Australia, which provides that in the event of a bank such as the Company becoming unable to meet its obligations or suspending payment thereof, the assets of such bank in Commonwealth of Australia shall be available to meet its deposit liabilities in Commonwealth of Australia in priority to all other liabilities of such bank;

 

(2)    Section 86 of the Reserve Bank Act 1959 of the Commonwealth of Australia, which provides, in a Winding Up of a bank, that debts due to the Reserve Bank of Australia by a bank such as the Company shall, subject to Section 13A of the Banking Act 1959 of the Commonwealth of Australia, have priority over all

 

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other debts of such bank other than debts due to the Commonwealth of Australia; and

 

(3)    Section 16 of the Banking Act 1959 of the Commonwealth of Australia, which provides, in a Winding Up of a bank such as the Company, that, subject to Section 13A of the Banking Act 1959 to the Commonwealth of Australia, debts due to the Australian Prudential Regulation Authority have priority over all other unsecured debts of the bank.

 

ARTICLE VI

 

THE TRUSTEE

 

Section 6.1.           Rights, Duties and Responsibilities of Trustee .  Subject to the provisions of the Trust Indenture Act:

 

(a)  In the absence of bad faith on its part, the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper party or parties.  The Trustee need not investigate any fact or matter stated in the document.

 

(b)  Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 3.3, which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution.

 

(c)  Before the Trustee acts or refrains from acting, it may consult with counsel and/or require an Officers’ Certificate.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on a Board Resolution, the advice of counsel acceptable to the Company and the Trustee, a certificate of an Officer or Officers delivered pursuant to Section 1.2, an Officers’ Certificate or an Opinion of Counsel.

 

(d)  The Trustee may act through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.

 

(e)  The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its discretion or rights or powers.

 

(f)  The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

 

(i)                this clause (f) does not limit the effect of Section 6.1(c);

 

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(ii)               the Trustee shall not be liable for any error of judgment made in good faith by an Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
 
(iii)              the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.8.
 

(g)  The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(h)  The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of the Company, personally or by agent or attorney.

 

Notwithstanding anything contained herein to the contrary, in case an Event of Default with respect to the Securities of any series has occurred and is continuing, the Trustee shall exercise, with respect to Securities of such series, such of the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent individual would exercise or use under the circumstances in the conduct of his or her own affairs.

 

Section 6.2.           Trustee May Hold Securities .  The Trustee, any Paying Agent, any Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company, an Affiliate or Subsidiary with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent.

 

Section 6.3.           Money Held in Trust .  Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

 

Section 6.4.           Trustee’s Disclaimer .  The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representation as to the validity or adequacy of this

 

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Indenture or the Securities or any coupon, except that the Trustee represents and warrants that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and thereunder; that the statements made by it in a Statement of Eligibility and Qualification on Form T-1 supplied or to be supplied to the Company in connection with the registration of any Securities are and will be true and accurate subject to the qualifications set forth therein; and that such Statement complies and will comply in all material respects with the requirements of the Trust Indenture Act and the Securities Act.  The Trustee shall not be accountable for the Company’s use of the proceeds from the Securities or for monies paid over to the Company pursuant to the Indenture.

 

Section 6.5.           Notice of Events of Default .  If a default occurs and is continuing with respect to the Securities of any series and if it is known to the Trustee, the Trustee shall, within 90 days after it occurs, transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of all such uncured events that are known to it; provided, however, that, except in the case of an Event of Default in payment on the Securities of any series, the Trustee may withhold the notice if and so long as a Responsible Officer in good faith determines that withholding such notice is in the interests of Holders of Securities of that series; provided, further, that in the case of any default or breach of the character specified in Section 5.1(3) with respect to the Securities and coupons of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof.  For the purpose of this Section only, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the securities of such series.

 

Section 6.6.           Reports by Trustee to Holders .  Within 60 days after each May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of Securities as provided in Section 313(c) of the Trust Indenture Act a brief report dated as of such May 15 if required by and in compliance with Section 313(a) of the Trust Indenture Act.  A copy of each report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities are listed, with the Commission and with the Company.  The Company will promptly notify the Trustee when the Securities are listed on any stock exchange and of any delisting thereof.

 

Section 6.7.           Security Holder Lists .  The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of Securities of each series.  If the Trustee is not the Registrar, the Company shall furnish to the Trustee within 14 days after each Regular Record Date, and at such other times as the Trustee may request in writing, within 5 Business Days of such request, a list, in such form and as of such date as the Trustee may reasonably require, containing all the information in the possession or control of the Registrar, the Company or any of its Paying Agents other than the Trustee as to the names and addresses of Holders of Securities of each such series.  If there are Bearer Securities of any series Outstanding, even if the Trustee is the Registrar, the Company shall furnish to the Trustee

 

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such a list containing such information with respect to Holders of such Bearer Securities only.

 

Section 6.8.           Compensation and Indemnity .  (a)  The Company shall pay to the Trustee from time to time such compensation for its services as the Company and the Trustee may agree in writing from time to time.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon request for all reasonable expenses, disbursements and advances incurred by it in connection with the performance of its duties under this Indenture, except any such expense, disbursement or advance as may be attributable to its negligence or bad faith.  Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.

 

(b)  The Company shall indemnify the Trustee for, and hold it harmless against, any and all loss, liability, damage, claim or expense (including taxes other than taxes based upon, measured by or determined by the income of the Trustee), including the costs and expenses of defending itself against any third-party claim, incurred by it arising out of or in connection with its acceptance or administration of the trust or trusts hereunder (collectively, “Claims”).  The Trustee shall notify the Company promptly of any Claim for which it may seek indemnity.  The Company shall defend the Claim and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement made without its consent; provided that such consent shall not be unreasonably withheld.

 

(c)  The Company need not reimburse any expense, disbursement or advance or indemnify against any Claim incurred by the Trustee through negligence or bad faith.

 

(d)  To secure the payment obligations of the Company pursuant to this Section, the Trustee shall have a lien prior to the Securities of any series on all money or property held or collected by the Trustee, except that held in trust to pay principal, premium, if any, and interest on particular Securities.

 

(e)  When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(4) or Section 5.1(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.

 

(f)  The provisions of this Section shall survive the termination of this Indenture.

 

Section 6.9.           Replacement of Trustee .  (a)  The resignation or removal of the Trustee and the appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in Section 6.10.

 

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(b)  The Trustee may resign at any time with respect to the Securities of any series by giving written notice thereof to the Company.  If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(c)  The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may remove the Trustee with respect to that series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the Company’s consent.

 

If an instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(d)  If at any time:

 

(1)            the Trustee fails to comply with Section 310(b) of the Trust Indenture Act after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(2)            the Trustee shall cease to be eligible under Section 6.11 hereof or Section 310(a) of the Trust Indenture Act and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months; or

 

(3)            the Trustee becomes incapable of acting, is adjudged a bankrupt or an insolvent or a receiver or public officer takes charge of the Trustee or its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company may remove the Trustee with respect to all Securities or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

(e)  If the Trustee resigns or is removed or becomes incapable of acting or if a vacancy exists in the office of Trustee for any reason, with respect to Securities of one or more series, the Company shall promptly appoint a successor Trustee with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular

 

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series) and shall comply with the applicable requirements of Section 6.10.  If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.10, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.10, then, subject to Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

Section 6.10.                             Acceptance of Appointment by Successor .  (a)  In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment.  Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee, without further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder subject nevertheless to its lien, if any, provided for in Section 6.8 of this Indenture.

 

(b)  In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein such successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts

 

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hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

 

(c)  Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.

 

(d)  No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under the Trust Indenture Act.

 

(e)  The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the Holders of Securities in Section 1.6.  Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

Section 6.11.                             Eligibility; Disqualification .  There shall at all times be a Trustee hereunder with respect to each series of Securities (which need not be the same Trustee for all series).  Each Trustee hereunder shall be eligible to act as trustee under Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital and surplus of at least $50,000,000.  If such corporation publishes reports of condition at least annually, pursuant to law or the requirements of Federal, State, Territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.  To the extent permitted by the Trust Indenture Act, any Trustee hereunder shall not be deemed to have a conflicting interest by virtue of being the trustee under (i) the Subordinated Indenture, dated as of the date hereof, between the Company

 

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and The Chase Manhattan Bank, as trustee, (ii) the Junior Subordinated Indenture, dated as of date hereof (the “Junior Subordinated Indenture”), between the Company and The Chase Manhattan Bank, as trustee, (iii) the Amended and Restated Declaration of Trust of Westpac Capital Trust I, dated as of the date hereof, among Westpac Capital Holdings Inc., as sponsor, Lewis E. Love, Jr., Manuela Adl and Robert Goldwasser, as the regular trustees, The Chase Manhattan Bank, as the property trustee, Chase Manhattan Bank Delaware, as the Delaware trustee and the holders from time to time of the securities representing undivided beneficial ownership interests in the assets of Westpac Capital Trust I, (iv) the Amended and Restated Declaration of Trust of Tavarua Funding Trust I, dated as of the date hereof, among Westpac Funding Holdings Pty Ltd., as sponsor, Lewis E. Love, Jr., Manuela Adl and Robert Goldwasser, as the regular trustees, Chase Manhattan Bank, as the property trustee, The Chase Manhattan Bank Delaware, as the Delaware trustee and the holders from time to time of the securities representing undivided beneficial ownership interests in the assets of Tavarua Funding Trust I, (v) the Capital Trust Preferred Securities Guarantee, dated as of the date hereof, between the Company, as guarantor, and The Chase Manhattan Bank, as capital trust preferred guarantee trustee, (vi) the Funding Trust Preferred Securities Guarantee, dated as of the date hereof, between the Company, as guarantor, and The Chase Manhattan Bank, as funding trust preferred guarantee trustee and (vii) the 8% New Zealand-dollar denominated junior subordinated convertible debentures, issued by the Company acting through its branch located in Wellington, Commonwealth of New Zealand pursuant to the Junior Subordinated Indenture.

 

Section 6.12.                             Merger, Conversion, Consolidation or Succession to Business .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.  In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 6.13.                             Appointment of Authenticating Agent .  The Trustee shall initially be the Authenticating Agent.  The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue exchange, registration of transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.  Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the

 

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Company.  Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.  Each Authenticating Agent shall be acceptable to the Company and, except as may otherwise be provided pursuant to Section 3.1, shall at all times be a bank or trust company or corporation organized and doing business and in good standing under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authorities.  If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  In case at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

 

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating Agent.

 

An Authenticating Agent for any series of Securities may at any time resign by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner set forth in Section 1.6.  Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein.  No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

The Company agrees to pay to each Authenticating Agent from time to time such reasonable compensation as the Company and such Authenticating Agent agree in

 

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writing from time to time including reimbursement of its reasonable expenses for its services under this Section.

 

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the following form:

 

This is one of the Securities of the series designated herein and issued under the within-mentioned Indenture.

 

 

The Chase Manhattan Bank, as Trustee

 

 

 

By

 

 

 

as Authenticating Agent

 

 

 

 

By

 

 

 

Authorized Signatory

 

Section 6.14.                             Preferential Collection of Claims Against Company .  If and when the Trustee shall be or become a creditor of the Company (or any other obligor under the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

ARTICLE VII

 

CONSOLIDATION, MERGER OR SALE BY THE COMPANY

 

Section 7.1.                                   Consolidation, Merger or Sale of Assets Permitted .  The Company may not merge or consolidate with or into any other Person or sell, convey or transfer all or substantially all of its assets to any Person, unless (i) (A) in the case of such merger or consolidation, the Company is the surviving Person or (B) the Person formed by such consolidation or into which the Company is merged, or the Person that acquires by sale, conveyance or transfer, the assets of the Company is organized and existing under the laws of the Commonwealth of Australia or any political subdivision of the Commonwealth of Australia and entitled to carry on the business of the Company and such Person expressly assumes by supplemental indenture delivered to the Trustee all the obligations of the Company under the Securities and any coupons appertaining thereto and under this Indenture, (ii) immediately thereafter, giving effect to such merger or consolidation, or such sale, conveyance or transfer, no Event of Default shall have occurred and be continuing and (iii) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such merger, consolidation, sale, conveyance or transfer complies with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (which Opinion of Counsel may rely on such Officers’ Certificate with respect to compliance with the preceding clause (ii)).  In the event of the assumption by a successor

 

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Person of the obligations of the Company as provided in clause ( i )(B) of the immediately preceding sentence, such successor Person shall succeed to and be substituted for the Company hereunder and under the Securities and any coupons appertaining thereto and all such obligations of the Company shall terminate.

 

ARTICLE VIII

 

SUPPLEMENTAL INDENTURES

 

Section 8.1.                                   Supplemental Indentures Without Consent of Holders .  Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:

 

(1)            to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants and obligations of the Company herein and in the Securities (with such changes herein and therein as may be necessary or advisable to reflect such Person’s legal status, if such Person is not a corporation); or

 

(2)            to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants, for which a grace period may be provided, are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or to comply with any requirement of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act or otherwise; or

 

(3)            to add any additional Events of Default with respect to all or any series of Securities; or

 

(4)            to add to or change any of the provisions of this Indenture to such extent as shall be necessary to facilitate the issuance of Bearer Securities (including, without limitation, to provide that Bearer Securities may be registrable as to principal only) or to facilitate or provide for the issuance of Securities in global form in addition to or in place of Securities in certificated form; or

 

(5)            to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only with respect to any series of Securities which has not been issued as of the execution of such supplemental indenture or when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or

 

(6)            to secure the Securities; or

 

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(7)            to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or

 

(8)            to provide for the delivery of indentures supplemental hereto or the Securities of any series in or by means of any computerized, electronic or other medium, including without limitation by computer diskette; or

 

(9)            to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Article VI; or

 

(10)      if allowed without penalty under applicable laws and regulations, to permit payment in the United States (including any of the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction of principal, premium, if any, or interest, if any, on Bearer Securities or coupons, if any; or

 

(11)      to maintain qualification of this Indenture under the Trust Indenture Act; or

 

(12)      to correct or supplement any provision herein which may be inconsistent with any other provision herein or to cure any ambiguity or omission or to correct any mistake, provided such action shall not adversely affect the interests of the Holders of Securities of any series; or

 

(13)      to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any series.

 

The Company has undertaken with the Australian Prudential Regulation Authority that it will not consent to the amendment of Section 5.1 or Article X hereof or a change in the Stated Maturity of the principal of the Securities of any series without the prior approval of the Australian Prudential Regulation Authority.

 

Section 8.2.                                   With Consent of Holders .  With the written consent of the Holders of not less than a majority of the aggregate principal amount of the Outstanding Securities of each series adversely affected by such supplemental indenture (with the Securities of each series voting as a class), the Company and the Trustee may enter into an indenture or indentures supplemental hereto to add any provisions to or to change or eliminate any provisions of this Indenture or of any other indenture supplemental hereto or to modify the rights of the Holders of Securities of each such series; provided, however, that without the consent of the Holder of each Outstanding Security affected thereby, a supplemental indenture under this Section may not:

 

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(1)            change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or Indexed Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or change the coin or currency in which any Securities or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date);

 

(2)            reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;

 

(3)            change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 9.2; or

 

(4)            except to the extent provided in Section 8.1(9), make any change in Section 5.2, 5.7, 5.10 or this Section 8.2 except to increase any percentage or to provide that certain other provisions of this Indenture cannot be modified or waived except with the consent of the Holders of each Outstanding Security affected thereby.

 

For the purposes of this Section 8.2, if the Securities of any series are issuable upon the exercise of warrants, any holder of an unexercised and unexpired warrant with respect to such series shall not be deemed to be a Holder of Outstanding Securities of such series in the amount issuable upon the exercise of such warrants.

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

The Company has undertaken with the Australian Prudential Regulation Authority that it will not consent to the amendment of Section 5.1 or Article X hereof or to a change in the Stated Maturity of the principal of the Securities of any series without the prior approval of the Australian Prudential Regulation Authority.  Immediately prior to entering into a supplemental indenture amending such sections or changing the Stated Maturity of the principal of the Securities of any series pursuant to this Section 8.2, the Company shall deliver to the Trustee an Officers’ Certificate stating that the Company is entitled to effect such amendment or change and setting forth a statement of facts

 

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showing that the conditions precedent to the right of the Company to do so have occurred.

 

It is not necessary under this Section 8.2 for the Holders to consent to the particular form of any proposed supplemental indenture, but it is sufficient if they consent to the substance thereof.

 

Section 8.3.                                   Compliance with Trust Indenture Act .  Every amendment to this Indenture or the Securities of one or more series shall be set forth in a supplemental indenture that complies with the Trust Indenture Act as then in effect.

 

Section 8.4.                                   Execution of Supplemental Indentures .  In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.  The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.  The Trustee shall enter into any such supplemental indenture if such supplemental indenture does not adversely affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Section 8.5.                                   Effect of Supplemental Indentures .  Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupon appertaining thereto shall be bound thereby; provided that if such supplemental indenture makes any of the changes described in clauses (1) through (4) of the first proviso to Section 8.2, such supplemental indenture shall bind each Holder of a Security who has consented to it and every subsequent Holder of such Security or any part thereof.

 

Section 8.6.                                   Reference in Securities to Supplemental Indentures .  Securities, including any coupons, of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new Securities including any coupons of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities including any coupons of such series.

 

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ARTICLE IX

 

COVENANTS

 

Section 9.1.                                   Payment of Principal, Premium, if any, and Interest .  The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of, and premium, if any, and interest on the Securities of that series in accordance with the terms of the Securities of such series, any coupons appertaining thereto and this Indenture.  An installment of principal, premium, if any, or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for and sufficient to pay the installment.

 

Section 9.2.                                   Maintenance of Office or Agency .  If Securities of a series are issued as Registered Securities, the Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.  If Securities of a series are issuable as Bearer Securities, the Company will maintain, (i) subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for that series which is located outside the United States, where Securities of that series and related coupons may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange and (ii) subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for that series which is located outside the United States where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

Unless otherwise specified as contemplated by Section 3.1, no payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States, by check mailed to any address in the United States, by transfer to an account located in the United States or upon presentation or surrender in the United States of a Bearer Security or coupon for payment, even if the payment would

 

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be credited to an account located outside the United States; provided, however, that, if the Securities of a series are denominated and payable in Dollars, payment of principal of and any premium or interest on any such Bearer Security shall be made at an office of a Paying Agent of the Company in the Borough of Manhattan, the City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

 

Subject to the preceding paragraphs, the Company may also from time to time designate one or more other offices or agencies where the Securities (including any coupons, if any) of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities (including any coupons, if any) of any series for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

Unless otherwise specified as contemplated by Section 3.1, the Trustee shall initially serve as Paying Agent.  The Paying Agent may make reasonable rules not inconsistent herewith for the performance of its functions.

 

Section 9.3.                                   Money for Securities to Be Held in Trust; Unclaimed Money .  If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of, or premium, if any, or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act.

 

If the Company is not acting as its own Paying Agent, the Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

 

(1)            hold all sums held by it for the payment of the principal of, or premium, if any, or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

(2)            give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal, premium, if any, or interest on the Securities; and

 

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(3)            at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.  If the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it in a separate trust fund.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of any principal, premium or interest or other amounts on any Security of any series and remaining unclaimed for two years after such principal, premium, if any, or interest or other amounts has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security and coupon, if any, shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, or cause to be mailed to such Holder, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

Section 9.4.                                   Corporate Existence .  Subject to Article VII, the Company will at all times do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and its rights and franchises; provided that nothing in this Section 9.4 shall prevent the abandonment or termination of any right or franchise of the Company if, in the opinion of the Company, such abandonment or termination is in the best interests of the Company.

 

Section 9.5.                                   Insurance .  The Company covenants and agrees that it will maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations or through a program of self-insurance in such amounts and covering such risks as are consistent with sound business practice for corporations engaged in the same or a similar business similarly situated.

 

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Section 9.6.                                   Reports by the Company .  The Company covenants:

 

(a)  to file with the Trustee, within 30 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

(b)  to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture, as may be required from time to time by such rules and regulations; and

 

(c)  to transmit to all Holders of Securities within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 9.6, as may be required by rules and regulations prescribed from time to time by the Commission.

 

Section 9.7.                                   Annual Review Certificate .  The Company covenants and agrees to deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture.  For purposes of this Section 9.7, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.

 

Section 9.8.                                   Payment of Additional Amounts .  (a)  All payments in respect of the Securities shall be made without withholding or deduction for, or on account of, any taxes, assessments or other governmental charges (“relevant tax”) imposed or levied by or on behalf of the Commonwealth of Australia or any political subdivision or authority in or of the Commonwealth of Australia, unless the withholding or deduction is required by law.  In that event, the Company will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holder of the Securities, after such withholding or deduction, will equal the amount that the Holder

 

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would have received in respect of the Securities without such withholding or deduction.  However, the Company will pay no Additional Amounts:

 

(1)            to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities having some connection (whether present, past or future) with the Commonwealth of Australia or any political subdivision or authority of or in the Commonwealth of Australia, other than being a Holder, or the beneficial owner, of the Securities;

 

(2)            to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities not complying with any statutory requirements or not having made a declaration of non-residence in, or other lack of connection with, the Commonwealth of Australia or any political subdivision or authority of or in the Commonwealth of Australia or any similar claim for exemption, if the Company or its agent has provided the Holder, or the beneficial owner, of the Securities with at least 60 days’ prior written notice of an opportunity to comply with such statutory requirements or make a declaration or claim;

 

(3)            to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities having presented for payment more than 30 days after the date on which the payment in respect of the Securities first became due and payable, except to the extent that the Holder, or the beneficial owner, of the Securities would have been entitled to such Additional Amounts if the Holder or beneficial owner had presented the Securities for payment on any day within such 30-day period;

 

(4)            to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities having presented the Securities for payment in the Commonwealth of Australia, unless the Securities could not have been presented for payment elsewhere; or

 

(5)            to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities being an associate of the Company for purposes of Section 128F(6) of the Income Tax Assessment Act 1936 of the Commonwealth of Australia.

 

In addition, the Company will pay no Additional Amounts to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the payment in respect of the Securities to the extent such payment would, under the laws of the Commonwealth of Australia or any political subdivision or authority of or in the Commonwealth of Australia, be treated as being derived or received for tax purposes by a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to Additional Amounts had it been the Holder of the Securities.

 

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(b)  Any reference in this Indenture or any indenture supplemental hereto to principal or interest shall be deemed to also refer to any Additional Amount that may be payable under this Section 9.8.

