AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 9, 2016

Registration No. 333-207931


SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



Post-Effective Amendment No. 1

to

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)



Sean Crellin
Director—Corporate, Legal and Secretariat
Westpac Banking Corporation
575 Fifth Avenue, 39th Floor
New York, New York 10017-2422
(212) 551-1800

(Name, address, including zip code, and telephone number,
including area code, of agent for service)

Copies to:

Matthew E. Kaplan, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022



CALCULATION OF REGISTRATION FEE

       
 
Title of each class of securities
to be registered

  Proposed maximum
aggregate offering
price(1)

  Amount of
registration fee(1)

 

Senior Debt Securities

       
 

Subordinated Debt Securities

       
 

Ordinary Shares

       

 

(1)
An unspecified aggregate initial offering price and number or amount of the securities of each identified class is being registered as may from time to time be sold at unspecified prices. The registrant is relying on Rule 456(b) and Rule 457(r) under the Securities Act of 1933, as amended, to defer payment of all of the registration fee.

   



EXPLANATORY NOTE

        This Post-Effective Amendment No. 1 to the Registration Statement on Form F-3 (Registration No. 333-207931) has been filed by the registrant solely for the purpose of (i) amending and restating the "Description of the Debt Securities" to include two separate sections: "Description of the Senior Debt Securities" and "Description of the Subordinated Debt Securities" to reflect amendments to certain provisions applicable to the Senior Debt Securities and the Subordinated Debt Securities, (ii) amending the "Taxation" section to reflect the impact of the amendments to certain provisions applicable only to Subordinated Debt Securities, (iii) adding the "Description of Ordinary Shares" section and (iv) filing the Second Amended and Restated Subordinated Indenture, dated as of November 9, 2016, between Westpac Banking Corporation and The Bank of New York Mellon, as trustee, and the Seventeenth Supplemental Indenture, dated as of November 9, 2016, between us and The Bank of New York Mellon, as trustee, as exhibits hereto. No changes have been made to any other section of the prospectus included in Part I or to any other sections of the Registration Statement.


PROSPECTUS

LOGO

Westpac Banking Corporation

ABN 33 007 457 141

Debt Securities

Ordinary Shares

        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 the Debt Securities will be listed on any securities exchange. The Ordinary Shares are currently listed on the Australian Securities Exchange and the New Zealand Exchange, and American Depository Shares representing Ordinary Shares are currently listed on the New York Stock Exchange.

        The Debt Securities are not protected accounts or deposit liabilities for the purpose of the Banking Act 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 November 9, 2016.


TABLE OF CONTENTS

ABOUT THIS PROSPECTUS

 
1

FORWARD-LOOKING STATEMENTS

 
1

WESTPAC BANKING CORPORATION

 
4

USE OF PROCEEDS

 
6

DESCRIPTION OF THE DEBT SECURITIES

 
7

DESCRIPTION OF ORDINARY SHARES

 
58

TAXATION

 
60

PLAN OF DISTRIBUTION

 
77

WHERE YOU CAN FIND MORE INFORMATION

 
79

INCORPORATION OF INFORMATION WE FILE WITH THE SEC

 
79

ENFORCEABILITY OF FOREIGN JUDGMENTS IN AUSTRALIA

 
80

CURRENCY OF PRESENTATION AND EXCHANGE RATES

 
80

VALIDITY OF SECURITIES

 
81

EXPERTS

 
81

LIMITATION ON INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM'S LIABILITY

 
81


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, change or clarify information contained in this prospectus. The rules of the SEC allow us to incorporate by reference information into this prospectus. The 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". If the information contained or incorporated by reference in this prospectus differs from any prospectus supplement, you should rely on the prospectus supplement. 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 the "Group", "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 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.

        All references in this prospectus, any supplement hereto or in any document incorporated or deemed to be incorporated by reference in this prospectus to websites are, unless we expressly state otherwise, intended to be inactive textual references for information only and any information contained in or accessible through any such website does not form a part of this prospectus, unless we specifically state in this prospectus or in any such document that all or any portion of such information is incorporated by reference in