 

Section 9.9.                                   Payment of Stamp Taxes .  The Company will pay or discharge or cause to be paid or discharged all stamp and similar taxes, if any, that may be imposed by the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein with respect to the execution or delivery of this Indenture or the Securities.

 

Section 9.10.                             Indemnification of Judgment Currency .  The Company shall indemnify the Trustee and any Holder of a Security against any loss incurred by the Trustee or such Holder, as the case may be, as a result of any judgment or order being given or made for any amount due under this Indenture or such Security and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than the currency in which such Security is denominated or payable, as the case may be (the “Specified Currency”), and as a result of any variation as between (i) the rate of exchange at which the Specified Currency amount is converted into the Judgment Currency for the purpose of such judgment or order and (ii) the spot rate of exchange in The City of New York at which the Trustee or such Holder, as the case may be, on the date of payment of such judgment or order is able to purchase the Specified Currency with the amount of the Judgment Currency actually received by the Trustee or such Holder.   The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.  The term “spot rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the Specified Currency.

 

Section 9.11.                             Waiver of Certain Covenants .  Company may omit in any particular instance to comply with any term, provision or condition set forth in Section 9.4 and 9.9 with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waive, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

 

ARTICLE X

 

REDEMPTION

 

Section 10.1.                             Applicability of Article .  (a)  Securities (including coupons, if any) of or within any series that are redeemable in whole or in part before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise

 

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specified as contemplated by Section 3.1 for Securities of any series) in accordance with this Article.

 

(b)  No Securities of any series will be redeemed before their Stated Maturity without the prior written approval of the Australian Prudential Regulation Authority, if approval is then required.

 

Section 10.2.                             Election to Redeem; Notice to Trustee .  The election of the Company to redeem any Securities, including coupons, if any, shall be evidenced by or pursuant to a Board Resolution or a Company Order.  In the case of any redemption at the election of the Company of less than all the Securities or coupons, if any, of any series having the same terms, the Company shall, at least 45 but not more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed.  In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (ii) pursuant to an election of the Company that is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.

 

Section 10.3.                             Selection of Securities to Be Redeemed .  Unless otherwise specified as contemplated by Section 3.1, if less than all the Securities (including coupons, if any) of a series with the same terms are to be redeemed, the Trustee, not more than 60 but at least 45 days prior to the Redemption Date, shall select the Securities of the series to be redeemed in such manner as the Trustee shall deem fair and appropriate.  The Trustee shall make the selection from Securities of the series that are Outstanding and that have not previously been called for redemption and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities, including coupons, if any, of that series or any integral multiple thereof) of the principal amount of Securities, including coupons, if any, of such series of a denomination larger than the minimum authorized denomination for Securities of that series.  The Trustee shall promptly notify the Company in writing of the Securities selected by the Trustee for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.  If the Securities (including coupons, if any) of a series having different issue dates, interest rates and maturities (whether or not originally issued in a Periodic Offering) are to be redeemed, the Company in its discretion may select the particular Securities or portions thereof to be redeemed and shall notify the Trustee thereof by such time prior to the relevant redemption date or dates as the Company and the Trustee may agree.

 

For purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities (including coupons, if any) shall relate, in the case of any Securities (including coupons, if any) redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities (including coupons, if any) that has been or is to be redeemed.

 

72



 

Section 10.4.                             Notice of Redemption .  Unless otherwise specified as contemplated by Section 3.1, notice of redemption shall be given in the manner provided in Section 1.6 not less than 30 days nor more than 60 days prior to the Redemption Date to the Holders of the Securities to be redeemed.

 

All notices of redemption shall state:

 

(1)            the Redemption Date;

 

(2)            the Redemption Price;

 

(3)            if less than all the Outstanding Securities of a series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Security or Securities to be redeemed;

 

(4)            in case any Security is to be redeemed in part only, the notice that  relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the holder will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed;

 

(5)            the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment for the Redemption Price;

 

(6)            that Securities of the series called for redemption and all unmatured coupons, if any, appertaining thereto must be surrendered to the Paying Agent to collect the Redemption Price;

 

(7)            that, on the Redemption Date, the Redemption Price will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;

 

(8)            that the redemption is for a sinking fund, if such is the case;

 

(9)            that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished; and

 

(10)      the CUSIP number, if any, of such Securities.

 

Notice of redemption of Securities to be redeemed shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.  Any notice given in the manner provided herein shall be conclusively

 

73



 

presumed to have been given, whether or not such notice is actually received.  Failure to mail any notice or defect in the mailed notice or the mailing thereof in respect of any Security shall not affect the validity of the redemption of any other Security.

 

Section 10.5.                             Deposit of Redemption Price .  On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, which it may not do in the case of a sinking fund payment under Article XI, segregate and hold in trust as provided in Section 9.3) an amount of money in the currency or currencies (including currency units or composite currencies) in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.1 for the Securities of such series) sufficient to pay on the Redemption Date the Redemption Price of, and (unless the Redemption Date shall be an Interest Payment Date) interest accrued to the Redemption Date on, all Securities or portions thereof which are to be redeemed on that date.

 

Unless any Security by its terms prohibits any sinking fund payment obligation from being satisfied by delivering and crediting Securities (including Securities redeemed otherwise than through a sinking fund), the Company may deliver such Securities to the Trustee for crediting against such payment obligation in accordance with the terms of such Securities and this Indenture.

 

Section 10.6.                             Securities Payable on Redemption Date .  Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the coupons for any such interest appertaining to any Bearer Security so to be redeemed, except to the extent provided below, shall be void.  Except as provided in the next succeeding paragraph, upon surrender of any such Security, including coupons, if any, for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date and the principal of, and premium, if any, on such Bearer Securities shall be payable only at an office or agency located outside the United States and its possessions (except as otherwise provided in Section 9.2) and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of coupons for such interest; and provided, further, that, unless otherwise specified as contemplated by Section 3.1, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.7.

 

If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from the Redemption Price an amount equal to the face amount of

 

74



 

all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless.  If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside of the United States (except as otherwise provided pursuant to Section 9.2) and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of those coupons.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

Section 10.7.                             Securities Redeemed in Part .  Upon surrender of a Security that is redeemed in part at any Place of Payment therefor (with, if the Company or the Trustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company shall execute and the Trustee shall authenticate and deliver to the Holder of that Security, without service charge a new Security or Securities of the same series, having the same form, terms and Stated Maturity, in any authorized denomination equal in aggregate principal amount to the unredeemed portion of the principal amount of the Security surrendered.

 

Section 10.8.                             Optional Redemption Due to Changes in Australian Tax Treatment .  The Securities of any series may be redeemed, in whole but not in part, at the Redemption Price specified in the form of Security for such series established pursuant to Section 3.1, with any accrued interest to the Redemption Date, at any time within 90 days of the Company requesting and receiving an opinion of competent tax counsel to the effect that there has been, an amendment to, change in or announced proposed change in the laws or regulations under those laws, of the Commonwealth of Australia or any political subdivision or authority thereof or therein; a judicial decision interpreting, applying or clarifying those laws or regulations; an administrative pronouncement or action that represents an official position, including a clarification of an official position, of the governmental authority or regulatory body making the administrative pronouncement or taking any action; or a threatened challenge asserted in connection with an audit of the Company, or any of its subsidiaries, or a threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Securities, which amendment or change is adopted or which proposed change, decision or pronouncement is announced or which action, clarification or challenge occurs on or after the date of the applicable prospectus supplement or term sheet, following which there is more than an insubstantial risk that any payment on the Securities is, or will be, subject to withholding or deduction in respect of any taxes, assessments or other governmental charges; provided, however, that, if at the time there is available to the Company the opportunity to eliminate, within the

 

75



 

90-day period, the risk that any payment on the Securities is, or will be, subject to such withholding or deduction by taking some ministerial action, such as filing a form or making an election, or pursuing some other similar reasonable measure that in the Company’s sole judgment has or will cause no adverse effect on the Company or any of the Company’s Subsidiaries or Affiliates and will involve no material cost, the Company will pursue that measure in lieu of redeeming the Securities of any series pursuant to this Section 10.8.

 

ARTICLE XI

 

SINKING FUNDS

 

Section 11.1.                             Applicability of Article .  The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1 for Securities of such series.

 

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.”  If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2.  Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

 

Section 11.2.                             Satisfaction of Sinking Fund Payments with Securities .  The Company (i) may deliver Outstanding Securities of a series (other than any previously called for redemption) together, in the case of Bearer Securities of such series, with all unmatured coupons appertaining thereto and (ii) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited.  Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

 

Section 11.3.                             Redemption of Securities for Sinking Fund .  Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 11.2 and will also deliver to the Trustee any Securities to be so

 

76



 

delivered.  Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 10.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 10.4.  Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 10.5 and 10.6.  This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one instrument.

 

77



 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.

 

 

 

WESTPAC BANKING CORPORATION

 

 

 

 

 

 

 

 

By:

/s/ Lewis E. Love, Jr.

 

 

Name:  Lewis E. Love, Jr.

 

 

Title:   Vice President & Head of Legal and

 

 

Compliance — Americas and Europe

 

 

 

 

 

 

 

 

THE CHASE MANHATTAN BANK,

 

 

as Trustee

 

 

 

 

 

 

 

 

By:

/s/ Annette Marsula

 

 

Name: Annette Marsula

 

 

Title:   Assistant Vice President

 

78




Exhibit 4.2

 

EXECUTION COPY

 

 

 

 

AMENDED AND RESTATED

SUBORDINATED INDENTURE

 

between

 

WESTPAC BANKING CORPORATION

 

and

 

JPMORGAN CHASE BANK,

FORMERLY THE CHASE MANHATTAN BANK

 

Dated as of July 1, 1999

and Amended and Restated as of May 15, 2003

 

Providing for Issuance of Subordinated
Debt Securities in Series

 

 



 

Reconciliation and tie between this Amended and Restated Subordinated Indenture, dated as of July 1, 1999 and Amended and Restated as of May 15, 2003, and the Trust Indenture Act of 1939, as amended.

 

Trust Indenture Act of 1939 
Section

 

Subordinated Indenture 
Section

 

 

 

 

310 (a)

(1)

 

6.11

(a)

(2)

 

6.11

(a)

(3)

 

TIA

(a)

(4)

 

Not Applicable

(b)

 

 

6.9; 6.11; TIA

 

 

 

 

311 (a)

 

 

TIA

(b)

 

 

TIA

 

 

 

 

3.12(a)

 

 

6.7

(b)

 

 

TIA

(c)

 

 

TIA

 

 

 

 

313 (a)

 

 

6.1; TIA

(b)

 

 

TIA

(c)

 

 

6.6; TIA

(d)

 

 

6.6

 

 

 

 

314 (a)

 

 

9.6; 9.7; TIA

(b)

 

 

Not applicable

(c)

(1)

 

1.2

(c)

(2)

 

1.2

(c)

(3)

 

Not Applicable

(d)

 

 

Not Applicable

(e)

 

 

1.2

(f)

 

 

TIA

 

 

 

 

315 (a)

 

 

TIA

(b)

 

 

6.5

(c)

 

 

6.1

(d)

(1)

 

TIA

(d)

(2)

 

TIA

(d)

(3)

 

TIA

(e)

 

 

TIA

 

 

 

 

316(a)

 (last sentence)

 

1.1

 

i



 

Trust Indenture Act of 1939 
Section

 

Subordinated Indenture 
Section

 

 

 

 

(a)

(1)(A)

 

5.8

(a)

(1)(B)

 

5.7

(b)

 

 

5.2; 5.10

(c)

 

 

TIA

 

 

 

 

317(a)

(1)

 

5.3

(a)

(2)

 

5.4

(b)

 

 

9.3

 

 

 

 

318(a)

 

 

1.11

(b)

 

 

TIA

(c)

 

 

1.11; TIA

 

This reconciliation and tie section does not constitute part of the Subordinated Indenture.

 

ii



 

Table of Contents

 

 

 

Page

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 1.1.

 

Definitions

 

1

Section 1.2.

 

Compliance Certificates and Opinions

 

10

Section 1.3.

 

Form of Documents Delivered to Trustee

 

11

Section 1.4.

 

Acts of Holders

 

11

Section 1.5.

 

Notices, etc., to Trustee and Company

 

14

Section 1.6.

 

Notice to Holders; Waiver

 

14

Section 1.7.

 

Headings and Table of Contents

 

15

Section 1.8.

 

Successors and Assigns

 

15

Section 1.9.

 

Separability

 

16

Section 1.10.

 

Benefits of Indenture

 

16

Section 1.11.

 

Governing Law

 

16

Section 1.12.

 

Legal Holidays

 

16

Section 1.13.

 

No Recourse Against Others

 

17

Section 1.14.

 

Submission to Jurisdiction: Appointment of Agent for Service of Process

 

17

Section 1.15.

 

Restatement of Original Indenture

 

18

 

 

 

 

 

ARTICLE II

 

SECURITY FORMS

 

Section 2.1.

 

Forms Generally

 

18

Section 2.2.

 

Form of Trustee’s Certificate of Authentication

 

18

Section 2.3.

 

Securities in Global Form

 

19

Section 2.4.

 

Form of Legend for Securities in Global Form

 

19

 

 

 

 

 

ARTICLE III

 

THE SECURITIES

 

 

 

 

 

Section 3.1.

 

Amount Unlimited; Issuable in Series

 

20

Section 3.2.

 

Denominations

 

24

Section 3.3.

 

Execution, Authentication, Delivery and Dating

 

24

Section 3.4.

 

Temporary Securities

 

27

Section 3.5.

 

Registration, Transfer and Exchange

 

28

Section 3.6.

 

Replacement Securities

 

32

Section 3.7.

 

Payment of Interest; Interest Rights Preserved

 

33

Section 3.8.

 

Persons Deemed Owners

 

35

Section 3.9.

 

Cancellation

 

36

 

iii



 

Table of Contents

(continued)

 

 

 

 

 

Page

 

 

 

 

 

Section 3.10.

 

Computation of Interest

 

36

Section 3.11.

 

Currency and Manner of Payment in Respect of Securities

 

36

Section 3.12.

 

Appointment and Resignation of Exchange Rate Agent

 

42

Section 3.13.

 

CUSIP Numbers

 

43

 

 

 

 

 

ARTICLE IV

 

SATISFACTION AND DISCHARGE

 

Section 4.1.

 

Termination of Company’s Obligations Under the Indenture

 

43

Section 4.2.

 

Application of Trust Funds

 

45

Section 4.3.

 

Repayment to Company

 

45

Section 4.4.

 

Indemnity for Government Obligations

 

45

 

 

 

 

 

ARTICLE V

 

EVENTS OF DEFAULT, DEFAULTS AND REMEDIES

 

Section 5.1.

 

Events of Default and Defaults

 

45

Section 5.2.

 

Acceleration; Rescission and Annulment

 

47

Section 5.3.

 

Collection of Indebtedness and Suits for Enforcement by Trustee

 

48

Section 5.4.

 

Trustee May File Proofs of Claim

 

49

Section 5.5.

 

Trustee May Enforce Claims Without Possession of Securities

 

49

Section 5.6.

 

Delay or Omission Not Waiver

 

50

Section 5.7.

 

Waiver of Past Defaults

 

50

Section 5.8.

 

Control by Majority

 

50

Section 5.9.

 

Limitation on Suits by Holders

 

50

Section 5.10.

 

Rights of Holders to Receive Payment

 

51

Section 5.11.

 

Application of Money Collected

 

51

Section 5.12.

 

Restoration of Rights and Remedies

 

52

Section 5.13.

 

Rights and Remedies Cumulative

 

52

Section 5.14.

 

Waiver of Stay, Extension or Usury Laws

 

52

Section 5.15.

 

Waiver of Sovereign Immunity

 

52

 

 

 

 

 

ARTICLE VI

 

THE TRUSTEE

 

 

 

 

 

Section 6.1.

 

Rights, Duties and Responsibilities of Trustee

 

54

Section 6.2.

 

Trustee May Hold Securities

 

55

Section 6.3.

 

Money Held in Trust

 

55

Section 6.4.

 

Trustee’s Disclaimer

 

55

 

iv



 

Table of Contents

(continued)

 

 

 

 

 

Page

 

 

 

 

 

Section 6.5.

 

Notice of Defaults

 

56

Section 6.6.

 

Reports by Trustee to Holders

 

56

Section 6.7.

 

Security Holder Lists

 

56

Section 6.8.

 

Compensation and Indemnity

 

57

Section 6.9.

 

Replacement of Trustee

 

58

Section 6.10.

 

Acceptance of Appointment by Successor

 

59

Section 6.11.

 

Eligibility; Disqualification

 

60

Section 6.12.

 

Merger, Conversion, Consolidation or Succession to Business

 

61

Section 6.13.

 

Appointment of Authenticating Agent

 

62

Section 6.14.

 

Preferential Collection of Claims Against Company

 

63

 

 

 

 

 

ARTICLE VII

 

CONSOLIDATION, MERGER OR SALE BY THE COMPANY

 

Section 7.1.

 

Consolidation, Merger or Sale of Assets Permitted

 

64

 

 

 

 

 

ARTICLE VIII

 

SUPPLEMENTAL INDENTURES

 

Section 8.1.

 

Supplemental Indentures Without Consent of Holders

 

64

Section 8.2.

 

With Consent of Holders

 

66

Section 8.3.

 

Compliance with Trust Indenture Act

 

68

Section 8.4.

 

Execution of Supplemental Indentures

 

68

Section 8.5.

 

Effect of Supplemental Indentures

 

68

Section 8.6.

 

Reference in Securities to Supplemental Indentures

 

68

 

 

 

 

 

ARTICLE IX

 

COVENANTS

 

Section 9.1.

 

Payment of Principal, Premium, if any, and Interest

 

69

Section 9.2.

 

Maintenance of Office or Agency

 

69

Section 9.3.

 

Money for Securities to Be Held in Trust; Unclaimed Money

 

70

Section 9.4.

 

Corporate Existence

 

71

Section 9.5.

 

Insurance

 

72

Section 9.6.

 

Reports by the Company

 

72

Section 9.7.

 

Annual Review Certificate

 

72

Section 9.8.

 

Payment of Additional Amounts

 

73

Section 9.9.

 

Payment of Stamp Taxes

 

74

Section 9.10.

 

Indemnification of Judgment Currency

 

74

Section 9.11.

 

Waiver of Certain Covenants

 

74

 

v



 

Table of Contents

(continued)

 

 

 

 

 

Page

 

ARTICLE X

 

REDEMPTION

 

Section 10.1.

 

Applicability of Article

 

75

Section 10.2.

 

Election to Redeem; Notice to Trustee

 

75

Section 10.3.

 

Selection of Securities to Be Redeemed

 

75

Section 10.4.

 

Notice of Redemption

 

76

Section 10.5.

 

Deposit of Redemption Price

 

77

Section 10.6.

 

Securities Payable on Redemption Date

 

78

Section 10.7.

 

Securities Redeemed in Part

 

78

Section 10.8.

 

Optional Redemption Due to Changes in Australian Tax Treatment

 

79

 

 

 

 

 

ARTICLE XI

 

SINKING FUNDS

 

Section 11.1.

 

Applicability of Article

 

80

Section 11.2.

 

Satisfaction of Sinking Fund Payments with Securities

 

80

Section 11.3.

 

Redemption of Securities for Sinking Fund

 

80

 

 

 

 

 

ARTICLE XII

 

SOLVENCY AND SUBORDINATION OF SECURITIES

 

Section 12.1.

 

Solvency

 

81

Section 12.2.

 

Subordination and Payment Over of Proceeds Upon Winding Up

 

81

Section 12.3.

 

Notice to Trustee

 

84

Section 12.4.

 

Trustee Not Fiduciary for Senior Creditors of the Company

 

85

Section 12.5.

 

Rights of Trustee as Senior Creditor of the Company; Preservation of Trustee’s Rights

 

85

Section 12.6.

 

Article Applicable to Paying Agents

 

86

Section 12.7.

 

Provisions Solely to Define Relative Rights

 

86

Section 12.8.

 

No Set-Off

 

86

 

vi



 

AMENDED AND RESTATED SUBORDINATED INDENTURE (this “ Indenture ”), dated as of May 15, 2003, between WESTPAC BANKING CORPORATION ABN 33 007 457 141, a bank incorporated in Australia and registered in New South Wales under the Corporations Act 2001 of Australia (the “ Company ”) having its registered office at 60 Martin Place, Sydney, New South Wales 2000, Australia, and having an office in The City of New York at 575 Fifth Avenue, New York, New York 10017-2422, and JPMorgan Chase Bank, formerly The Chase Manhattan Bank, a New York banking corporation as Trustee hereunder (the “ Trustee ”).

 

Recitals

 

WHEREAS, the Company and the Trustee have heretofore become parties to a Subordinated Indenture, dated as of July 1, 1999 (the “ Original Indenture ”), providing for the issuance of unsecured subordinated debentures, notes or other evidences of indebtedness of the Company (“ Securities ”);

 

WHEREAS, the Company desires to amend and restate the Original Indenture in order to modify certain terms relating to subordination to comply with the applicable requirements of the Australian Prudential Regulation Authority relating to lower tier 2 capital;

 

WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of Securities to be issued in one or more series as herein provided;

 

WHEREAS, Section 8.1(5) of the Original Indenture permits the parties hereto to execute and deliver this Indenture to amend and restate the Original Indenture because there is no Security Outstanding under the Original Indenture; and

 

WHEREAS, all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of the Securities:

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION

 

Section 1.1.            Definitions . (a)  For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 



 
(1)           the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
 
(2)           all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
 
(3)           all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles used in the preparation of the Company’s audited financial statements and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles at the date of such computation;
 
(4)           the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
 
(5)           the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B or both”, not “A or B but not both”).
 

Affiliate ” of any specified Person means any Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

Agent ” means any Paying Agent or Registrar.

 

Authenticating Agent ” means any authenticating agent appointed by the Trustee pursuant to Section 6.13.

 

Authorized Newspaper ” means a newspaper of general circulation, in the official language of the country of publication or in the English language, customarily published on each Business Day whether or not published on Saturdays, Sundays or holidays. Whenever successive publications in an Authorized Newspaper are required hereunder they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers.

 

Authorized Officer ” means the Company’s Chairman of the Board, Managing Director, its Chief Financial Officer, any Group Executive, any General Manager, its Group Treasurer, its Group Financial Controller, its Head of Global Funding, its Head of

 

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Capital Management, any Senior Vice President, Senior Manager or any Vice President or such officers of equivalent status as may be designated from time to time by the Company, and any other person duly authorized from time to time by the Company.

 

Bearer Security ” means any Security issued hereunder which is payable to bearer.

 

Board ” or “ Board of Directors ” means the Board of Directors of the Company, or any duly authorized committee thereof.

 

Board Resolution ” means a copy of a resolution of the Board of Directors, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certificate, and delivered to the Trustee.

 

Business Day ”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or particular location are authorized or obligated by law or executive order to close.

 

Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

Company ” means the party named as the Company in the first paragraph of this Indenture until a successor shall have become such pursuant to the applicable provisions of this Indenture, and thereafter means such successors.

 

Company Order ” and “ Company Request ” mean, respectively, a written order or request signed in the name of the Company by an Authorized Officer.

 

Corporate Trust Office ” means the office of the Trustee in New York, New York at which at any particular time its corporate trust business shall be principally administered, which office at the date hereof is located at 4 New York Plaza, 15 th Floor, New York, New York 10004, Attention: Institutional Trust Services.

 

currency unit ”, for all purposes of this Indenture, shall include any composite currency.

 

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Depositary ”, when used with respect to the Securities of or within any series issuable or issued in whole or in part in global form, means the Person designated as Depositary by the Company pursuant to Section 3.1 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter shall mean or include each Person which is then a Depositary hereunder, and if at any time there is more than one such Person, shall be a collective reference to such Persons.

 

Dollar ” or “ $ ” means the coin or currency of the United States as at the time of payment is legal tender for the payment of public and private debts.

 

Government Obligations ” means securities which are ( i ) direct obligations of the United States or, if specified as contemplated by Section 3.1, the government which issued the currency in which the Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or ( ii ) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States or, if specified as contemplated by Section 3.1, such government which issued the foreign currency in which the Securities of such series are payable, for the payment of which the full faith and credit of the United States or such other government is pledged (whether by guaranty or otherwise), which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation evidenced by such depositary receipt.

 

Holder ” means, with respect to a Bearer Security, a bearer thereof or of a coupon appertaining thereto and, with respect to a Registered Security, a person in whose name such Registered Security is registered on the Register.

 

Indenture ” means this Subordinated Indenture as originally executed or as amended or supplemented from time to time and shall include the forms and terms of particular series of Securities established as contemplated hereunder.

 

Indexed Security ” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.

 

interest ”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

 

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Interest Payment Date ”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

Maturity ”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

Officer ” means any Authorized Officer, the President, any Executive Vice President, any Assistant Vice President, the Treasurer or the Secretary or Assistant Secretary of the Company.

 

Officers’ Certificate ” means a certificate signed by an Authorized Officer and which conforms to Section 1.2.

 

Opinion of Counsel ” means a written opinion of legal counsel, who may be ( i ) an attorney employed by the Company, ( ii ) Debevoise & Plimpton or ( iii ) other counsel designated by the Company who shall be reasonably acceptable to the Trustee.

 

Original Issue Discount Security ” means any Security which provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2.

 

Outstanding ”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(i)            Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)           Securities, or portions thereof, for whose payment or redemption money or Government Obligations in the necessary amount (without reinvestment) has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provisions therefor satisfactory to the Trustee have been made; and

 

(iii)          Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that

 

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such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

 

provided , however , that unless otherwise provided with respect to any Securities of any series pursuant to Section 3.1, in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver or are present at a meeting for quorum purposes hereunder, or whether sufficient funds are available for redemption or for any other purpose, and for the purpose of making the calculations required by Section 313 of the Trust Indenture Act, ( w ) the principal amount of any Original Issue Discount Securities that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 5.2, ( x ) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officers’ Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent, determined as of such date of original issuance, of the amount determined as provided in clause (w) above) of such Security, ( y ) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, and ( z ) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

 

Paying Agent ” means any Person authorized by the Company to pay the principal of, premium, if any, or interest and any other payments on any Securities on behalf of the Company; provided that, in no event may a Paying Agent be a domiciliary of Commonwealth of Australia or a person acting through an office in Commonwealth of Australia.

 

Periodic Offering ” means an offering of Securities of a series from time to time the specific terms of which Securities, including, without limitation, the rate or rates of

 

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interest or formula for determining the rate or rates of interest thereon, if any, the Maturity thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company upon the issuance of such Securities.

 

Person ” means any individual, corporation, estate, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.

 

Place of Payment ”, when used with respect to the Securities of or within any series, means the place or places where the principal of, premium, if any, and interest and any other payments on such Securities are payable as specified as contemplated by Sections 3.1 and 9.2.

 

Predecessor Security ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

Redemption Date ”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture and the Securities.

 

Redemption Price ”, when used with respect to any Security to be redeemed, in whole or in part, means the price at which it is to be redeemed pursuant to this Indenture and the Securities.

 

Registered Security ” means any Security issued hereunder and registered as to principal and interest in the Register.

 

Regular Record Date ” for the interest payable on any Interest Payment Date on the Securities of or within any series means the date specified for that purpose as contemplated by Section 3.1, which date shall be, unless otherwise specified pursuant to Section 3.1, the fifteenth day preceding such Interest Payment Date, whether or not such day shall be a Business Day.

 

Responsible Officer ”, when used with respect to the Trustee, shall mean any Vice President (whether or not designated by a number or a word or words added before or after the title “ Vice President ”), the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant Cashier, any Senior Trust Officer, any Trust Officer, any Assistant Trust Officer, the Controller, any Assistant Controller, or any officer of the Trustee customarily performing functions similar to those performed by the

 

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individuals who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject.

 

Security ” or “ Securities ” has the meaning stated in the first recital of this Indenture and more particularly means a Security or Securities of the Company issued, authenticated and delivered under this Indenture.

 

Special Record Date ” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.7.

 

Stated Maturity ”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or in a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

Subsidiary ” means any Person of which the Company at the time owns or controls, directly or indirectly, more than 50% of the shares of outstanding stock or other equity interests having general voting power under ordinary circumstances to elect a majority of the Board of Directors, managers or trustees, as the case may be, of such Person (irrespective of whether or not at the time stock of any other class or classes or other equity interests of such corporation shall have or might have voting power by reason of the happening of any contingency).

 

Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended and as in effect on the date of this Indenture, except as provided in Section 8.3.

 

Trustee ” means the party named as such in the first paragraph of this Indenture until a successor Trustee replaces it pursuant to the applicable provisions of this Indenture, and thereafter means such successor Trustee and if, at any time, there is more than one Trustee, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of that series.

 

United States ” means, unless otherwise specified with respect to the Securities of any series as contemplated by Section 3.1, the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

U.S. Person ” means, unless otherwise specified with respect to the Securities of any series as contemplated by Section 3.1, an individual citizen or resident of the United States, a corporation created or organized in or under the laws of the United States, any State thereof or the District of Columbia, or a partnership, estate or trust treated as a domestic partnership, estate or trust for United States federal income tax purposes.

 

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Winding Up ” means, any procedure whereby the Company may be wound up, dissolved or cease to exist as a body corporate and whether brought or instigated by the Trustee, a Holder or any other Person, but excludes any transaction permitted in accordance with Article VII hereof.

 

Yield to Maturity ” means the yield to maturity, calculated by the Company at the time of issuance of a series of Securities or, if applicable, at the most recent determination of interest on such series, in accordance with accepted financial practice.

 

(b)           The following terms shall have the meanings specified in the Sections referred to opposite such term below:

 

Term

 

Section

 

 

 

“Act”

 

1.4 (a)

 

 

 

“Additional Amount”

 

9.8 (a)

 

 

 

“Authorized Agent”

 

1.14

 

 

 

“Claims”

 

6.8(b)

 

 

 

“Component Currency”

 

3.11(h)

 

 

 

“Conversion Date”

 

3.11(d)

 

 

 

“Conversion Event”

 

3.11(h)

 

 

 

“Default”

 

5.1

 

 

 

“Defaulted Interest”

 

3.7(b)

 

 

 

“Election Date”

 

3.11(h)

 

 

 

“Euro”

 

3.11(h)

 

 

 

“Event of Default”

 

5.1

 

 

 

“Exchange Rate Agent”

 

3.11(h)

 

 

 

“Exchange Rate Officers’ Certificate”

 

3.11(h)

 

 

 

“Expiration Date”

 

1.4(g)

 

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Term

 

Section

 

 

 

“Foreign Currency”

 

3.11(h)

 

 

 

“Judgment Currency”

 

9.10

 

 

 

“Market Exchange Rate”

 

3.11(h)

 

 

 

“Register”

 

3.5

 

 

 

“Registrar”

 

3.5

 

 

 

“Specified Amount”

 

3.11(h)

 

 

 

“Specified Currency”

 

9.10

 

 

 

“Valuation Date”

 

3.11(c)

 

Section 1.2.            Compliance Certificates and Opinions .  Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than pursuant to Section 9.7) shall include:

 

(1)           a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;
 
(2)           a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
(3)           a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her, as the case may be, to express an informed opinion as to whether or not such condition or covenant has been complied with; and

 

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(4)           a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
 

Section 1.3.                                      Form of Documents Delivered to Trustee .  In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.  Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations as to such matters are erroneous.

 

Any certificate or opinion of an Officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, unless such officer or counsel, as the case may be, knows that the certificate or opinions or representations as to such accounting matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 1.4.            Acts of Holders .  (a)  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company.  Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive (subject to Section 6.1) in favor of the Trustee and the Company, if made in the manner provided in this Section.

 

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(b)           Without limiting the generality of this Section, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depositary that is a Holder of a Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Security may provide its proxy or proxies to the beneficial owners of interests in any such Security through such Depositary’s standing instructions and customary practices.

 

(c)           The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof.  Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority.  The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

(d)           The ownership of Bearer Securities may be proved by the production of such Bearer Securities or by a certificate executed by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory.

 

The Trustee and the Company may assume that such ownership of any Bearer Security continues until ( i ) another such certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, ( ii ) such Bearer Security is produced to the Trustee by some other Person, ( iii ) such Bearer Security is surrendered in exchange for a Registered Security or ( iv ) such Bearer Security is no longer outstanding.  The ownership of Bearer Securities may also be proved in any other manner which the Trustee deems sufficient.

 

(e)           The ownership of Registered Securities shall be proved by the Register.

 

(f)            Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

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(g)           If the Company shall solicit from the Holders of any series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, fix in advance a record date for the determination of Holders of such series entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so.  If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of such series of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities of such series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities of such series shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless taken on or prior to the applicable Expiration Date (as defined below) by Holders of the requisite amount of Outstanding Securities of such series on such record date.  Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite amount of Outstanding Securities on the date such action is taken.  Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Notes in the manner set forth in Section 1.6.

 

Expiration Date ” means, with respect to any record date set pursuant to this Section 1.4, the date designated by the Company; provided, that the Company may, from time to time, change the Expiration Date to any earlier or later day, but no such change shall be effective unless notice of the proposed new Expiration Date is given to the Trustee, and to each Holder of Securities of the applicable series in the manner set forth in Section 1.6 on or prior to the existing Expiration Date.  If an Expiration Date is not designated with respect to any record date pursuant to this Section, the Company shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph.  Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

(h)           Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

 

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(i)            The Company and the Trustee may make reasonable rules for action by or at a meeting of Holders.

 

Section 1.5.                                      Notices, etc., to Trustee and Company .  Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)           the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention:  Capital Markets Fiduciary Services, or
 
(2)           the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at Westpac Banking Corporation, 60 Martin Place, Sydney, New South Wales 2000, Australia or at any other address previously furnished in writing to the Trustee by the Company.
 

Section 1.6.                                       Notice to Holders; Waiver .  Where this Indenture provides for notice to Holders of any event, ( i ) if any of the Securities affected by such event are Registered Securities, such notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms of such Securities expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Register, within the time prescribed for the giving of such notice and, ( ii ) if any of the Securities affected by such event are Bearer Securities, notice to the Holders thereof shall be sufficiently given (unless otherwise herein or in the terms of such Bearer Securities expressly provided) if published once in an Authorized Newspaper in New York, New York, and in such other city or cities, if any, as may be specified as contemplated by Section 3.1.

 

In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein.  In any case where notice is given to Holders by publication, neither the failure to publish such notice, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.  Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

 

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If by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice as provided above, then such notification as shall be made with the approval of the Trustee (such approval not to be unreasonably withheld) shall constitute a sufficient notification for every purpose hereunder.  If it is impossible or, in the opinion of the Trustee, impracticable to give any notice by publication in the manner herein required, then such publication in lieu thereof as shall be made with the approval of the Trustee shall constitute a sufficient publication of such notice.

 

In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder.  Neither failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders of Registered Securities as provided above.

 

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

 

In any case where the Company mails a notice to Holders, a copy must be sent to the Trustee and in any case where the Trustee mails a notice to Holders, copies must be sent to the Company.

 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be equivalent of such notice.  Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

Section 1.7.            Headings and Table of Contents .  The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 1.8.            Successors and Assigns .  All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

 

Any act or proceeding that is required or permitted by any provision of this Indenture and that is authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like

 

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force and effect by the like board, committee or officer of any Person that shall at the time be the successor or assign of the Company.

 

Section 1.9.            Separability .  In case any provision of this Indenture or the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 1.10.          Benefits of Indenture .  Nothing in this Indenture or in the Securities, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the holders of Senior Indebtedness, any Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 1.11.          Governing Law .  UNLESS OTHERWISE PROVIDED WITH RESPECT TO ANY SECURITIES OF ANY SERIES PURSUANT TO SECTION 3.1, THIS INDENTURE, THE SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE; EXCEPT FOR SECTIONS 12.1, 12.2 AND 12.8 WHICH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW SOUTH WALES, COMMONWEALTH OF AUSTRALIA.  This Indenture is subject to the Trust Indenture Act and if any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required by the Trust Indenture Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified, or to be excluded, as the case may be, whether or not such provision of this Indenture refers expressly to such provision of the Trust Indenture Act.

 

Section 1.12.          Legal Holidays .  Unless otherwise provided with respect to any Security or Securities pursuant to Section 3.1, in any case where any Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity or other payment date of any Security shall not be a Business Day at any Place of Payment, then, notwithstanding any other provision of this Indenture or any Security or coupon, payment of principal, premium, if any or interest or other payments need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on such date; provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity or other payment date, as the case may be.

 

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In any case where any notice to Holders is required to be given by a certain date and such date shall not be a Business Day, then (notwithstanding any other provision of this Indenture or the Securities) such notice need not be made on such date, but may be made on the next succeeding day that is a Business Day with the same force and effect as if made on the date such notice was originally required to be made.

 

Section 1.13.          No Recourse Against Others .  No past, present or future director, officer, employee, agent, member, manager, trustee or stockholder, as such, of the Company or any successor Person shall have any liability for any obligations of the Company or any successor Person, either directly or through the Company or any successor Person, under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation, whether by virtue of any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise.  By accepting a Security, each Holder agrees to the provisions of this Section 1.13 and waives and releases all such liability.  Such waiver and release shall be part of the consideration for the issue of the Securities.

 

Section 1.14.          Submission to Jurisdiction: Appointment of Agent for Service of Process .  The Company hereby appoints the Counsel, Legal Services at the office of the Company located in The City of New York at the address set forth in the first paragraph of this Indenture as its authorized agent (the “ Authorized Agent ”) upon which process may be served in any legal action or proceeding against it with respect to its obligations under this Indenture or the Securities of any series (including, without limitation, any action based on or arising out of the United States federal securities law), instituted in any federal or state court in the Borough of Manhattan, The City of New York, by the Trustee or the Holder of any Security, and the Company hereby expressly accepts the jurisdiction of any such court in respect of any such action.  The Company hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding and any objection to such suit, action or proceeding whether on the grounds of venue, residence or domicile.  A final judgment (that is a judgment obtained after exhaustion of all appeals and expiration of all time to appeal) in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  The Counsel, Legal Services of the Company hereby accepts such appointment, which shall be irrevocable unless and until the appointment of a successor authorized agent for service of process, and such successor’s acceptance of such appointment, shall have occurred, and the Company and such Authorized Agents will take any and all actions, including the filing of any and all documents and instruments, that may be necessary to continue such appointment or appointments in full force and effect as aforesaid.  Service of process upon an Authorized Agent will be deemed, in every respect, effective service of process upon the Company.  Notwithstanding the foregoing, any action against the Company arising out of or based on any Security or this Indenture may also be instituted by the Holder of such Security in any court in the Commonwealth of Australia, and the

 

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Company hereby expressly accepts the jurisdiction of any such court in respect of any such action.

 

Section 1.15.          Restatement of Original Indenture .  This Indenture amends and restates the Original Indenture in its entirety and shall become effective as of the date hereof.

 

ARTICLE II

 

SECURITY FORMS

 

Section 2.1.            Forms Generally .  The Securities of each series and the coupons, if any, to be attached thereto shall be in substantially such form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any applicable law, rule or regulation or with the rules or usage of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities and coupons, if any, as evidenced by their execution of the Securities and coupons, if any.  If temporary Securities of any series are issued as permitted by Section 3.4, the form thereof also shall be established as provided in the preceding sentence.  If the forms of Securities and coupons, if any, of any series are established by, or by action taken pursuant to, a Board Resolution, a copy of the Board Resolution together with an appropriate record of any such action taken pursuant thereto, including a copy of the approved form of Securities or coupons, if any, shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication and delivery of such Securities.

 

Unless otherwise specified as contemplated by Section 3.1, Bearer Securities shall have interest coupons attached.

 

The definitive Securities and coupons, if any, shall be typeset, printed, lithographed or engraved on steel engraved borders or may be produced in any other manner or medium, all as determined by the officers executing such Securities and coupons, if any, as evidenced by their execution of such Securities and coupons, if any.

 

Section 2.2.            Form of Trustee’s Certificate of Authentication .  Subject to Section 6.13, the Trustee’s certificate of authentication shall be in substantially the following form:

 

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This is one of the Securities of the series designated herein and issued under the within-mentioned Indenture.

 

JPMorgan Chase Bank, as Trustee

 

 

 

 

 

Dated:

 

 

 

By:

 

 

 

 

Authorized Signature

 

 

Section 2.3.            Securities in Global Form .  If Securities of or within a series are issuable in whole or in part in global form, any such Security may provide that it shall represent the aggregate or specified amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced or increased to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby, shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4.  Subject to the provisions of Section 3.3 and, if applicable, Section 3.4, the Trustee shall deliver and redeliver any security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order.  Any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.2 hereof and need not be accompanied by an Opinion of Counsel.

 

The provisions of the last paragraph of Section 3.3 shall apply to any Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.3.

 

Notwithstanding the provisions of Section 2.1 and 3.7, unless otherwise specified as contemplated by Section 3.1, payment of principal of, premium, if any, and interest on any Security in permanent global form shall be made to the registered Holder thereof.

 

Section 2.4.            Form of Legend for Securities in Global Form .  Unless otherwise provided with respect to any Securities of any series pursuant to Section 3.1 or required by the Depositary, any Security of such series in global form authenticated and delivered hereunder shall bear a legend in substantially the following form:

 

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THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.  UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.  EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS SECURITY WILL BE IN GLOBAL FORM, SUBJECT TO THE FOREGOING.

 

ARTICLE III

 

THE SECURITIES

 

Section 3.1.            Amount Unlimited; Issuable in Series .  (a)  The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.  The Securities may be issued from time to time in one or more series.

 

(b)                                  The following matters shall be established with respect to each series of Securities issued hereunder:  ( i ) by a Board Resolution, ( ii ) by action taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or determined in the manner provided, in an Officers’ Certificate or ( iii ) in one or more indentures supplemental hereto:

 

(1)           the title of the Securities of the series (which title shall distinguish the Securities of the series from all other series of Securities);
 
(2)           any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (which limit shall not pertain to Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6, or 10.7);
 
(3)           the date or dates on which the principal of and premium, if any, on the Securities of the series is payable or the method of determination and/or extension of such date or dates; and the amount or amounts of such principal and premium, if any, payments or the method of determination thereof;

 

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(4)           the rate or rates at which the Securities of the series shall bear interest, if any, or the method of calculating and/or resetting such rate or rates of interest, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, the Interest Payment Dates on which any such interest shall be payable and, with respect to Registered Securities, the Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date;
 
(5)           the place or places where the principal of, premium, if any, and interest, if any, on Securities of the series shall be payable;
 
(6)           the period or periods within which, the price or prices at which, the currency or currencies (including currency units) in which, and the other terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than as provided in Section 10.3, the manner in which the particular Securities of such series (if less than all Securities of such series are to be redeemed) are to be selected for redemption;
 
(7)           the right, if any, to extend the interest payment periods and any conditions to the payment or resumption of payment of interest before, during or after any such extension;
 
(8)           the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or upon the happening of a specified event or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the other terms and conditions upon which, Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
 
(9)           if other than denominations of $1,000 and any integral multiple thereof (if Registered Securities), and if other than the denomination of $5,000 and any integral multiple thereof (if Bearer Securities), the denominations in which Securities of the series shall be issuable;
 
(10)         if other than Dollars, the currency or currencies (including currency unit or units) in which the principal of, premium, if any, and interest, if any, or other payments, if any, on the Securities of the series shall be payable, or in which the Securities of the series shall be denominated, and the particular provisions applicable thereto in accordance with, in addition to, or in lieu of the provisions of Section 3.11;

 

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(11)         if the payments of principal of, or premium, if any, or interest, if any, or other payments, if any, on the Securities of the series are to be made, at the election of the Company or a Holder, in a currency or currencies (including currency unit or units) other than that in which such Securities are denominated or designated to be payable, the currency or currencies (including currency unit or units) in which such payments are to be made, the terms and conditions of such payments and the manner in which the exchange rate with respect to such payments shall be determined, and the particular provisions applicable thereto in accordance with, in addition to, or in lieu of the provisions of Section 3.11;
 
(12)         if the amount of payments of principal of, or premium, if any, interest, if any, or other payments, if any, on the Securities of the series shall be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on the price of one or more commodities, derivatives or securities; one or more securities, derivatives or commodities exchange indices or other indices; a currency or currencies (including currency unit or units) other than that in which the Securities of the series are denominated or designated to be payable; or any other variable or the relationship between any variables or combination of variables), the index, formula or other method by which such amounts shall be determined;
 
(13)         if other than the principal amount thereof, the portion of the principal amount of such Securities of the series or other amount which shall be payable upon declaration of acceleration thereof pursuant to Section 5.2 or the method by which such portion or amount shall be determined;
 
(14)         if other than as provided in Section 3.7, the Person to whom any interest on any Registered Security of the series shall be payable and the manner in which, or the Person to whom, any interest on any Bearer Securities of the series shall be payable;
 
(15)         if the principal amount payable at the Maturity of any Securities of the series will not be determinable as of one or more dates prior to Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date hereunder or thereunder, or, if other than as provided in the definition of the term “Outstanding”, which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
 
(16)         provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

 

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(17)         any deletions from, modifications of or additions to the Events of Default set forth in Section 5.1 or covenants of the Company set forth in Article IX pertaining to the Securities of the series;
 
(18)         whether Securities of the series shall be issuable as Registered Securities or Bearer Securities (with or without interest coupons), or both, and any restrictions applicable to the offering, sale or delivery of Bearer Securities and, if other than as provided in Section 3.5, the terms upon which Bearer Securities of a series may be exchanged for Registered Securities of the same series and vice versa;
 
(19)         the date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;
 
(20)         the forms of the Securities and coupons, if any, of the series;
 
(21)         if other than the Trustee, the identity of the Registrar and any Paying Agent;
 
(22)         any terms which may be related to warrants issued by the Company in connection with, or for the purchase of, Securities of such series, including whether and under what circumstances the Securities of any series may be used toward the exercise price of any such warrants;
 
(23)         the designation of the initial Exchange Rate Agent, if any;
 
(24)         if the Securities of the series shall be issued in whole or in part in global form, (i) the Depositary for such global Securities, (ii) the form of any legend in addition to or in lieu of that in Section 2.4 which shall be borne by such global Securities, (iii) whether beneficial owners of interests in any Securities of the series in global form may exchange such interests for certificated Securities of such series and of like tenor of any authorized form and denomination, and (iv) if other than as provided in Section 3.5, the circumstances under which any such exchange may occur;
 
(25)         if the Securities of the series will be governed by, and the extent to which such Securities will be governed by, any law other than the laws of the state of New York and, with respect to Sections 12.1, 12.2 and 12.8, the laws of New South Wales, Commonwealth of Australia; and
 
(26)         any other terms of the series, including any terms which may be required by or advisable under the laws or regulations of the United States or

 

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advisable (as determined by the Company) in connection with the marketing of Securities of the series.
 

(c)           The terms applicable to the Securities of any one series and coupons, if any, appertaining to any Bearer Securities of such series need not be identical but may vary as may be provided (i) by a Board Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to Section 3.3) set forth, or determined in the manner provided, in the related Officers’ Certificate or (iii) in an indenture supplemental hereto.  All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.

 

(d)           If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of such Board Resolution shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth, or providing the manner for determining, the terms of the Securities of such series, and an appropriate record of any action taken pursuant thereto in connection with the issuance of any Securities of such series shall be delivered to the Trustee prior to the authentication and delivery thereof.

 

Section 3.2.            Denominations .  Unless otherwise provided as contemplated by Section 3.1, any Registered Securities of a series shall be issuable in denominations of $1,000 and any integral multiple thereof and any Bearer Securities of a series shall be issuable in the denomination of $5,000 and any integral multiple thereof.

 

Section 3.3.            Execution, Authentication, Delivery and Dating .  Securities shall be executed on behalf of the Company by an Authorized Officer. The signature of such officer on the Securities may be manual or facsimile.  The coupons, if any, of Bearer Securities shall bear the facsimile signature of an Authorized Officer.

 

Securities and coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to be officers or to hold such offices prior to the authentication and delivery of such Securities or were not officers or did not hold such offices at the date of such Securities.

 

At any time and from time to time, the Company may deliver Securities, together with any coupons appertaining thereto, of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however, that in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities

 

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from time to time in accordance with such other procedures (including, without limitation, the receipt by the Trustee of oral or electronic instructions from the Company or its duly authorized agents, promptly confirmed in writing) acceptable to the Trustee as may be specified by or pursuant to a Company Order delivered to the Trustee prior to the time of the first authentication of Securities of such series.

 

If the form or terms of the Securities of a series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 315(a) through (d) of the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of Counsel substantially to the effect that,

 

(1)           if the forms of such Securities and any coupons have been established by or pursuant to a Board Resolution as permitted by Section 2.1, such forms have been established in conformity with the provisions of this Indenture;
 
(2)           if the terms of such Securities and any coupons have been established by or pursuant to a Board Resolution as permitted by Section 3.1, such terms have been, or in the case of Securities of a series offered in a Periodic Offering, will be, established in conformity with the provisions of this Indenture, subject in the case of Securities offered in a Periodic Offering, to any conditions specified in such Opinion of Counsel, and all conditions precedent to the authentication and delivery of the Securities and coupons have been complied with; and
 
(3)           such Securities together with any coupons appertaining thereto, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles and except further as may be limited by or subject to certain exceptions and qualifications specified in such Opinion of Counsel, including in the case of any Securities denominated in a Foreign Currency, ( A ) requirements that a claim with respect to any Securities denominated other than in Dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into Dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or ( B ) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States.

 

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Notwithstanding that such form or terms have been so established, the Trustee shall have the right to decline to authenticate such Securities if, in the written opinion of counsel to the Trustee (which counsel may be an employee of the Trustee) reasonably acceptable to the Company, the issue of such Securities pursuant to this Indenture will adversely affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.  Notwithstanding the generality of the foregoing, the Trustee will not be required to authenticate Securities denominated in a Foreign Currency if the Trustee reasonably believes that it would be unable to perform its duties with respect to such Securities.

 

Notwithstanding the provisions of Section 3.1 and of the two preceding paragraphs, if all of the Securities of any series are not to be issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise required pursuant to the two preceding paragraphs in connection with the authentication of each Security of such series if such documents, with appropriate modifications to cover such future issuances, are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

With respect to Securities of a series offered in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable, in connection with the first authentication of Securities of such series.

 

If the Company shall establish pursuant to Section 3.1 that the Securities of a series are to be issued in whole or in part in global form, then, unless otherwise provided with respect to such Securities pursuant to Section 3.1, the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more Securities in global form that ( i ) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by such Security or Securities in global form, ( ii ) shall be registered, if a Registered Security, in the name of the Depositary for such Security or Securities in global form or the nominee of such Depositary, ( iii ) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and ( iv ) shall bear the legend set forth in Section 2.4.

 

Unless otherwise established pursuant to Section 3.1, each Depositary designated pursuant to Section 3.1 for a Registered Security in global form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation. 

 

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Neither the Company nor the Trustee shall have any responsibility to determine if the Depositary is so registered.

 

Each Depositary shall enter into an agreement with the Trustee governing the respective duties and rights of such Depositary and the Trustee with regard to Securities issued in global form.

 

Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 3.1.

 

No Security or coupon appertaining thereto shall be entitled to any benefits under this Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of one of the authorized signatories of the Trustee or an Authenticating Agent and no coupon shall be valid until the Security to which it appertains has been so authenticated.  Such signature upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered under this Indenture and is entitled to the benefits of this Indenture.  Except as permitted by Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled.

 

Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.9 together with a written statement (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to the benefits of this Indenture.

 

Section 3.4.                                    Temporary Securities .  Pending the preparation of definitive Securities of any series, the Company may execute and, upon Company Order, the Trustee shall authenticate and deliver temporary Securities of such series which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor and form, with or without coupons, of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities and coupons, if any.  In the case of Securities of any series, all or a portion of such temporary Securities may be in global form.

 

Except in the case of temporary Securities in global form, each of which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be

 

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prepared without unreasonable delay.  After preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company pursuant to Section 9.2 in a Place of Payment for such series, without charge to the Holder.  Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and of like tenor; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that no definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security unless the Trustee shall have received from the person entitled to receive the definitive Bearer Security a certificate substantially in the form approved in or pursuant to the Board Resolutions relating thereto and such delivery shall occur only outside the United States.  Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series except as otherwise specified as contemplated by Section 3.1.

 

Section 3.5.                                    Registration, Transfer and Exchange .  The Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency to be maintained by the Company in accordance with Section 9.2 in a Place of Payment or in such other place or medium as may be specified pursuant to Section 3.1 a register (the “ Register ”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and the registration of transfers of Registered Securities.  The Register shall be in written form or any other form capable of being converted into written form within a reasonable time.  Unless otherwise provided as contemplated by Section 3.1, the Trustee is hereby appointed “Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided.  The Company may have one or more co-Registrars.

 

Upon surrender for registration of transfer of any Registered Security of any series at the office or agency maintained pursuant to Section 9.2 in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount.

 

Unless otherwise provided as contemplated by Section 3.1, Bearer Securities (except for any temporary global Bearer Securities) or any coupons appertaining thereto (except for coupons attached to any temporary global Bearer Security) shall be transferable by delivery.

 

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Unless otherwise provided as contemplated by Section 3.1, at the option of the Holder, Registered Securities of any series (except a Registered Security in global form) may be exchanged for other Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount containing identical terms and provisions, upon surrender of the Registered Securities to be exchanged at such office or agency.  Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.  Unless otherwise specified as contemplated by Section 3.1, Bearer Securities may not be issued in exchange for Registered Securities.

 

Unless otherwise specified as contemplated by Section 3.1, at the option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities (if the Securities of such series are issuable in registered form) or Bearer Securities (if Bearer Securities of such series are issuable in more than one denomination and such exchanges are permitted by such series) of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining.  If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless.  If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 9.2, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States.  Notwithstanding the foregoing, in case any Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series after the close of business at such office or agency on ( i ) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date or ( ii ) any Special Record Date and before the opening of business at such office or agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date of payment, as the case may be (or, if such coupon is so surrendered with such Bearer Security, such coupon shall be returned to the person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security

 

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issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon, when due in accordance with the provisions of this Indenture.

 

Unless otherwise specified pursuant to Section 3.1 with respect to a series of Securities or as otherwise provided below in this Section 3.5, owners of beneficial interests in Securities of such series represented by a Security issued in global form will not be entitled to have Securities of such series registered in their names, will not receive or be entitled to receive physical delivery of Securities of such series in certificated form and will not be considered the Holders or owners thereof for any purposes hereunder.  Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in certificated form in the circumstances described below, a Security in global form representing all or a portion of the Securities of a series may not be transferred or exchanged except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.

 

If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series notifies the Company that it shall no longer be eligible under Section 3.3, the Company shall appoint a successor Depositary with respect to the Securities of such series.  Unless otherwise provided as contemplated by Section 3.1, if a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.1(b) (25) shall no longer be effective with respect to the Securities of such series and the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.

 

The Company may at any time in its sole discretion determine that Securities of a series issued in global form shall no longer be represented by such a Security or Securities in global form.  In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of certificated Securities of such series of like tenor, shall authenticate and deliver, Securities of such series of like tenor in certificated form, in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities of such series of like tenor in global form in exchange for such Security or Securities in global form.

 

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If specified by the Company pursuant to Section 3.1 with respect to a series of Securities, the Depositary for such series may surrender a Security in global form of such series in exchange in whole or in part for Securities of such series in certificated form on such terms as are acceptable to the Company and such Depositary.  Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service charge,

 

(1)                                   to each Person specified by such Depositary a new certificated Security or Securities of the same series of like tenor, of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Security in global form; and
 
(2)                                   to such Depositary a new Security in global form of like tenor in a denomination equal to the difference, if any, between the principal amount of the surrendered Security in global form and the aggregate principal amount of certificated Securities delivered to Holders thereof.
 

Upon the exchange of a Security in global form for Securities in certificated form, such Security in global form shall be cancelled by the Trustee.  Unless expressly provided with respect to the Securities of any series that such Security may be exchanged for Bearer Securities, Securities in certificated form issued in exchange for a Security in global form pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Security in global form shall instruct the Trustee.  The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.

 

Whenever any Securities are surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

All Securities issued upon any registration of transfer or upon any exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing.

 

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Unless otherwise provided as contemplated by Section 3.1, no service charge shall be made for any registration of transfer or for any exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration or transfer or exchange of Securities, other than exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.

 

Unless otherwise provided as contemplated by Section 3.1, the Company shall not be required ( i ) to issue, register the transfer of, or exchange any Securities for a period beginning at the opening of business l5 days before any selection for redemption of Securities of like tenor and of the series of which such Security is a part and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of Securities of like tenor and of such series to be redeemed, ( ii ) to register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part or ( iii ) to exchange any Bearer Security so selected for redemption, except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be simultaneously surrendered for redemption.

 

The foregoing provisions of this Section 3.5 relating to registration, transfer and exchange may be modified, supplemented or superseded with respect to any series of Securities by a Board Resolution or in one or more indentures supplemental hereto.

 

Section 3.6.                                    Replacement Securities .  If a mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, together with, in proper cases, such security or indemnity as may be required by the Company or the Trustee to save each of them harmless, the Company shall execute and the Trustee shall authenticate and deliver a replacement Registered Security, if such surrendered Security was a Registered Security, or a replacement Bearer Security with coupons corresponding to the coupons appertaining to the surrendered Security, if such surrendered Security was a Bearer Security, of the same series and date of maturity, if the Trustee’s requirements are met.

 

If there shall be delivered to the Company and the Trustee ( i ) evidence to their satisfaction of the destruction, loss or theft of any Security or Security with a destroyed, lost or stolen coupon and ( ii ) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a replacement Registered Security, if such Holder’s claim

 

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appertains to a Registered Security, or a replacement Bearer Security with coupons corresponding to the coupons appertaining to the destroyed, lost or stolen Bearer Security or the Bearer Security to which such lost, destroyed or stolen coupon appertains, if such Holder’s claim appertains to a Bearer Security, of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding with coupons corresponding to the coupons, if any, appertaining to the destroyed, lost or stolen Security.

 

In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security or coupon, pay such Security or coupon; provided, however, that payment of principal of and any premium or interest on Bearer Securities shall, except as otherwise provided in Section 9.2, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 3.1, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.

 

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee, its agents and counsel) connected therewith.

 

Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security and its coupon, if any, or the destroyed, lost or stolen coupon, shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.

 

Section 3.7.                                    Payment of Interest; Interest Rights Preserved .  (a)  Unless otherwise provided as contemplated by Section 3.1, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency maintained for such purpose pursuant to Section 9.2; provided, however, that at the option of the Company, interest on any series of Registered Securities that bear interest may be paid ( i ) by check mailed to the address of

 

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the Person entitled thereto as it shall appear on the Register of Holders of Securities of such series or ( ii ) to a Holder of $1,000,000 or more in aggregate principal amount of Securities by wire transfer to an account maintained by the Person entitled thereto as specified in the Register of Holders of Securities of such series.

 

Unless otherwise provided as contemplated by Section 3.1, ( A ) ( i ) interest, if any, on Bearer Securities shall be paid only against presentation and surrender of the coupons for such interest installments as are evidenced thereby as they mature and ( ii ) principal, original issue discount, if any, and premium, if any, on Bearer Securities shall be paid only against presentation and surrender of such Securities; in either case at the office of a Paying Agent located outside the United States, unless the Company shall have otherwise instructed the Trustee in writing provided that any such instruction for payment in the United States does not cause any Bearer Security to be treated as a “registration-required obligation” under United States laws and regulations, ( B ) the interest, if any, on any temporary Bearer Security shall be paid, as to any installment of interest evidenced by a coupon attached thereto only upon presentation and surrender of such coupon as provided in clause (A) above and, as to other installments of interest, only upon presentation of such Security for notation thereon of the payment of such interest and ( C ) if at the time a payment of principal of premium, if any, or interest, if any, on a Bearer Security or coupon shall become due, the payment of the full amount so payable at the office or offices of all the Paying Agents outside the United States is illegal or effectively precluded because of the imposition of exchange controls or other similar restrictions on the payment of such amount in Dollars, then the Company may instruct the Trustee to make such payment at a Paying Agent located in the United States, provided that provision for such payment in the United States would not cause such Bearer Security to be treated as a “registration-required obligation” under United States laws and regulations.

 

(b)                                  Unless otherwise provided as contemplated by Section 3.1, any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any interest payment date (herein called “ Defaulted Interest ”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

 

(1)                                   The Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.  The Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the trustee for such deposit prior to the date of the proposed payment, such money when

 

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deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause (1) provided.  Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of such Registered Securities of such series at his address as it appears in the Register, not less than 10 days prior to such Special Record Date.  Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names such Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
 
(2)                                   The Company may make payment of any Defaulted Interest to the Persons in whose names such Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a specified date in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (2), such manner of payment shall be deemed practicable by the Trustee.
 

(c)                                   Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 3.8.                                    Persons Deemed Owners .  Prior to due presentment of any Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of, and premium, if any, and (subject to Section 3.7) interest and any other payments on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security shall be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

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The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Bearer Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

None of the Company, the Trustee or any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.  Notwithstanding the foregoing, with respect to any Security in global form, nothing herein shall prevent the Company or the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any Depositary (or its nominee), as a Holder, with respect to such Security in global form or impair, as between such Depositary and owners of beneficial interests in such Security in global form, the operation of customary practices governing the exercise of the rights of such Depositary (or its nominee) as Holder of such Security in global form.

 

Section 3.9.                                    Cancellation .  The Company at any time may deliver Securities and coupons to the Trustee for cancellation.  The Registrar and any Paying Agent shall forward to the Trustee any Securities and coupons surrendered to them for replacement, for registration of transfer, or for exchange or payment.  The Trustee shall cancel all Securities and coupons surrendered for replacement, for registration of transfer, or for exchange, payment, redemption or cancellation and may destroy cancelled Securities and coupons and, if so destroyed, shall issue a certificate of destruction to the Company.  The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.

 

Section 3.10.                              Computation of Interest .  Except as otherwise specified as contemplated by Section 3.1, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 3.11.                              Currency and Manner of Payment in Respect of Securities .  (a) Unless otherwise specified with respect to any Securities pursuant to Section 3.1, with respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of, and premium, if any, interest, if any, and other amounts, if any, on any Registered or Bearer Security of such series will be made in the currency or currencies or currency unit or units in which such Registered Security or Bearer Security, as the case may be, is payable.  The provisions of

 

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this Section 3.11, including without limitation any defined terms specified herein, may be modified or superseded in whole or in part pursuant to Section 3.1 with respect to any Securities.

 

(b)                                  It may be provided pursuant to Section 3.1, with respect to Registered Securities of any series, that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of, or premium, if any, or interest, if any, on such Registered Securities in any of the currencies or currency units which may be designated for such election by delivering to the Trustee (or the applicable Paying Agent) a written election with signature guarantees and in the applicable form established pursuant to Section 3.1, not later than the close of business on the Election Date immediately preceding the applicable payment date.  If a Holder so elects to receive such payments in any such currency or currency unit, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (or any applicable Paying Agent) for such series of Registered Securities (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date, and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect to which the Company has deposited funds pursuant to Article IV or with respect to which a notice of redemption has been given by or on behalf of the Company).  Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee (or any applicable Paying Agent) not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant currency or currency unit as provided in Section 3.11(a).  The Trustee (or the applicable Paying Agent) shall notify the Company and the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.

 

(c)                                   If the election referred to in paragraph (b) above has been provided for with respect to any Registered Securities of a series pursuant to Section 3.1, then, unless otherwise specified pursuant to Section 3.1 with respect to any such Registered Securities, not later than the fourth Business Day after the Election Date for each payment date for such Registered Securities, the Exchange Rate Agent will deliver to the Company a written notice specifying, in the currency or currencies or currency unit or units in which Registered Securities of such series are payable, the respective aggregate amounts of principal of, premium, if any, and interest, if any, on such Registered Securities to be paid on such payment date, and specifying the amounts in such currency or currencies or currency unit or units so payable in respect of such Registered Securities as to which the Holders of Registered Securities denominated in any currency or currencies or currency unit or units shall have elected to be paid in another currency or currency unit as provided in paragraph (b) above.  If the election referred to in

 

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paragraph (b) above has been provided for with respect to any Registered Securities of a series pursuant to Section 3.1, and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 3.1, on the second Business Day preceding such payment date the Company will deliver to the Trustee (or the applicable Paying Agent) an Exchange Rate Officers’ Certificate in respect of the Dollar, Foreign Currency or Currencies or other currency unit payments to be made on such payment date.  Unless otherwise specified pursuant to Section 3.1, the Dollar, Foreign Currency or Currencies or other currency unit amount receivable by Holders of Registered Securities who have elected payment in a currency or currency unit as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect on the second Business Day (the “ Valuation Date ”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.

 

(d)                                  If a Conversion Event occurs with respect to a Foreign Currency or any other currency unit in which any of the Securities are denominated or payable otherwise than pursuant to an election provided for pursuant to paragraph (b) above, then, unless otherwise specified pursuant to Section 3.1, with respect to each date for the payment of principal of, premium, if any, and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency or such other currency unit occurring after the last date on which such Foreign Currency or such other currency unit was used (the “ Conversion Date ”), the Dollar shall be the currency of payment for use on each such payment date (but such Foreign Currency or such other currency unit that was previously the currency of payment shall, at the Company’s election, resume being the currency of payment on the first such payment date preceded by 15 Business Days during which the circumstances which gave rise to the Dollar becoming such currency of payment no longer prevail).  Unless otherwise specified pursuant to Section 3.1, the Dollar amount to be paid by the Company to the Trustee or any applicable Paying Agent and by the Trustee or any applicable Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a Foreign Currency that is a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.

 

(e)                                   Unless otherwise specified pursuant to Section 3.1, if the Holder of a Registered Security denominated in any currency or currency unit shall have elected to be paid in another currency or currency unit or in other currencies as provided in paragraph (b) above, and ( i ) a Conversion Event occurs with respect to any such elected currency or currency unit, such Holder shall receive payment in the currency or currency unit in which payment would have been made in the absence of such election and ( ii ) if a Conversion Event occurs with respect to the currency or currency unit in which payment would have been made in the absence of such election, such Holder shall receive

 

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payment in Dollars as provided in paragraph (d) of this Section 3.11 (but, subject to any contravening valid election pursuant to paragraph (b) above, the elected payment currency or currency unit, in the case of the circumstances described in clause (i) above, or the payment currency or currency unit in the absence of such election, in the case of the circumstances described in clause (ii) above, shall, at the Company’s election, resume being the currency or currency unit of payment with respect to Holders who have so elected, but only with respect to payments on payment dates preceded by 15 Business Days during which the circumstances which gave rise to such currency or currency unit, in the case of the circumstances described in clause (i) above, or the Dollar, in the case of the circumstances described in clause (ii) above, becoming the currency or currency unit, as applicable, of payment, no longer prevail).

 

(f)                                     The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by the Exchange Rate Agent by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.

 

(g)                                  The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and, subject to the provisions of paragraph (h) below, shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency (as each such term is defined in paragraph (h) below) into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.

 

(h)                                  For purposes of this Section 3.11, the following terms shall have the following meanings:

 

A “ Component Currency ” shall mean any currency which, on the Conversion Date, was a component currency of the relevant currency unit.

 

Conversion Event ” shall mean the cessation of use of ( i ) a Foreign Currency both by the government of the country which issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community or ( ii ) any currency unit for the purposes for which it was established.

 

Election Date ” shall mean the Regular Record Date for the applicable series of Registered Securities as specified pursuant to Section 3.1 by which the written election referred to in Section 3.11(b) may be made.

 

Euro ” means the lawful currency of the participating member states of the European Union that adopt, or have adopted, a single currency in accordance

 

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with the Treaty establishing the European Community, as amended by the Treaty on European Union signed February 7, 1992.

 

Exchange Rate Agent ,” when used with respect to Securities of or within any series, shall mean, unless otherwise specified with respect to any Securities pursuant to Section 3.1, a New York Clearing House bank designated pursuant to Section 3.1 or Section 3.12.

 

Exchange Rate Officer’s Certificate ” shall mean a certificate setting forth ( i ) the applicable Market Exchange Rate or the applicable bid quotation and ( ii ) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount in the relevant currency or currency unit), payable with respect to a Security of any series on the basis of such Market Exchange Rate or the applicable bid quotation, signed by any Authorized Officer or by any other Officer.

 

Foreign Currency ” shall mean any currency issued by the government or governments of one or more countries other than the United States or by any recognized confederation or association of such governments and shall include the Euro.

 

Market Exchange Rate ” shall mean, unless otherwise specified with respect to any Securities pursuant to Section 3.1, as of any date of determination, ( i ) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.1 for the Securities of the relevant series, ( ii ) for any conversion of Dollars into any Foreign Currency, the noon buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and ( iii ) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent.  Unless otherwise specified with respect to any Securities pursuant to Section 3.1, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or

 

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more major banks in New York City, London or other principal market for such currency or currency unit in question (which may include any such bank acting as Trustee under this Indenture), or such other quotations as the Exchange Rate Agent shall deem appropriate.  Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in order to make payments in respect of such securities.

 

A “ Specified Amount ” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which such Component Currency represented in the relevant currency unit on the Conversion Date.  If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion.  If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single currency, and such amount shall thereafter be a Specified Amount and such single currency shall thereafter be a Component Currency.  If after the Conversion Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by specified amounts of such two or more currencies, the sum of which, at the Market Exchange Rate of such two or more currencies on the date of such replacement, shall be equal to the Specified Amount of such former Component Currency and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies.  If, after the Conversion Date of the relevant currency unit, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.

 

All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee (and any applicable

 

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Paying Agent) and all Holders of Securities denominated or payable in the relevant currency, currencies or currency units.  The Exchange Rate Agent shall promptly give written notice to the Company and the Trustee of any such decision or determination.

 

In the event that the Company determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company will promptly give written notice thereof to the Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying Agent) will promptly thereafter give notice in the manner provided in Section 1.6 to the affected Holders) specifying the Conversion Date.  In the event the Company so determines that a Conversion Event has occurred with respect to any currency unit in which Securities are denominated or payable, the Company will promptly give written notice thereof to the Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent (and the Trustee (or such Paying Agent) will promptly thereafter give notice in the manner provided in Section 1.6 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date.  In the event the Company determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company will similarly give written notice to the Trustee (or any applicable Paying Agent) and to the Exchange Rate Agent.

 

The Trustee of the appropriate series of Securities shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company or the Exchange Rate Agent.

 

Section 3.12.                              Appointment and Resignation of Exchange Rate Agent .  (a) Unless otherwise specified pursuant to Section 3.1, if and so long as the Securities of any series ( i ) are denominated in a currency or currency unit other than Dollars or ( ii ) may be payable in a currency or currency unit other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.  The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 3.11 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued currency or currencies or currency unit or units into the applicable payment currency or currency unit for the payment of principal, premium, if any, and interest, if any, pursuant to Section 3.11.

 

(b)                                  No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a

 

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written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Exchange Rate Agent.

 

(c)                                   If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 3.1, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same currency or currencies or currency unit or units).

 

Section 3.13.                              CUSIP Numbers .  The Company in issuing Securities may use “CUSIP” numbers (if then generally in use), and if so, the Trustee may use the CUSIP numbers in notices of redemption or exchange as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number printed in the notice or on the Securities, that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption or exchange shall not be affected by any defect or omission of such CUSIP numbers.  The Company will promptly notify the Trustee of any change in CUSIP numbers known to an Officer of the Company.

 

ARTICLE IV

 

SATISFACTION AND DISCHARGE

 

Section 4.1.                                    Termination of Company’s Obligations Under the Indenture .  This Indenture shall upon Company Request cease to be of further effect with respect to Securities of or within any series and any coupons appertaining thereto (except as to any surviving rights of registration of transfer or exchange of such Securities and replacement of such Securities which may have been lost, stolen or mutilated as herein expressly provided for) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities and any coupons appertaining thereto when:

 

(1)                                   either
 
(A)                               all such Securities previously authenticated and delivered and all coupons appertaining thereto (other than ( i ) such coupons appertaining to Bearer Securities surrendered in exchange for Registered Securities and maturing after such exchange, surrender of which is not required or has been waived as provided

 

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in Section 3.5, ( ii ) such Securities and coupons which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6, ( iii ) such coupons appertaining to Bearer Securities called for redemption and maturing after the relevant Redemption Date, surrender of which has been waived as provided in Section 10.6 and ( iv ) such Securities and coupons for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 9.3) have been delivered to the Trustee for cancellation; or
 
(B)                                 all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation
 

(i)                                      have become due and payable, or

 

(ii)                                   will become due and payable at the Stated Maturity of the principal thereof within one year, or

 

(iii)                                if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds (which may be held in an account insured by the Federal Deposit Insurance Corporation) in trust for the purpose an amount in cash, Government Obligations or a combination thereof in the currency or currencies or currency unit or units in which the Securities of such series are payable, sufficient to pay and discharge (without reinvestment) the entire indebtedness on such Securities and such coupons not theretofore delivered to the Trustee for cancellation, for principal, premium, if any, and interest, with respect thereto, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(2)                                   the Company has paid or caused to be paid all other sums then payable hereunder by the Company; and
 
(3)                                   the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Article relating to the satisfaction and discharge of this Indenture as to such series have been complied with.

 

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Notwithstanding the satisfaction and discharge of this Indenture, the obligation of the Company to the Trustee and any predecessor Trustee under Section 6.8, the obligations of the Company to any Authenticating Agent under Section 6.13 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 4.2 and the last paragraph of Section 9.3 shall survive.

 

Section 4.2.                                    Application of Trust Funds .  Subject to the provisions of the last paragraph of Section 9.3, all money and Government Obligations deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any and any interest for whose payment such money has been deposited with or received by the Trustee, but such money need not be segregated from other funds except to the extent required by law.

 

Section 4.3.                                    Repayment to Company .  The Trustee (and any Paying Agent) shall promptly pay to the Company upon Company Request any excess money or securities held by them at any time.  Such Company Request shall specifically set forth the amount of such excess and the Trustee shall be fully protected and shall incur no liability in reliance on such Company Request.

 

Section 4.4.                                    Indemnity for Government Obligations .  The Company shall pay, and shall indemnify the Trustee against, any tax, fee or other charge imposed on or assessed against Government Obligations deposited pursuant to this Article or the principal and interest received on such Government Obligations.

 

ARTICLE V

 

EVENTS OF DEFAULT, DEFAULTS AND REMEDIES

 

Section 5.1.                                    Events of Default and Defaults .  (a)  An “Event of Default” occurs with respect to the Securities of any series if (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(1)                                   a court of competent jurisdiction enters ( A ) a decree or order for relief in respect of the Company in an involuntary case or proceeding involving a Winding Up of the Company or ( B ) a decree or order relating to a Winding Up of the Company; provided that in any such case, such decree or order will necessarily result in a Winding Up of the Company; or

 

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(2)                                   the Company ( A ) commences a voluntary case or proceeding under any applicable law involving a Winding Up of the Company or any other case or proceeding whereby the Company may be wound up, dissolved or cease to exist as a body corporate, ( B ) consents to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable law involving a Winding Up of the Company or to the commencement of any such case or proceeding against it or ( C ) files a petition or answer or consent seeking such relief under any applicable law, or the Company consents to the filing of such petition; and provided that in each such case a liquidator under the Corporations Act 2001 of Australia (but not including a provisional liquidator) has been appointed and such event will necessarily result in a Winding Up of the Company; or
 
(3)                                   any other Event of Default provided as contemplated by Section 3.1 with respect to Securities of that series.
 

(b)                                  A “Default” occurs with respect to Securities of any series if (whatever the reason for such Default and whether it shall be occasioned by the provisions of Article XII or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(1)                                   an Event of Default specified in Section 5.1(a) occurs or a court of competent jurisdiction enters or a proceeding shall have been commenced by any person other than the Company for a decree or order appointing a custodian, receiver, liquidator, statutory manager, controller, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, and such decree, proceeding or order shall be continuing and not rescinded, suspended or stayed for a period of 60 consecutive days, or the Company consents to such an appointment or makes a general assignment for the benefit of its creditors;
 
(2)                                   the Company defaults in the payment of interest on any Security of that series or any coupon appertaining thereto or any Additional Amount payable with respect to any Security of that series as specified pursuant to Section 9.8 (subject to Section 3.1) when the same becomes due and payable and such default continues for a period of 30 days;
 
(3)                                   the Company defaults in the payment of the principal of, or any premium on, any Security of that series when the same becomes due and payable at its Maturity or on redemption or otherwise, or in the payment of a mandatory sinking fund payment when and as due by the terms of the Securities of that series and, in each case, such default continues for a period of 7 days;

 

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(4)                                   the Company defaults in the performance of, or breaches, any covenant or warranty of the Company in this Indenture with respect to any Security of that series (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), and such default or breach continues for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
 
(5)                                   any other Default provided, as contemplated by Section 3.1, with respect to Securities of that series.
 

Section 5.2.                                    Acceleration; Rescission and Annulment .  If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable, provided that payment of all such amounts shall remain subordinated to the extent provided in Article XII.

 

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of at least a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

 

(1)                                   the Company has paid or deposited with the Trustee a sum sufficient to pay
 
(A)                               all overdue interest on all Securities of that series,
 
(B)                                 the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,

 

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(C)                                 to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
 
(D)                                all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
 
(2)                                   all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.7.
 

No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

Section 5.3.                                    Collection of Indebtedness and Suits for Enforcement by Trustee .  The Company covenants that if:

 

(1)                                   there is a default in the payment of any interest on any Security or coupon, if any, when such interest becomes due and payable and such default continues for a period of 30 days, or
 
(2)                                   there is a default in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of 7 days,
 

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities or coupons, if any, the whole amount then due and payable on such Securities for principal, premium, if any, and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal, premium, if any, and on any overdue interest, at the rate or rates prescribed therefor in such Securities or coupons, if any, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, provided, however, that payment of all such amounts shall remain subordinated to the extent provided in Article XII.

 

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities of such series, wherever situated; provided,

 

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however, that payment of all such amounts shall remain subordinated to the extent provided in Article XII.

 

If a Default or Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein; provided, that rights of the Holders of Securities and the Trustee to receive any cash, property or securities as the result of such proceedings shall be subordinated to the extent and under the circumstances provided in Article XII.

 

Section 5.4.                                    Trustee May File Proofs of Claim .  In case of the pendency of any Winding Up of the Company or any other receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of any overdue principal, premium, interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding.  In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the trustee, its agents and counsel, any other amounts due the Trustee under Section 6.8.

 

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

 

Section 5.5.                                    Trustee May Enforce Claims Without Possession of Securities .  All rights of action and claims under this Indenture or the Securities may be prosecuted and

 

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enforced by the Trustee, in its own name and as trustee of an express trust, without the possession of any of the Securities or the production thereof in any proceeding relating thereto.

 

Section 5.6.                                    Delay or Omission Not Waiver .  No delay or omission by the Trustee or any Holder of any Securities to exercise any right or remedy accruing upon an Event of Default or a Default shall impair any such right or remedy or constitute a waiver of or acquiescence in any such Event of Default.

 

Section 5.7.                                    Waiver of Past Defaults .  The Holders of at least a majority in aggregate principal amount of Outstanding Securities of any series by notice to the Trustee may waive on behalf of the Holders of all Securities of such series a past Default or Event of Default with respect to that series and its consequences except a Default or Event of Default ( i ) in the payment of the principal of, or premium, if any, or interest on any Security of such series or any coupon appertaining thereto or ( ii ) in respect of a covenant or provision hereof which pursuant to Section 8.2 cannot be amended or modified without the consent of the Holder of each Outstanding Security of such series adversely affected.  Upon any such waiver, such Default or Event of Default shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.  In case of any such waiver, the Company, the Trustee and the Holders shall be restored to their former positions and rights hereunder and under the Securities of such series, respectively.

 

Section 5.8.                                    Control by Majority .  The Holders of at least a majority in aggregate principal amount of the Outstanding Securities of each series affected (with each such series voting as a class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it with respect to Securities of that series; provided, however, that ( i ) the Trustee may refuse to follow any direction that conflicts with law or this Indenture, ( ii ) the Trustee may refuse to follow any direction that is unduly prejudicial to the rights of the Holders of Securities of such series not consenting, or that would in the good faith judgment of the Trustee have a substantial likelihood of involving the Trustee in personal liability and ( iii ) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

Section 5.9.                                    Limitation on Suits by Holders .  No Holder of any Security of any series or any coupons appertaining thereto shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

(1)                                   the Holder has previously given written notice to the Trustee of a continuing Event of Default or Default with respect to the Securities of that series;

 

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(2)                                   the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series have made a written request to the Trustee to institute proceedings in respect of such Event of Default or Default in its own name as Trustee hereunder;
 
(3)                                   such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense to be, or which may be, incurred by the Trustee in pursuing the remedy;
 
(4)                                   the Trustee for 60 days after its receipt of such notice, request and the offer of indemnity has failed to institute any such proceedings; and
 
(5)                                   during such 60 day period, the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of that series have not given to the Trustee a direction inconsistent with such written request.
 

No one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.

 

Section 5.10.                              Rights of Holders to Receive Payment .  Notwithstanding any other provision of this Indenture, but subject to Section 9.2 and Article XII, the right of any Holder of a Security or coupon to receive payment of principal of, and premium, if any, and (subject to Sections 3.5 and 3.7) interest on the Security, on or after the respective due dates expressed in the Security (or, in case of redemption, on the redemption dates), and the right of any Holder of a coupon to receive payment of interest due as provided in such coupon, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.

 

Section 5.11.                              Application of Money Collected .  If the Trustee collects any money pursuant to this Article, it shall, subject to the provisions of Article XII, pay out the money in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, premium, if any, or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

First :  to the Trustee for amounts due under Section 6.8;

 

Second :  to Holders of Securities and coupons in respect of which or for the benefit of which such money has been collected for amounts due and unpaid on such Securities for principal, premium, if any, and interest, ratably, without

 

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preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and

 

Third :  to the Company.

 

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 5.11.  At least 15 days before such record date, the Trustee shall mail to each Holder and the Company a notice that states the record date, the payment date and the amount to be paid.

 

Section 5.12.                              Restoration of Rights and Remedies .  If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

Section 5.13.                              Rights and Remedies Cumulative .  Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 5.14.                              Waiver of Stay, Extension or Usury Laws .  The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury or other similar law wherever enacted, now or at any time hereafter in force, that would prohibit or forgive the Company from paying all or any portion of the principal of or premium, if any, or interest on the Securities contemplated herein or in the Securities or that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 5.15.                              Waiver of Sovereign Immunity .  To the extent that the Company or any properties, assets or revenues of the Company may have or may hereafter become

 

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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 setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or 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 any Security or any series of this Indenture, the Company, to the extent permitted by applicable law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consent to such relief and enforcement, provided, however, that nothing herein shall affect the applicability of:

 

(1)                                   Section 13A of the Banking Act 1959 of the Commonwealth of Australia, which provides that in the event of a bank such as the Company becoming unable to meet its obligations or suspending payment thereof, the assets of such bank in Commonwealth of Australia shall be available to meet its deposit liabilities in Commonwealth of Australia in priority to all other liabilities of such bank;
 
(2)                                   Section 23 of the Westpac Banking Corporation Act 1982 of New Zealand, which provides that the assets of the Company in New Zealand would, in the event of the Company being unable to meet its obligations or suspending payment, be available to meet the company’s deposit liabilities in New Zealand in priority to all other liabilities of the Company;
 
(3)                                   Section 86 of the Reserve Bank Act 1959 of the Commonwealth of Australia, which provides, in a Winding Up of a bank, that debts due to the Reserve Bank of Australia by a bank such as the Company shall, subject to Section 13A of the Banking Act 1959 of the Commonwealth of Australia, have priority over all other debts of such bank other than debts due to the Commonwealth of Australia; and
 
(4)                                   Section 16 of the Banking Act 1959 of the Commonwealth of Australia, which provides, in a Winding Up of a bank such as the Company, that, subject to Section 13A of the Banking Act 1959 to the Commonwealth of Australia, debts due to the Australian Prudential Regulation Authority have priority over all other unsecured debts of the bank.

 

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ARTICLE VI

 

THE TRUSTEE

 

Section 6.1.                                    Rights, Duties and Responsibilities of Trustee .  Subject to the provisions of the Trust Indenture Act:

 

(a)                                   In the absence of bad faith on its part, the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper party or parties.  The Trustee need not investigate any fact or matter stated in the document.

 

(b)                                  Any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 3.3, which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution.

 

(c)                                   Before the Trustee acts or refrains from acting, it may consult with counsel and/or require an Officers’ Certificate.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on a Board Resolution, the advice of counsel acceptable to the Company and the Trustee, a certificate of an Officer or Officers delivered pursuant to Section 1.2, an Officers’ Certificate or an Opinion of Counsel.

 

(d)                                  The Trustee may act through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.

 

(e)                                   The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its discretion or rights or powers.

 

(f)                                     The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

 

(i)                                      this clause (f) does not limit the effect of Section 6.1(c);

 

(ii)                                   the Trustee shall not be liable for any error of judgment made in good faith by an Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

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(iii)                                the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.8.

 

(g)                                  The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(h)                                  The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of the Company, personally or by agent or attorney.

 

Notwithstanding anything contained herein to the contrary, in case an Event of Default or a Default with respect to the Securities of any series has occurred and is continuing, the Trustee shall exercise, with respect to Securities of such series, such of the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent individual would exercise or use under the circumstances in the conduct of his or her own affairs.

 

Section 6.2.                                    Trustee May Hold Securities .  The Trustee, any Paying Agent, any Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company, an Affiliate or Subsidiary with the same rights it would have if it were not Trustee, Paying Agent, Registrar or such other agent.

 

Section 6.3.                                    Money Held in Trust .  Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law.  The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

 

Section 6.4.                                    Trustee’s Disclaimer .  The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities or any coupon, except that the Trustee represents and warrants

 

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that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and thereunder; that the statements made by it in a Statement of Eligibility and Qualification on Form T-1 supplied or to be supplied to the Company in connection with the registration of any Securities are and will be true and accurate subject to the qualifications set forth therein; and that such Statement complies and will comply in all material respects with the requirements of the Trust Indenture Act and the Securities Act.  The Trustee shall not be accountable for the Company’s use of the proceeds from the Securities or for monies paid over to the Company pursuant to the Indenture.

 

Section 6.5.                                    Notice of Defaults .  If a default occurs and is continuing with respect to the Securities of any series and if it is known to the Trustee, the Trustee shall, within 90 days after it occurs, transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of all such uncured events that are known to it; provided, however, that, except in the case of a Default in payment on the Securities of any series, the Trustee may withhold the notice if and so long as a Responsible Officer in good faith determines that withholding such notice is in the interests of Holders of Securities of that series; provided, further, that in the case of any default or breach of the character specified in Section 5.1(b)(4) with respect to the Securities and coupons of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof.  For the purpose of this Section only, the term “default” means any event which is, or after notice or lapse of time or both would become, a Default with respect to the Securities of such series.

 

Section 6.6.                                    Reports by Trustee to Holders .  Within 60 days after each May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of Securities as provided in Section 313(c) of the Trust Indenture Act a brief report dated as of such May 15 if required by and in compliance with Section 313(a) of the Trust Indenture Act.  A copy of each report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities are listed, with the Commission and with the Company.  The Company will promptly notify the Trustee when the Securities are listed on any stock exchange and of any delisting thereof.

 

Section 6.7.                                    Security Holder Lists .  The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of Securities of each series.  If the Trustee is not the Registrar, the Company shall furnish to the Trustee within 14 days after each Regular Record Date, and at such other times as the Trustee may request in writing, within 5 Business Days of such request, a list, in such form and as of such date as the Trustee may reasonably require, containing all the information in the possession or control of the Registrar, the Company or any of its Paying Agents other than the Trustee as to the names and addresses of Holders of Securities of each such series.  If there are Bearer Securities of any series

 

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Outstanding, even if the Trustee is the Registrar, the Company shall furnish to the Trustee such a list containing such information with respect to Holders of such Bearer Securities only.

 

Section 6.8.                                    Compensation and Indemnity .  (a)  The Company shall pay to the Trustee from time to time such compensation for its services as the Company and the Trustee may agree in writing from time to time.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon request for all reasonable expenses, disbursements and advances incurred by it in connection with the performance of its duties under this Indenture, except any such expense, disbursement or advance as may be attributable to its negligence or bad faith.  Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.

 

(b)                                  The Company shall indemnify the Trustee for, and hold it harmless against, any and all loss, liability, damage, claim or expense (including taxes other than taxes based upon, measured by or determined by the income of the Trustee), including the costs and expenses of defending itself against any third-party claim, incurred by it arising out of or in connection with its acceptance or administration of the trust or trusts hereunder (collectively, “ Claims ”).  The Trustee shall notify the Company promptly of any Claim for which it may seek indemnity.  The Company shall defend the Claim and the Trustee shall cooperate in the defense.  The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement made without its consent; provided that such consent shall not be unreasonably withheld.

 

(c)                                   The Company need not reimburse any expense, disbursement or advance or indemnify against any Claim incurred by the Trustee through negligence or bad faith.

 

(d)                                  To secure the payment obligations of the Company pursuant to this Section, the Trustee shall have a lien prior to the Securities of any series on all money or property held or collected by the Trustee, except that held in trust to pay principal, premium, if any, and interest on particular Securities.

 

(e)                                   When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(a)(1), 5.1(a)(2) or Section 5.1(b)(1), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.

 

(f)                                     The provisions of this Section shall survive the termination of this Indenture.

 

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Section 6.9.                                    Replacement of Trustee .  (a)  The resignation or removal of the Trustee and the appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in Section 6.10.

 

(b)                                  The Trustee may resign at any time with respect to the Securities of any series by giving written notice thereof to the Company.  If the instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(c)                                   The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series may remove the Trustee with respect to that series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the Company’s consent.

 

If an instrument of acceptance by a successor Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(d)                                  If at any time:

 

(1)                                   the Trustee fails to comply with Section 310(b) of the Trust Indenture Act after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
 
(2)                                   the Trustee shall cease to be eligible under Section 6.11 hereof or Section 310(a) of the Trust Indenture Act and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months; or
 
(3)                                   the Trustee becomes incapable of acting, is adjudged a bankrupt or an insolvent or a receiver or public officer takes charge of the Trustee or its property or affairs for the purpose of rehabilitation, conservation or liquidation,
 

then, in any such case, ( i ) the Company may remove the Trustee with respect to all Securities or ( ii ) subject to Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

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(e)                                   If the Trustee resigns or is removed or becomes incapable of acting or if a vacancy exists in the office of Trustee for any reason, with respect to Securities of one or more series, the Company shall promptly appoint a successor Trustee with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.10.  If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.10, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.  If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.10, then, subject to Section 315(e) of the Trust Indenture Act, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

Section 6.10.                              Acceptance of Appointment by Successor .  (a)  In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment.  Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee, without further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 6.8 of this Indenture.

 

(b)                                  In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein such successor Trustee shall accept such appointment and which ( i ) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, ( ii ) if the retiring Trustee is not retiring with respect to all

 

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Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and ( iii ) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

 

(c)                                   Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.

 

(d)                                  No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under the Trust Indenture Act.

 

(e)                                   The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the Holders of Securities in Section 1.6.  Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

Section 6.11.                              Eligibility; Disqualification .  There shall at all times be a Trustee hereunder with respect to each series of Securities (which need not be the same Trustee for all series).  Each Trustee hereunder shall be eligible to act as trustee under Section 310(a)(1) of the Trust Indenture Act and shall have a combined capital and surplus of at least $50,000,000.  If such corporation publishes reports of condition at least annually, pursuant to law or the requirements of Federal, State, Territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined

 

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capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.  To the extent permitted by the Trust Indenture Act, any Trustee hereunder shall not be deemed to have a conflicting interest by virtue of being the trustee under ( i ) the Senior Indenture, dated as of July 1, 1999, between the Company and The Chase Manhattan Bank (now renamed JPMorgan Chase Bank), as trustee, ( ii ) the Junior Subordinated Indenture, dated as of July 1, 1999 (the “ Junior Subordinated Indenture ”), between the Company acting through its branch located in Wellington, New Zealand and The Chase Manhattan Bank (now renamed JPMorgan Chase Bank), as trustee, ( iii ) the Amended and Restated Declaration of Trust of Westpac Capital Trust I, dated as of July 1, 1999, among Westpac Capital Holdings Inc., as sponsor, Lewis E. Love, Jr., Manuela Adl and Robert Goldwasser, as the regular trustees, The Chase Manhattan Bank (now renamed JPMorgan Chase Bank), as the property trustee, Chase Manhattan Bank Delaware (now renamed Chase Manhattan Bank USA, National Association), as the Delaware trustee and the holders from time to time of the securities representing undivided beneficial ownership interests in the assets of Westpac Capital Trust I, ( iv ) the Amended and Restated Declaration of Trust of Tavarua Funding Trust I, dated as of July 1, 1999, among Westpac Funding Holdings Pty Ltd., as sponsor, Lewis E. Love, Jr., Manuela Adl and Robert Goldwasser, as the regular trustees, The Chase Manhattan Bank (now renamed JPMorgan Chase Bank), as the property trustee, Chase Manhattan Bank Delaware (now renamed Chase Manhattan Bank USA, National Association), as the Delaware trustee and the holders from time to time of the securities representing undivided beneficial ownership interests in the assets of Tavarua Funding Trust I, ( v ) the Capital Trust Preferred Securities Guarantee, dated as of July 1, 1999, between the Company, as guarantor, and The Chase Manhattan Bank (now renamed JPMorgan Chase Bank), as capital trust preferred guarantee trustee, ( vi ) the Funding Trust Preferred Securities Guarantee, dated as of July 1, 1999, between the Company, as guarantor, and The Chase Manhattan Bank (now renamed JPMorgan Chase Bank), as funding trust preferred guarantee trustee and ( vii ) the 8% New Zealand-dollar denominated junior subordinated convertible debentures, issued by the Company acting through its branch located in Wellington, New Zealand pursuant to the Junior Subordinated Indenture.

 

Section 6.12.                              Merger, Conversion, Consolidation or Succession to Business .  Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of

 

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the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.  In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 6.13.                              Appointment of Authenticating Agent .  The Trustee shall initially be the Authenticating Agent.  The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue exchange, registration of transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.  Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the Company.  Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.  Each Authenticating Agent shall be acceptable to the Company and, except as may otherwise be provided pursuant to Section 3.1, shall at all times be a bank or trust company or corporation organized and doing business and in good standing under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authorities.  If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.  In case at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

 

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating Agent.

 

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An Authenticating Agent for any series of Securities may at any time resign by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company.  Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner set forth in Section 1.6.  Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein.  No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

The Company agrees to pay to each Authenticating Agent from time to time such reasonable compensation as the Company and such Authenticating Agent agree in writing from time to time including reimbursement of its reasonable expenses for its services under this Section.

 

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the following form:

 

This is one of the Securities of the series designated herein and issued under the within-mentioned Indenture.

 

 

JPMorgan Chase Bank, as Trustee

 

 

 

By

 

 

 

as Authenticating Agent

 

 

 

 

 

By

 

 

 

Authorized Signature

 

Section 6.14.                              Preferential Collection of Claims Against Company .  If and when the Trustee shall be or become a creditor of the Company (or any other obligor under the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

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ARTICLE VII

 

CONSOLIDATION, MERGER OR SALE BY THE COMPANY

 

Section 7.1.                                    Consolidation, Merger or Sale of Assets Permitted .  The Company may not merge or consolidate with or into any other Person or sell, convey, transfer all or substantially all of its assets to any Person, unless ( i ) ( A ) in the case of such merger or consolidation, the Company is the surviving Person or ( B ) the Person formed by such consolidation, into which the Company is merged, or the Person which acquires by sale, conveyance or transfer, the assets of the Company expressly assumes by supplemental indenture delivered to the Trustee all the obligations of the Company under the Securities and any coupons appertaining thereto and under this Indenture, ( ii ) immediately thereafter, giving effect to such merger or consolidation, or such sale, conveyance or transfer, no Default or Event of Default shall have occurred and be continuing and ( iii ) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such merger, consolidation, sale, conveyance or transfer complies with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (which Opinion of Counsel may rely on such Officers’ Certificate with respect to compliance with the preceding clause (ii)).  In the event of the assumption by a successor Person of the obligations of the Company as provided in clause (i)(B) of the immediately preceding sentence, such successor Person shall succeed to and be substituted for the Company hereunder and under the Securities and any coupons appertaining thereto and all such obligations of the Company shall terminate and, if such successor Person is organized under the laws of a country other than the Commonwealth of Australia or a political subdivision of a country other than the Commonwealth of Austrailia, references in Section 9.8(a) hereof (except clause (5) thereof) to “Commonwealth of Australia” shall be treated as references to both the Commonwealth of Australia and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).

 

ARTICLE VIII

 

SUPPLEMENTAL INDENTURES

 

Section 8.1.                                    Supplemental Indentures Without Consent of Holders .  Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:

 

(1)                                   to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants and obligations of the Company herein and in the Securities (with such changes herein and therein as

 

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may be necessary or advisable to reflect such Person’s legal status, if such Person is not a corporation); or
 
(2)                                   to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants, for which a grace period may be provided, are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or to comply with any requirement of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act or otherwise; or
 
(3)                                   to add any additional Defaults or Events of Default with respect to all or any series of Securities; or
 
(4)                                   to add to or change any of the provisions of this Indenture to such extent as shall be necessary to facilitate the issuance of Bearer Securities (including, without limitation, to provide that Bearer Securities may be registrable as to principal only) or to facilitate or provide for the issuance of Securities in global form in addition to or in place of Securities in certificated form; or
 
(5)                                   to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only with respect to any series of Securities which has not been issued as of the execution of such supplemental indenture or when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
 
(6)                                   to secure the Securities; or
 
(7)                                   to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or
 
(8)                                   to provide for the delivery of indentures supplemental hereto or the Securities of any series in or by means of any computerized, electronic or other medium, including without limitation by computer diskette; or
 
(9)                                   to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Article VI; or

 

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(10)                             if allowed without penalty under applicable laws and regulations, to permit payment in the United States (including any of the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction of principal, premium, if any, or interest, if any, on Bearer Securities or coupons, if any; or
 
(11)                             to maintain qualification of this Indenture under the Trust Indenture Act; or
 
(12)                             to correct or supplement any provision herein which may be inconsistent with any other provision herein or to cure any ambiguity or omission or to correct any mistake, provided such action shall not adversely affect the interests of the Holders of Securities of any series; or
 
(13)                             to modify the provisions of Article XII (except, with respect to any Outstanding Securities of any series, to the extent prohibited by Section 8.2(5)); or
 
(14)                             to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any series;
 

provided, however, that without the prior written consent of the Australian Prudential Regulation Authority, a Supplemental Indenture under this Section may not make any change to the Indenture or any supplemental indenture that would affect the eligibility of any Outstanding Securities of any series to continue to qualify as Lower Tier 2 capital.

 

Section 8.2.                                    With Consent of Holders .  With the written consent of the Holders of not less than a majority of the aggregate principal amount of the Outstanding Securities of each series adversely affected by such supplemental indenture (with the Securities of each series voting as a class), the Company and the Trustee may enter into an indenture or indentures supplemental hereto to add any provisions to or to change or eliminate any provisions of this Indenture or of any other indenture supplemental hereto or to modify the rights of the Holders of Securities of each such series; provided, however, that without the prior written consent of the Australian Prudential Regulation Authority, a Supplemental Indenture under this Section may not make any change to the Indenture or any supplemental indenture that would affect the eligibility of any Outstanding Securities of any series to continue to qualify as Lower Tier 2 capital; and provided further, however, that without the consent of the Holder of each Outstanding Security affected thereby, a supplemental indenture under this Section may not:

 

(1)                                   change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof

 

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or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or Indexed Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2, or change the coin or currency in which any Securities or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date);
 
(2)                                   reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;
 
(3)                                   change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 9.2;
 
(4)                                   except to the extent provided in Section 8.1(9), make any change in Section 5.2, 5.7, 5.10 or this Section 8.2 except to increase any percentage or to provide that certain other provisions of this Indenture cannot be modified or waived except with the consent of the Holders of each Outstanding Security affected thereby; or
 
(5)                                   modify the provisions of Article XII of this Indenture with respect to the subordination of Outstanding Securities of any series in a manner adverse to the Holders thereof.
 

For the purposes of this Section 8.2, if the Securities of any series are issuable upon the exercise of warrants, any holder of an unexercised and unexpired warrant with respect to such series shall not be deemed to be a Holder of Outstanding Securities of such series in the amount issuable upon the exercise of such warrants.

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

Immediately prior to entering into a supplemental indenture amending such sections or changing the Stated Maturity of the principal of the Securities of any series pursuant to this Section 8.2, the Company shall deliver to the Trustee an Officers’

 

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Certificate stating that the Company is entitled to effect such amendment or change and setting forth a statement of facts showing that the conditions precedent to the right of the Company to do so have occurred.

 

It is not necessary under this Section 8.2 for the Holders to consent to the particular form of any proposed supplemental indenture, but it is sufficient if they consent to the substance thereof.

 

Section 8.3.                                    Compliance with Trust Indenture Act .  Every amendment to this Indenture or the Securities of one or more series shall be set forth in a supplemental indenture that complies with the Trust Indenture Act as then in effect.

 

Section 8.4.                                    Execution of Supplemental Indentures .  In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.  The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.  The Trustee shall enter into any such supplemental indenture if such supplemental indenture does not adversely affect the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Section 8.5.                                    Effect of Supplemental Indentures .  Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupon appertaining thereto shall be bound thereby; provided that if such supplemental indenture makes any of the changes described in clauses (1) through (5) of the first proviso to Section 8.2, such supplemental indenture shall bind each Holder of a Security who has consented to it and every subsequent Holder of such Security or any part thereof.

 

Section 8.6.                                    Reference in Securities to Supplemental Indentures .  Securities, including any coupons, of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture.  If the Company shall so determine, new Securities including any coupons of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities including any coupons of such series.

 

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ARTICLE IX

 

COVENANTS

 

Section 9.1.                                    Payment of Principal, Premium, if any, and Interest .  The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of, and premium, if any, and interest on the Securities of that series in accordance with the terms of the Securities of such series, any coupons appertaining thereto and this Indenture.  An installment of principal, premium, if any, or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for and sufficient to pay the installment.

 

Section 9.2.                                    Maintenance of Office or Agency .  If Securities of a series are issued as Registered Securities, the Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.  If Securities of a series are issuable as Bearer Securities, the Company will maintain, ( i ) subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for that series which is located outside the United States, where Securities of that series and related coupons may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on The International Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange and ( ii ) subject to any laws or regulations applicable thereto, an office or agency in a Place of Payment for that series which is located outside the United States where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.  The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency.  If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

Unless otherwise specified as contemplated by Section 3.1, no payment of principal, premium or interest on Bearer Securities shall be made at any office or agency

 

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of the Company in the United States, by check mailed to any address in the United States, by transfer to an account located in the United States or upon presentation or surrender in the United States of a Bearer Security or coupon for payment, even if the payment would be credited to an account located outside the United States; provided, however, that, if the Securities of a series are denominated and payable in Dollars, payment of principal of and any premium or interest on any such Bearer Security shall be made at an office of a Paying Agent of the Company in the Borough of Manhattan, the City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

 

Subject to the preceding paragraphs, the Company may also from time to time designate one or more other offices or agencies where the Securities (including any coupons, if any) of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities (including any coupons, if any) of any series for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

Unless otherwise specified as contemplated by Section 3.1, the Trustee shall initially serve as Paying Agent.  The Paying Agent may make reasonable rules not inconsistent herewith for the performance of its functions.

 

Section 9.3.                                    Money for Securities to Be Held in Trust; Unclaimed Money .  If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of, or premium, if any, or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal, premium, if any, or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act.

 

If the Company is not acting as its own Paying Agent, the Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

 

(1)                                   hold all sums held by it for the payment of the principal of, or premium, if any, or interest on Securities of that series in trust for the benefit of

 

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the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
 
(2)                                   give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal, premium, if any, or interest on the Securities; and
 
(3)                                   at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.  If the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it in a separate trust fund.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of any principal, premium or interest or other amounts on any Security of any series and remaining unclaimed for two years after such principal, premium, if any, or interest or other amounts has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security and coupon, if any, shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, or cause to be mailed to such Holder, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

Section 9.4.                                    Corporate Existence .  Subject to Article VII, the Company will at all times do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and its rights and franchises; provided that nothing in this Section 9.4 shall prevent the abandonment or termination of any right or franchise of the Company if, in the opinion of the Company, such abandonment or termination is in the best interests of the Company.

 

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Section 9.5.                                    Insurance .  The Company covenants and agrees that it will maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations or through a program of self-insurance in such amounts and covering such risks as are consistent with sound business practice for corporations engaged in the same or a similar business similarly situated.

 

Section 9.6.                                    Reports by the Company .  The Company covenants:

 

(a)                                     to file with the Trustee, within 30 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

(b)                                    to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture, as may be required from time to time by such rules and regulations; and

 

(c)                                     to transmit to all Holders of Securities within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 9.6, as may be required by rules and regulations prescribed from time to time by the Commission.

 

Section 9.7.                                    Annual Review Certificate .  The Company covenants and agrees to deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture.  For purposes of this Section 9.7, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.

 

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Section 9.8.                                    Payment of Additional Amounts .  (a)  All payments in respect of the Securities shall be made without withholding or deduction for, or on account of, any taxes, assessments or other governmental charges (“relevant tax”) imposed or levied by or on behalf of the Commonwealth of Australia or any political subdivision or authority in or of the Commonwealth of Australia, unless the withholding or deduction is required by law.  In that event, the Company will pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by the Holder of the Securities, after such withholding or deduction, will equal the amount that the Holder would have received in respect of the Securities without such withholding or deduction.  However, the Company will pay no Additional Amounts:

 

(1)                                   to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities having some connection (whether present, past or future) with the Commonwealth of Australia or any political subdivision or authority of or in the Commonwealth of Australia, other than being a Holder, or the beneficial owner, of the Securities;
 
(2)                                   to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities not complying with any statutory requirements or not having made a declaration of non-residence in, or other lack of connection with, the Commonwealth of Australia or any political subdivision or authority of or in the Commonwealth of Australia or any similar claim for exemption, if the Company or its agent has provided the Holder, or the beneficial owner, of the Securities with at least 60 days’ prior written notice of an opportunity to comply with such statutory requirements or make a declaration or claim;
 
(3)                                   to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities having presented for payment more than 30 days after the date on which the payment in respect of the Securities first became due and payable, except to the extent that the Holder, or the beneficial owner, of the Securities would have been entitled to such Additional Amounts if the Holder or beneficial owner had presented the Securities for payment on any day within such 30-day period;
 
(4)                                   to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities having presented the Securities for payment in the Commonwealth of Australia, unless the Securities could not have been presented for payment elsewhere; or
 
(5)                                   to the extent that the relevant tax is imposed or levied by virtue of the Holder, or the beneficial owner, of the Securities being an associate of the

 

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Company for purposes of Section 128F(6) of the Income Tax Assessment Act 1936 of the Commonwealth of Australia.
 

In addition, the Company will pay no Additional Amounts to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the payment in respect of the Securities to the extent such payment would, under the laws of the Commonwealth of  Australia or any political subdivision or authority of or in the Commonwealth of Australia, be treated as being derived or received for tax purposes by a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to Additional Amounts had it been the Holder of the Securities.

 

(b)                                  Any reference in this Indenture or any indenture supplemental hereto to principal or interest shall be deemed to also refer to any Additional Amount that may be payable under this Section 9.8.

 

Section 9.9.                                    Payment of Stamp Taxes .  The Company will pay or discharge or cause to be paid or discharged all stamp and similar taxes, if any, that may be imposed by the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein with respect to the execution or delivery of this Indenture or the Securities.

 

Section 9.10.                              Indemnification of Judgment Currency .  The Company shall indemnify the Trustee and any Holder of a Security against any loss incurred by the Trustee or such Holder, as the case may be, as a result of any judgment or order being given or made for any amount due under this Indenture or such Security and such judgment or order being expressed and paid in a currency (the “ Judgment Currency ”) other than the currency in which such Security is denominated or payable, as the case may be (the “ Specified Currency ”), and as a result of any variation as between ( i ) the rate of exchange at which the Specified Currency amount is converted into the Judgment Currency for the purpose of such judgment or order and ( ii ) the spot rate of exchange in The City of New York at which the Trustee or such Holder, as the case may be, on the date of payment of such judgment or order is able to purchase the Specified Currency with the amount of the Judgment Currency actually received by the Trustee or such Holder.  The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.  The term “spot rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the Specified Currency.

 

Section 9.11.                              Waiver of Certain Covenants .  Company may omit in any particular instance to comply with any term, provision or condition set forth in Section 9.4 and 9.9 with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding

 

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Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waive, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

 

ARTICLE X

 

REDEMPTION

 

Section 10.1.                              Applicability of Article .  (a)  Securities (including coupons, if any) of or within any series that are redeemable in whole or in part before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1 for Securities of any series) in accordance with this Article.

 

(b)                                  No Securities of any series will be redeemed before their Stated Maturity without the prior written approval of the Australian Prudential Regulation Authority.

 

Section 10.2.                              Election to Redeem; Notice to Trustee .  The election of the Company to redeem any Securities, including coupons, if any, shall be evidenced by or pursuant to a Board Resolution or a Company Order.  In the case of any redemption at the election of the Company of less than all the Securities or coupons, if any, of any series having the same terms, the Company shall, at least 45 but not more than 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed.  In the case of any redemption of Securities ( i ) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or ( ii ) pursuant to an election of the Company that is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction or condition.

 

Section 10.3.                              Selection of Securities to Be Redeemed .  Unless otherwise specified as contemplated by Section 3.1, if less than all the Securities (including coupons, if any) of a series with the same terms are to be redeemed, the Trustee, not more than 60 but at least 45 days prior to the Redemption Date, shall select the Securities of the series to be redeemed in such manner as the Trustee shall deem fair and appropriate.  The Trustee shall make the selection from Securities of the series that are Outstanding and that have not previously been called for redemption and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities, including coupons, if any, of that series or any integral multiple thereof) of the principal

 

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amount of Securities, including coupons, if any, of such series of a denomination larger than the minimum authorized denomination for Securities of that series.  The Trustee shall promptly notify the Company in writing of the Securities selected by the Trustee for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.  If the Securities (including coupons, if any) of a series having different issue dates, interest rates and maturities (whether or not originally issued in a Periodic Offering) are to be redeemed, the Company in its discretion may select the particular Securities or portions thereof to be redeemed and shall notify the Trustee thereof by such time prior to the relevant redemption date or dates as the Company and the Trustee may agree.

 

For purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities (including coupons, if any) shall relate, in the case of any Securities (including coupons, if any) redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities (including coupons, if any) that has been or is to be redeemed.

 

Section 10.4.                              Notice of Redemption .  Unless otherwise specified as contemplated by Section 3.1, notice of redemption shall be given in the manner provided in Section 1.6 not less than 30 days nor more than 60 days prior to the Redemption Date to the Holders of the Securities to be redeemed.

 

All notices of redemption shall state:

 

(1)                                   the Redemption Date;
 
(2)                                   the Redemption Price;
 
(3)                                   if less than all the Outstanding Securities of a series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Security or Securities to be redeemed;
 
(4)                                   in case any Security is to be redeemed in part only, the notice that relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the holder will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed;
 
(5)                                   the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment for the Redemption Price;

 

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(6)                                   that Securities of the series called for redemption and all unmatured coupons, if any, appertaining thereto must be surrendered to the Paying Agent to collect the Redemption Price;
 
(7)                                   that, on the Redemption Date, the Redemption Price will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;
 
(8)                                   that the redemption is for a sinking fund, if such is the case;
 
(9)                                   that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the Redemption Date or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished; and
 
(10)                             the CUSIP number, if any, of such Securities.
 

Notice of redemption of Securities to be redeemed shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.  Any notice given in the manner provided herein shall be conclusively presumed to have been given, whether or not such notice is actually received.  Failure to mail any notice or defect in the mailed notice or the mailing thereof in respect of any Security shall not affect the validity of the redemption of any other Security.

 

Section 10.5.                              Deposit of Redemption Price .  On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, which it may not do in the case of a sinking fund payment under Article XI, segregate and hold in trust as provided in Section 9.3) an amount of money in the currency or currencies (including currency units or composite currencies) in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.1 for the Securities of such series) sufficient to pay on the Redemption Date the Redemption Price of, and (unless the Redemption Date shall be an Interest Payment Date) interest accrued to the Redemption Date on, all Securities or portions thereof which are to be redeemed on that date.

 

Unless any Security by its terms prohibits any sinking fund payment obligation from being satisfied by delivering and crediting Securities (including Securities redeemed otherwise than through a sinking fund), the Company may deliver such Securities to the Trustee for crediting against such payment obligation in accordance with the terms of such Securities and this Indenture.

 

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Section 10.6.                              Securities Payable on Redemption Date .  Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the coupons for any such interest appertaining to any Bearer Security so to be redeemed, except to the extent provided below, shall be void.  Except as provided in the next succeeding paragraph, upon surrender of any such Security, including coupons, if any, for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date and the principal of, and premium, if any, on such Bearer Securities shall be payable only at an office or agency located outside the United States and its possessions (except as otherwise provided in Section 9.2) and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of coupons for such interest; and provided, further, that, unless otherwise specified as contemplated by Section 3.1, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.7.

 

If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Bearer Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless.  If thereafter the Holder of such Bearer Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside of the United States (except as otherwise provided pursuant to Section 9.2) and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of those coupons.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

Section 10.7.                              Securities Redeemed in Part .  Upon surrender of a Security that is redeemed in part at any Place of Payment therefor (with, if the Company or the Trustee so require, due endorsement by, or a written instrument of transfer in form satisfactory to

 

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the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), the Company shall execute and the Trustee shall authenticate and deliver to the Holder of that Security, without service charge a new Security or Securities of the same series, having the same form, terms and Stated Maturity, in any authorized denomination equal in aggregate principal amount to the unredeemed portion of the principal amount of the Security surrendered.

 

Section 10.8.                              Optional Redemption Due to Changes in Australian Tax Treatment .  The Securities of any series may be redeemed, in whole but not in part, at the Redemption Price specified in the form of Security for such series established pursuant to Section 3.1, with any accrued interest to the Redemption Date, at any time within 90 days of the Company requesting and receiving an opinion of competent tax counsel to the effect that there has been, an amendment to, change in or announced proposed change in the laws, or regulations under those laws, of the Commonwealth of Australia or any political subdivision or authority thereof or therein (or, in the event of the assumption pursuant to Section 7.1 of the obligations of the Company hereunder by a successor Person organized under the laws of a jurisdiction other than the Commonwealth of Australia or any political subdivision or authority thereof or therein, of the Commonwealth of Australia or the country in which such successor Person is organized or resident or deemed resident for tax purposes or any political subdivision or authority thereof or therein); a judicial decision interpreting, applying or clarifying those laws or regulations; an administrative pronouncement or action that represents an official position, including a clarification of an official position, of the governmental authority or regulatory body making the administrative pronouncement or taking any action; or a threatened challenge asserted in connection with an audit of the Company, or any of its subsidiaries, or a threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Securities, which amendment or change is adopted or which proposed change, decision or pronouncement is announced or which action, clarification or challenge occurs on or after (A) with respect to taxes imposed by the Commonwealth of Australia or any political subdivision or authority thereof or therein, the date of the applicable prospectus supplement or term sheet or (B) in the event of the assumption pursuant to Section 7.1 of the obligations of the Company hereunder by a successor Person organized under the laws of a jurisdiction other than the Commonwealth of Australia (or any political subdivision thereof), with respect to taxes imposed by a non-Australian jurisdiction, the date of the transaction resulting in such assumption, in each case, following which there is more than an insubstantial risk that any payment on the Securities is, or will be, subject to withholding or deduction in respect of any taxes, assessments or other governmental charges; provided, however, that, if at the time there is available to the Company the opportunity to eliminate, within the 90-day period, the risk that any payment on the Securities is, or will be, subject to such withholding or deduction by taking some ministerial action, such as filing a form or making an election, or pursuing some other similar reasonable measure that in the Company’s sole judgment has or will cause no

 

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adverse effect on the Company or any of the Company’s Subsidiaries or Affiliates and will involve no material cost, the Company will pursue that measure in lieu of redeeming the Securities of any series pursuant to this Section 10.8.

 

ARTICLE XI

 

SINKING FUNDS

 

Section 11.1.                              Applicability of Article .  The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1 for Securities of such series.

 

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.”  If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2.  Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

 

Section 11.2.                              Satisfaction of Sinking Fund Payments with Securities .  The Company ( i ) may deliver Outstanding Securities of a series (other than any previously called for redemption) together, in the case of Bearer Securities of such series, with all unmatured coupons appertaining thereto and ( ii ) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited.  Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

 

Section 11.3.                              Redemption of Securities for Sinking Fund .  Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 11.2 and will also deliver to the Trustee any Securities to be so delivered.  Not less than 30 days before each such sinking fund payment date the Trustee shall select the

 

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Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 10.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 10.4.  Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 10.5 and 10.6.

 

ARTICLE XII

 

SOLVENCY AND SUBORDINATION OF SECURITIES

 

Section 12.1.                              Solvency .  Notwithstanding anything in this Indenture or any Security to the contrary, prior to the commencement of a Winding Up of the Company:

 

(1)                                   the obligation of the Company to make any payment of principal, Redemption Price, interest or any other amount owing in respect of the Securities or in relation to this Indenture shall be conditional upon the Company being Solvent at the time such payment is due; and
 
(2)                                   the Company shall not make any payment of principal, Redemption Price, interest or any other amount owing in respect of the Securities or in relation to this Indenture except to the extent that the Company may make such payment and still be Solvent immediately thereafter.
 

Section 12.2.                              Subordination and Payment Over of Proceeds Upon Winding Up .

 

(a)                                   In a Winding Up of the Company, the rights and claims of Holders of the Securities and the Trustee (other than with respect to the costs, charges, expenses and liabilities incurred by the Trustee in or about the execution of the trusts hereunder, including the remuneration of the Trustee, which are governed by Section 12.2(d) below) are subordinated and junior in right of payment to the claims of the Senior Creditors of the Company (as defined below).

 

(b)                                  The Securities shall constitute direct and unsecured obligations of the Company, subordinated to Senior Creditors of the Company as and to the extent provided herein, and rank pari passu without any preference among themselves, and at least pari passu with all other unsecured Subordinated Indebtedness (as defined below) of the Company (save for certain mandatory exceptions provided by law including, but not limited to, Section 13A of the Banking Act 1959 of Australia and Section 23 of the Westpac Banking Corporation Act 1982 of New Zealand).

 

(c)                                   The Securities shall not constitute deposit liabilities of the Company in Australia or New Zealand for the purposes of the Banking Act 1959 of Australia or the Westpac Banking Corporation Act 1982 of New Zealand.

 

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(d)                                  On a Winding Up of the Company, no amount shall be payable to the Holders in respect of the Securities and hereunder until the claims of the Senior Creditors of the Company have been satisfied in full and the rights of the Holders hereunder and under the Securities to receive any amounts in respect of the Securities and hereunder in the Winding Up of the Company shall be held by the Trustee upon trust:

 

FIRST, for application in payment or satisfaction of the costs, charges, expenses and liabilities incurred by the Trustee in or about the execution of the trusts hereunder (including the remuneration of the Trustee);

 

SECOND, pari passu and ratably (as to its due proportion only) with the holders of other Subordinated Indebtedness (as defined below) (if any) for distribution among the Senior Creditors of the Company (but only to the extent that their claims shall not have been satisfied in full;

 

THIRD, pari passu and ratably in or towards payment of the principal and interest owing in respect of the Securities; and

 

FOURTH, in payment of any balance to the Company or the liquidator of the Company on its behalf.

 

(e)                                   The trust for distribution among the Senior Creditors of the Company shall be performed by the Trustee by repaying to the liquidator of the Company the amount so to be distributed on terms that such liquidator shall distribute the same accordingly and, in that event, the receipt of the liquidator of the Company shall be a good discharge to the Trustee and the Trustee shall not be bound to supervise such distribution.

 

(f)                                     The Trustee shall be entitled and is hereby authorized by the Company to call for (and shall be entitled to accept as conclusive evidence thereof) a certificate from the liquidator of the Company as to:

 

(1)                                   the amounts of the claims of the Senior Creditors of the Company that shall have been admitted in the Winding Up and that shall not have been satisfied in full out of the other resources of the Company;
 
(2)                                   the Persons entitled thereto and their respective entitlements; and
 
(3)                                   the amounts of the claims of the holder or holders of any Subordinated Indebtedness.
 

Any certificate given by the liquidator of the Company as aforesaid shall be conclusive and binding on the Trustee and all Holders.

 

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(g)                                 Subject to the terms of this Article XII, the Trustee shall be entitled in the event of any Securities remaining unpaid (other than by reason of nonpresentation) at a time when the Securities have become payable to institute proceedings for the Winding Up of the Company to recover amounts due hereunder and under the Securities or to prove such amounts in any Winding Up or both.  If the Trustee, having become bound to institute proceedings in accordance with this Indenture, fails to do so or fails to prove in such Winding Up, any Holder may, upon giving to the Trustee an indemnity satisfactory to it, in the name of the Trustee (but not otherwise) itself take the proceedings that the Trustee could have instituted or proven in such Winding Up or both; provided, however, that nothing in this subsection (g) shall prevent the Trustee (or, where entitled under these presents to do so, any Holder) from taking any other proceedings to recover the amounts due hereunder or under the Securities or to pursue any other remedy permitted by the terms of Article V where Winding Up of the Company is unable to be commenced or completed for any reason whatsoever including, without limitation, action taken by the Reserve Bank of Australia in relation to the affairs of the Company.

 

(h)                                 In a Winding Up of the Company, subject to the satisfaction in full of all Senior Claims (as defined below) admitted in such Winding Up, the Holders and the Trustee shall be subrogated (pro rata with the Holders (or the Trustee(s) for such Holders) of other claims ranking pari passu with the Holders’ Claims (as defined below), on the basis of the respective amounts paid over, directly or through the liquidator of the Company, to or for the benefit of the Senior Creditors of the Company) to the rights of the Senior Creditors of the Company to receive payments or distributions of cash, property or securities of the Company applicable to Senior Claims until the principal (and premium, if any) and interest, if any, in respect of the Securities of each series shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the Senior Creditors of the Company of cash, property or securities of the Company to which the Holders or the Trustee, directly or through the liquidator of the Company, to or for the benefit of Senior Creditors of the Company pursuant to the provisions of this Section 12.2, shall, as between the Company, its creditors other than by its Senior Creditors, and the Holders and the Trustee, be deemed to be a payment by the Company of or on account of Senior Claims.

 

(i)                                     For the purposes of this Article XII:

 

(1)                                   the term “ Senior Creditors of the Company ” means all creditors (present and future), including depositors of the Company, ( i ) whose claims are admitted in the Winding Up of the Company and ( ii ) who are not the holders of indebtedness of the Company the right to repayment of which by its terms is, or is expressed to be, subordinated in a Winding Up of the Company to the claims of all unsubordinated creditors of the Company; and the expression “its Senior Creditors” shall be construed accordingly; and

 

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(2)                                   the term “ Subordinated Indebtedness ” means any indebtedness (present and future) of the Company that by its terms is, or is expressed to be, subordinated in the event of Winding Up of the Company to the claims of Senior Creditors of the Company, other than ( i ) indebtedness of the Company that does not have a fixed maturity date, ( ii ) indebtedness issued under the Junior Subordinated Indenture, ( iii ) any indebtedness the right to repayment of which by its terms is, or is expressed to be, equal in right of payment to indebtedness issued under such Junior Subordinated Indenture and ( iv ) any other indebtedness the right to repayment of which by its terms is, or is expressed to be, subordinated in the event of Winding Up of the Company to the indebtedness hereunder.
 

(j)                                      For the purposes of Sections 12.1 and 12.2:

 

(1)                                   the term “ Holders’ Claims ” shall mean claims of the Holders pursuant to the Securities of each series and this Indenture;
 
(2)                                   the term “ Senior Claims ” shall mean claims against the Company by the Senior Creditors of the Company;
 
(3)                                   the term “ Solvent ” when used in connection with the payment of any installment of principal or interest on the Securities of a series by the Company shall mean that ( i ) the Company is able to pay its debts as they fall due and ( ii ) that the Company’s Assets exceed its Liabilities;
 
(4)                                   the term “ Assets ” shall mean the total consolidated gross assets of the Company as shown by the latest published audited accounts of the Company but adjusted for events subsequent to the date of such accounts in such manner and to such extent as the directors, the Company’s auditors, or as the case may be, the Company’s liquidator may determine to be appropriate; and
 
(5)                                   the term “ Liabilities ” shall mean the total consolidated gross liabilities of the Company as shown by the latest public audited accounts of the Company but adjusted for events subsequent to the date of such accounts in such manner and to such extent as the directors, the Company’s auditors, or as the case may be, the Company’s liquidator may determine to be appropriate.
 

Section 12.3.                              Notice to Trustee .  The Company shall give prompt written notice to the Trustee of any fact known to the Company that would prohibit the making of any payment to or by the Trustee in respect of Securities of any series.  Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment to or by the Trustee in respect of the Securities of any series, unless and until the Trustee shall have received written notice thereof from the Company or an

 

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Senior Creditor of the Company or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.1, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section 12.3 at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of and any premium or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary that may be received by it within three Business Days prior to such date.

 

Subject to the provisions of Section 6.1, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be an Senior Creditor of the Company (or a trustee therefor) to establish that such notice has been given by an Senior Creditor of the Company (or a trustee therefor).  In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as an Senior Creditor of the Company to participate in any payment or distribution pursuant to this Article, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Claims (as defined in Section 12.2) held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.

 

Section 12.4.                              Trustee Not Fiduciary for Senior Creditors of the Company .  The Trustee shall not be deemed to owe any fiduciary duty to the Senior Creditors of the Company and shall not be liable to any Senior Creditors of the Company if it shall in good faith mistakenly pay over or distribute to Holders of Securities of any series or to the Company or to any other Person cash, property or securities to which any Senior Creditors of the Company shall be entitled by virtue of this Article or otherwise.

 

Section 12.5.                              Rights of Trustee as Senior Creditor of the Company; Preservation of Trustee’s Rights .  The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Claims (as defined in Section 12.2) that may at any time be held by it, to the same extent as any other Senior Creditor of the Company, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

 

Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.8.

 

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Section 12.6.                              Article Applicable to Paying Agents .  In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “ Trustee ” as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Section 12.6 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.

 

Section 12.7.                              Provisions Solely to Define Relative Rights .  The provisions of this Article XII are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and all other creditors of the Company (other than Holders of Subordinated Indebtedness) on the other hand.  Nothing contained in this Article XII or elsewhere in this Indenture or in the Securities is intended to or shall:  ( a ) impair, as among the Company and its creditors (other than holders of Subordinated Indebtedness), the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the principal of and interest on the Securities as and when the same shall become due and payable in accordance with their terms; ( b ) affect the relative rights against the Company of the Holders of the Securities and all other creditors of the Company other than holders of Subordinated Indebtedness; or ( c ) prevent the Trustee or the Holder of any Securities from exercising all remedies otherwise permitted by applicable law and Article V of this Indenture upon Default under this Indenture, subject to the rights, if any, under this Article XII of all other creditors of the Company (other than creditors that hold Subordinated Indebtedness) to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.

 

Section 12.8.                              No Set-Off .  No Holder shall be entitled to set-off against any amounts due in respect of the Securities held by such Holder any amount held by the Holder to the credit of the Company whether in any account, in cash or otherwise, nor any deposits with, advances to or debts of the Company, nor any other amount owing by the Holder to the Company on any account whatsoever, nor shall any Holder be entitled to effect any reduction of the amount due to such Holder in respect of a Security by merger of accounts or lien or the exercise of any other rights the effect of which is or may be to reduce the amount due in respect of that Security in breach of this Indenture.

 

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This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one instrument.

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.

 

 

WESTPAC BANKING CORPORATION

 

 

 

 

 

By:

/s/ Manuela Adl

 

 

Name:  Manuela Adl

 

 

Title:  Senior Vice President and COO

 

 

 

 

 

JPMORGAN CHASE BANK, as Trustee

 

 

 

 

 

By:

/s/ Taeko Fukaishi

 

 

Name: Taeko Fukaishi

 

 

Title:  Assistant Vice President

 

87




Exhibit 5.1

 

[Letterhead of Debevoise & Plimpton LLP]

 

September 16, 2008

 

Westpac Banking Corporation

Westpac Place

275 Kent Street

Sydney, New South Wales 2000

Australia

 

Westpac Banking Corporation
Registration Statement on Form F-3

 

Ladies and Gentlemen:

 

We have acted as special counsel to Westpac Banking Corporation (the “ Bank ”), a corporation incorporated in the Commonwealth of Australia (“ Australia ”) under the Corporations Act 2001 of Australia and registered in New South Wales, in connection with the filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “ Act ”), of a Registration Statement on Form F-3 (the “ Registration Statement ”), relating to the offer and sale by the Bank from time to time of (i) senior debt securities of the Bank (the “ Senior Debt Securities ”) to be issued pursuant to an Indenture (the “ Senior Indenture ”), dated as of July 1, 1999, between the Bank and The Bank of New York Mellon as successor to The Chase Manhattan Bank, as trustee (the “ Senior Trustee ”), and (ii) subordinated debt securities of the Bank (the “ Subordinated Debt Securities ” and together with the Senior Debt Securities, the “ Debt Securities ”) to be issued pursuant to an Amended and Restated Subordinated Indenture (the “ Subordinated Indenture ” and, together with the Senior Indenture, the “ Indentures ”), dated as of May 15, 2003, between the Bank and The Bank of New York Mellon as successor to JPMorgan Chase Bank, as trustee (the “ Subordinated Trustee ” and together with the Senior Trustee, the “ Trustee ”).

 

In rendering the opinions expressed below, ( a ) we have examined and relied on the originals, or copies certified or otherwise identified to our satisfaction, of such agreements, documents and records of the Bank and such other instruments and certificates of public officials and officers and representatives of the Bank as we have deemed necessary or appropriate for the purposes of such opinions, ( b ) we have examined and relied as to factual matters upon, and have assumed the accuracy of, the statements made in the certificates of public officials and officers and representatives of the Bank delivered to us and ( c ) we have made such investigations of law as we have deemed necessary or appropriate as a basis for such opinions .  In rendering the opinions expressed below, we have assumed with your permission, without independent investigation or inquiry, ( i ) the power and authority of the Trustee to enter into and

 



 

perform its obligations under each of the Indentures, ( ii ) the due authorization, execution and delivery of each of the Indentures by the Trustee and ( iii ) the enforceability of each of the Indentures against the Trustee and the Subordinated Indenture, in so far as it is governed by the laws of Australia, against the Bank .

 

                Based upon and subject to the foregoing and the assumptions, qualifications and limitations hereinafter set forth, we are of the opinion that:

 

1.                                        When ( i ) the terms of the Senior Debt Securities have been duly authorized and approved by all necessary action of the Board of Directors of the Bank (the “ Board of Directors ”) or a duly authorized officer of the Bank pursuant to authority duly delegated by the Board of Directors of the Bank (an “ Authorized Officer ”), ( ii ) the terms of the Senior Debt Securities have been duly established in accordance with the Senior Indenture and so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Bank and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank and ( iii ) the Senior Debt Securities have been duly executed, authenticated, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto and in accordance with the Senior Indenture and any underwriting agreement relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors or an Authorized Officer, the Senior Debt Securities will be validly issued and will constitute valid and binding obligations of the Bank enforceable against the Bank in accordance with their terms.

 

2.                                        When ( i ) the terms of the Subordinated Debt Securities have been duly authorized and approved by all necessary action of the Board of Directors or an Authorized Officer, ( ii ) the terms of the Subordinated Debt Securities have been duly established in accordance with the Subordinated Indenture and so as not to violate any applicable law, rule or regulation or result in a default under or breach of any agreement or instrument binding upon the Bank and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Bank and ( iii ) the Subordinated Debt Securities have been duly executed, authenticated, issued and delivered as contemplated by the Registration Statement and any prospectus supplement relating thereto and in accordance with the Subordinated Indenture and any underwriting agreement relating to such issuance, against payment of the consideration fixed therefor by the Board of Directors or an Authorized Officer, the Subordinated Debt Securities will be validly issued and, in so far as they are governed by the laws of the State of New York, will constitute valid and binding obligations of the Bank enforceable against the Bank in accordance with their terms.

 

Our opinions set forth above are subject to the effects of ( i ) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium laws, and other similar laws relating to or affecting enforcement of creditors’ rights or remedies generally, ( ii ) general equitable principles (whether considered in a proceeding

 

2



 

in equity or at law) and ( iii ) concepts of good faith, reasonableness and fair dealing, and standards of materiality.  Without limiting the foregoing, we express no opinion as to the validity, binding effect or enforceability of any provision of the Indentures or the Debt Securities that purports to ( i ) waive, release or vary any defense, right or privilege of, or any duties owing to, any party to the extent that such waiver, release or variation may be limited by applicable law, ( ii ) constitute a waiver of inconvenient forum or improper venue, ( iii ) relate to the subject matter jurisdiction of a court to adjudicate any controversy, ( iv ) grant a right to collect any amount that a court determines to constitute unearned interest, or post-judgment interest or a penalty or forfeiture, ( v ) maintain or impose any obligation to pay any amount in U.S. dollars where a final judgment concerning such obligation is rendered in another currency or (vi) provide for liquidated damages or otherwise specify or limit damages, liabilities or remedies.  In addition, the enforceability of any provision in the Indentures or the Debt Securities to the effect that ( x ) the terms thereof may not be waived or modified except in writing, ( y ) the express terms thereof supersede any inconsistent course of dealing, performance or usage or ( z ) certain determinations made by one party shall have conclusive effect, may be limited under certain circumstances.  We wish to call to your attention that the enforceability of waivers of immunity is subject to the limitations imposed by the U.S. Foreign Sovereign Immunities Act of 1976, as amended.

 

We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York, as currently in effect.

 

We have relied upon the opinion, dated today and addressed to you, of Grant Patrick Dillon Rennie, Counsel and Head of Legal Group Treasury at the Bank, as to certain matters of Australian law, and all of the assumptions and qualifications set forth in such opinion are incorporated herein.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading “Validity of Securities” in the Prospectus forming a part thereof.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

 

Very truly yours,

 

/s/ Debevoise & Plimpton LLP

 

3




Exhibit 5.2

 

[Letterhead of Westpac Banking Corporation]

 

16 September 2008

 

Westpac Banking Corporation

Westpac Place

275 Kent Street

Sydney, New South Wales 2000

Australia

 

Westpac Banking Corporation
Registration Statement on Form F-3

 

Ladies and Gentlemen:

 

I, Grant Patrick Dillon Rennie, in the course of my employment as Counsel & Head of Legal, Group Treasury of Westpac Banking Corporation (the “ Bank ”), a corporation incorporated in the Commonwealth of Australia (“ Australia ”) under the Corporations Act 2001 of Australia and registered in New South Wales, have acted as internal counsel for the Bank in connection with the filing with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “ Act ”), of a Registration Statement on Form F-3 (the “ Registration Statement ”), relating to the offer and sale by the Bank from time to time of (i) senior debt securities of the Bank (the “ Senior Debt Securities ”) to be issued pursuant to an Indenture (the “ Senior Indenture ”), dated as of July 1, 1999, between the Bank and The Bank of New York Mellon as successor to The Chase Manhattan Bank, as trustee (the “ Senior Trustee ”), and (ii) subordinated debt securities of the Bank (the “ Subordinated Debt Securities ” and together with the Senior Debt Securities, the “ Debt Securities ”) to be issued pursuant to an Amended and Restated Subordinated Indenture (the “ Subordinated Indenture ” and, together with the Senior Indenture, the “ Indentures ”), dated as of May 15, 2003, between the Bank and The Bank of New York Mellon as successor to JPMorgan Chase Bank, as trustee (the “ Subordinated Trustee ” and together with the Senior Trustee, the “ Trustee ”).

 

In so acting, I or other lawyers employed by the Bank working under my supervision have examined the following documents: ( a ) the form of the Registration Statement and the prospectus contained therein (the “ Prospectus ”) and ( b ) the Indentures.  In rendering the opinions expressed below, I have examined and relied on the originals, or copies certified or otherwise identified to my satisfaction, of such agreements, documents and records of the Bank and such other instruments and certificates of public officials and officers and representatives of the Bank as I have deemed necessary or appropriate for the purposes of such opinions.  I or other lawyers employed by the Bank working under my supervision have examined and relied as to factual matters upon, and have assumed the accuracy of, the statements made in the certificates of public officials and officers and representatives of the Bank delivered to me and have made such investigations of law as I have deemed necessary or appropriate as a basis for such opinions .

 



 

I have assumed ( i ) the authenticity of all seals and signatures, ( ii ) the completeness, and the conformity to original instruments, of all copies submitted to me, and that any document (other than the Indentures) submitted to me continues in full force and effect, ( iii ) the Indentures are within the capacity and powers of, and have been validly authorised, executed and delivered by and are binding on, the parties to them other than the Bank, ( iv ) the Bank entered each Indenture and carries out the transactions contemplated in the Indentures for its benefit and for the purposes of its business, ( v ) no entity has engaged or will engage in misleading or unconscionable conduct or is or will be involved in or a party to any relevant transaction or any associated activity in a manner or for a purpose not evident on the face of the Indentures which might render the Indentures or any relevant transaction or associated activity in breach of law, void or voidable, ( vi ) insofar as any obligation under the Indentures is to be performed in any jurisdiction other than Australia, its performance will not be illegal or unenforceable under the law of that jurisdiction, ( vii ) each Indenture constitutes legal, valid and binding obligations of the Bank under the laws of the State of New York enforceable in competent courts of that jurisdiction and ( viii ) formalities for execution by the Bank required by the law of the place of execution of each Indenture have been complied with.

 

Based upon and subject to the foregoing and the assumptions, qualifications and limitations hereinafter set forth, I am of the opinion that:

 

1.                                        The Bank has been duly incorporated, is a validly existing corporation under the laws of Australia and is authorised to carry on a banking business under the laws of Australia.

 

2.                                        The Bank has the corporate power and authority to enter into the Senior Indenture and the Senior Indenture has been duly authorised, executed and delivered by or on behalf of the Bank and, in so far as it is governed by Australian law, constitutes a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms.  The Bank has the corporate power and authority to issue the Senior Debt Securities.

 

3.                                        The Bank has the corporate power and authority to enter into the Subordinated Indenture and the Subordinated Indenture has been duly authorised, executed and delivered by or on behalf of the Bank and, in so far as it is governed by Australian law, constitutes a valid and binding agreement of the Bank, enforceable against the Bank in accordance with its terms.  The Bank has the corporate power and authority to issue the Subordinated Debt Securities.

 

4.                                        When (i) the issuance, execution and delivery by the Bank of any Debt Securities shall have been duly authorised by all necessary corporate action of the Bank and (ii) such Debt Securities shall have been duly executed and delivered by the Bank, authenticated by the Trustee and sold as contemplated by the Registration

 

2



 

Statement, the Prospectus, the supplement or supplements to the Prospectus, the Senior Indenture or the Subordinated Indenture, assuming that the terms of such Debt Securities are in compliance with then applicable law, such Debt Securities will be validly issued and, in so far as they are governed by the laws of Australia, will constitute legal, valid and binding obligations of the Bank enforceable against the Bank in accordance with their terms.

 

The opinions set forth above are subject to the following additional qualifications:

 

( a )                                   I express no opinion as to any laws other than the laws of Australia as in force at the date of this opinion.

 

( b )                                  My opinion that an obligation or document is enforceable in accordance with its terms means that the obligation or document is of a type and form which courts in Australia enforce.  It does not mean that the obligation or document can necessarily be enforced in accordance with its terms in all circumstances.  In particular:

 

( i ) equitable remedies, such as injunction and specific performance, are discretionary;

 

( ii ) the enforceability of an obligation or document may be affected by statutes of limitation, by estoppel, waiver and similar principles, by the doctrine of frustration, by laws concerning insolvency, bankruptcy, liquidation, administration or reorganisation, or by other laws generally affecting creditors’ or counterparites’ rights or duties;

 

( iii ) Section 13A of the Banking Act 1959 of Australia (“ Banking Act ”) provides that in the event an authorized deposit-taking institution (an “ ADI ”), of which the Bank is one, becomes unable to meet its obligations or suspends payment thereof, the assets of such ADI in Australia shall be available to meet its deposit liabilities in Australia (and such liabilities would not include any sums payable in respect of the Debt Securities) prior to the satisfaction of its other liabilities;

 

( iv ) Section 16(2) of the Banking Act provides that debts due to the Australian Prudential Regulation Authority under section 16(1) shall, in the winding up of the Bank have, subject to section 13A(3) of the Banking Act, priority over all other unsecured debts of Bank; and

 

( v ) Section 86 of the Reserve Bank Act 1959 of Australia provides that, subject to sections 13A(3) and 16(2) of the Banking Act, debts of the Bank due to the Reserve Bank of Australia would, in a winding up of the Bank, have priority over any other debts of the Bank other than debts due to Australia.

 

3



 

( c )                                   Any provision of the Indentures that certain calculations, determinations or certificates will be conclusive and binding will not apply if those calculations, determinations or certificates are fraudulent or manifestly inaccurate.

 

( d )                                  Any clause providing for the severability of any provision of any Indenture may not be enforceable in accordance with its terms, as a court may reserve to itself a decision as to whether any provision is severable.

 

( e )                                   The obligation of a party under any Indenture to pay interest on overdue amounts at a rate higher than the rate applying before the amount fell due may be held to constitute a penalty and be unenforceable.

 

( f )                                     I express no opinion on any provision in any Indenture requiring written amendments and waivers insofar as it suggests that oral or other modifications, amendments or waivers could not be effectively agreed on or granted between or by the parties.

 

( g )                                  The courts might not give full effect to an indemnity for legal costs or for penalties on taxes.

 

( h )                                  I express no opinion as to ( i ) whether a judgment by a court would be given in a currency other than Australian dollars, or ( ii ) the date on which a conversion from foreign currency would be made for the purpose of enforcing a judgment.

 

( i )                                      Purported waivers of statutory rights or agreements not to sue or agreements to agree or negotiate or consult may not be enforceable.

 

( j )                                      Regulations in Australia restrict or prohibit payments, transactions and dealings with assets having a prescribed connection with certain countries or named individuals or entities subject to international sanctions or associated with terrorism.

 

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to my name under the heading “Validity of Securities” in the Prospectus forming a part thereof.  In giving such consent, I do not thereby admit that I am in the category of persons whose consent is required under Section 7 of the Act.

 

This opinion is given as of 16 September 2008, and no persons other than Debevoise & Plimpton LLP is entitled to rely on this opinion.  This opinion is strictly limited to the matters stated in it and does not by implication apply to other matters.  It is also limited to the facts and circumstances as of the date the opinion is given.

 

Very truly yours,

 

/s/ Grant Patrick Dillon Rennie

 

4




Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Westpac Banking Corporation of our report dated 1 November 2007 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Westpac Banking Corporation’s Annual Report on Form 20-F for the year ended 30 September, 2007. We also consent to the reference to us under the heading “Experts” in such Registration Statement.

 

 

/s/ PricewaterhouseCoopers

 

 

 

PricewaterhouseCoopers

 

Sydney, Australia

 

16 September, 2008

 

 

 

/s/ Ian Hammond

 

Ian Hammond

 

Partner

 

 




Exhibit 24.1

 

POWER OF ATTORNEY

 

Each of the undersigned does hereby:

 

(i)                                                      make, constitute and appoint Manuela Adl, Senior Vice President and Chief Operating Officer, Sean Crellin, Vice President Westpac Institutional Bank New York, Christopher Bannister, Managing Director, Europe and America, Curt Zuber, Group Treasurer and Paddy Rennie, Counsel & Head of Legal Group Treasury, and each of them, with full power to act as his or her true and lawful attorneys-in-fact and agents, in his or her name, place and stead to execute on his or her behalf, as an officer and/or director of the Westpac Banking Corporation (the “Company”), one or more Registration Statements of the Company on Form F-3 (the “Registration Statement”), including a prospectus and exhibits to such registration statement, and any and all amendments or supplements to the Registration Statement (including any and all post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act of 1933 (the “Act”), and any applicable securities exchange or securities self-regulatory body, and any and all other instruments which any of said attorneys-in-fact and agents deems necessary or advisable to enable the Company to comply with the Act, the rules, regulations and requirements of the SEC in respect thereof, and, if applicable, the securities or Blue Sky laws of any State or other governmental subdivision;

 

(ii)                                                  give and grant to each of said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing whatsoever necessary or appropriate to be done in and about the premises as he or she might or could do in person, with full power of substitution and resubstitution; and

 

(iii)                                              ratify and confirm all that his or her said attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to be done by virtue hereof.

 

IN WITNESS WHEREOF, the undersigned has hereunto subscribed this power of attorney this 2nd day of September, 2008.

 



 

/s/ Ted Evans

 

Chairman

Ted Evans

 

 

 

 

 

/s/ Elizabeth Bryan

 

Director

Elizabeth Bryan

 

 

 

 

 

/s/ Gordon Cairns

 

Director

Gordon Cairns

 

 

 

 

 

/s/ Carolyn Hewson

 

Director

Carolyn Hewson

 

 

 

 

 

/s/ Lindsay Maxsted

 

Director

Lindsay Maxsted

 

 

 

 

 

/s/ Peter Wilson

 

Director

Peter Wilson

 

 

 

 

 

/s/ Gail Kelly

 

Managing Director and Chief Executive
Officer (Principal Executive Officer)

Gail Kelly

 

 

 

 

 

/s/ Philip Coffey

 

Chief Financial Officer
(Principal Financial Officer)

Philip Coffey

 

 

 

 

 

/s/ Peter King

 

General Manager Group Finance
(Principal Accounting Officer)

Peter King

 

 

 

 

 

/s/ Manuela Adl

 

Authorized Representative in the
United States

Manuela Adl

 

 

 




 

Exhibit 25.1

 

 

 

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           |    |

 


 

THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)

 

New York
(State of incorporation
if not a U.S. national bank)

 

13-5160382
(I.R.S. employer
identification no.)

 

 

 

One Wall Street, New York, N.Y.
(Address of principal executive offices)

 

10286
(Zip code)

 

Robert Sussman
Legal Department
The Bank of New York Mellon
One Wall Street, 29 th Floor
New York, NY 10286
(212) 635-1889

(Name, address and telephone number of agent for service)

 


 

WESTPAC BANKING CORPORATION
(Exact name of obligor as specified in its charter)

 

Australia
(State or other jurisdiction of
incorporation or organization)

 

98-6008211
(I.R.S. employer
identification no.)

 

 

 

275 Kent Street, Sydney NSW 2000
Australia

(Address of principal executive offices)

 


(Zip code)

 


 

Senior Debt Securities
(Title of the indenture securities)

 

 

 



 

 

1.                                       General information.  Furnish the following information as to the Trustee:

 

(a)                                   Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

Superintendent of Banks of the State of New York

 

One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223

 

 

 

Federal Reserve Bank of New York

 

33 Liberty Street, New York, N.Y. 10045

 

 

 

Federal Deposit Insurance Corporation

 

Washington, D.C. 20429

 

 

 

New York Clearing House Association

 

New York, New York 10005

 

(b)                                   Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                        A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

2



 

4.                                        A copy of the existing By-laws of the Trustee.  (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-121195).

 

6.                                        The consent of the Trustee required by Section 321(b) of the Act.  (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152735).

 

7.                                        A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

3



 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 16th day of  September 2008.

 

 

 

THE BANK OF NEW YORK MELLON

 

 

 

 

 

 

 

 

 

By:

/s/ Catherine F. Donohue

 

 

Name:

Catherine F. Donohue

 

 

Title:

Vice President

 

4



 

EXHIBIT 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK

 

of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business June 30, 2008, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

ASSETS

 

Dollar Amounts
In Thousands

 

Cash and balances due from depository institutions:

 

 

 

Noninterest-bearing balances and currency and coin

 

3,463,000

 

Interest-bearing balances

 

31,232,000

 

Securities:

 

 

 

Held-to-maturity securities

 

1,631,000

 

Available-for-sale securities

 

24,769,000

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

Federal funds sold in domestic offices

 

19,485,000

 

Securities purchased under agreements to resell

 

0

 

Loans and lease financing receivables:

 

 

 

Loans and leases held for sale

 

0

 

Loans and leases, net of unearned income

 

33,282,000

 

LESS: Allowance for loan and lease losses

 

244,000

 

Loans and leases, net of unearned income and allowance

 

33,038,000

 

Trading assets

 

4,207,000

 

Premises and fixed assets (including capitalized leases)

 

906,000

 

Other real estate owned

 

6,000

 

Investments in unconsolidated subsidiaries and associated companies

 

760,000

 

Not applicable

 

 

 

Intangible assets:

 

 

 

Goodwill

 

2,495,000

 

Other intangible assets

 

998,000

 

Other assets

 

7,072,000

 

Total assets

 

130,062,000

 

 

 



 

 

LIABILITIES

 

 

 

Deposits:

 

 

 

In domestic offices

 

34,562,000

 

Noninterest-bearing

 

20,410,000

 

Interest-bearing

 

14,152,000

 

In foreign offices, Edge and Agreement subsidiaries, and IBFs

 

64,413,000

 

Noninterest-bearing

 

2,092,000

 

Interest-bearing

 

62,321,000

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

Federal funds purchased in domestic offices

 

884,000

 

Securities sold under agreements to repurchase

 

89,000

 

Trading liabilities

 

3,678,000

 

Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)

 

1,999,000

 

Not applicable

 

 

 

Not applicable

 

 

 

Subordinated notes and debentures

 

2,940,000

 

Other liabilities

 

12,854,000

 

Total liabilities

 

121,419,000

 

 

 

 

 

Minority interest in consolidated subsidiaries

 

133,000

 

 

 

 

 

EQUITY CAPITAL

 

 

 

Perpetual preferred stock and related surplus

 

0

 

Common stock

 

1,135,000

 

Surplus (exclude all surplus related to preferred stock)

 

2,375,000

 

Retained earnings

 

6,131,000

 

Accumulated other comprehensive income

 

–1,131,000

 

Other equity capital components

 

0

 

Total equity capital

 

8,510,000

 

Total liabilities, minority interest, and equity capital

 

130,062,000

 

 

 



 

 

I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Thomas P. Gibbons,
Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Gerald L. Hassell
Steven G. Elliott
Robert P. Kelly

 

Directors

 

 




Exhibit 25.2

 

 

 

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           |    |

 


 

THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)

 

New York
(State of incorporation
if not a U.S. national bank)

 

13-5160382
(I.R.S. employer
identification no.)

 

 

 

One Wall Street, New York, N.Y.
(Address of principal executive offices)

 

10286
(Zip code)

 

 

 

Robert Sussman
Legal Department
The Bank of New York Mellon
One Wall Street, 29 th Floor
New York, NY 10286
(212) 635-1889

(Name, address and telephone number of agent for service)

 


 

WESTPAC BANKING CORPORATION
(Exact name of obligor as specified in its charter)

 

Australia
(State or other jurisdiction of
incorporation or organization)

 

98-6008211
(I.R.S. employer
identification no.)

 

 

 

275 Kent Street, Sydney NSW 2000
Australia

(Address of principal executive offices)

 


(Zip code)

 


 

Subordinated Debt Securities
(Title of the indenture securities)

 

 

 



 

 

1.                                       General information.  Furnish the following information as to the Trustee:

 

(a)                                   Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

Superintendent of Banks of the State of New York

 

One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223

 

 

 

Federal Reserve Bank of New York

 

33 Liberty Street, New York, N.Y. 10045

 

 

 

Federal Deposit Insurance Corporation

 

Washington, D.C. 20429

 

 

 

New York Clearing House Association

 

New York, New York 10005

 

(b)                                   Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                        A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).

 

2



 

4.                                        A copy of the existing By-laws of the Trustee.  (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-121195).

 

6.                                        The consent of the Trustee required by Section 321(b) of the Act.  (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152735).

 

7.                                        A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

3



 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 16th day of  September 2008.

 

 

 

THE BANK OF NEW YORK MELLON

 

 

 

 

 

 

 

 

 

By:

/s/ Catherine F. Donohue

 

 

Name:

Catherine F. Donohue

 

 

Title:

Vice President

 

4



 

EXHIBIT 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK

 

of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business June 30, 2008, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

ASSETS

 

Dollar Amounts
In Thousands

 

Cash and balances due from depository institutions:

 

 

 

Noninterest-bearing balances and currency and coin

 

3,463,000

 

Interest-bearing balances

 

31,232,000

 

Securities:

 

 

 

Held-to-maturity securities

 

1,631,000

 

Available-for-sale securities

 

24,769,000

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

Federal funds sold in domestic offices

 

19,485,000

 

Securities purchased under agreements to resell

 

0

 

Loans and lease financing receivables:

 

 

 

Loans and leases held for sale

 

0

 

Loans and leases, net of unearned income

 

33,282,000

 

LESS: Allowance for loan and lease losses

 

244,000

 

Loans and leases, net of unearned income and allowance

 

33,038,000

 

Trading assets

 

4,207,000

 

Premises and fixed assets (including capitalized leases)

 

906,000

 

Other real estate owned

 

6,000

 

Investments in unconsolidated subsidiaries and associated companies

 

760,000

 

Not applicable

 

 

 

Intangible assets:

 

 

 

Goodwill

 

2,495,000

 

Other intangible assets

 

998,000

 

Other assets

 

7,072,000

 

Total assets

 

130,062,000

 

 



 

LIABILITIES

 

 

 

Deposits:

 

 

 

In domestic offices

 

34,562,000

 

Noninterest-bearing

 

20,410,000

 

Interest-bearing

 

14,152,000

 

In foreign offices, Edge and Agreement subsidiaries, and IBFs

 

64,413,000

 

Noninterest-bearing

 

2,092,000

 

Interest-bearing

 

62,321,000

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

Federal funds purchased in domestic offices

 

884,000

 

Securities sold under agreements to repurchase

 

89,000

 

Trading liabilities

 

3,678,000

 

Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)

 

1,999,000

 

Not applicable

 

 

 

Not applicable

 

 

 

Subordinated notes and debentures

 

2,940,000

 

Other liabilities

 

12,854,000

 

Total liabilities

 

121,419,000

 

 

 

 

 

Minority interest in consolidated subsidiaries

 

133,000

 

 

 

 

 

EQUITY CAPITAL

 

 

 

Perpetual preferred stock and related surplus

 

0

 

Common stock

 

1,135,000

 

Surplus (exclude all surplus related to preferred stock)

 

2,375,000

 

Retained earnings

 

6,131,000

 

Accumulated other comprehensive income

 

–1,131,000

 

Other equity capital components

 

0

 

Total equity capital

 

8,510,000

 

Total liabilities, minority interest, and equity capital

 

130,062,000

 

 



 

I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

 

Thomas P. Gibbons,
Chief Financial Officer

 

We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

 

Gerald L. Hassell
Steven G. Elliott
Robert P. Kelly

 

Directors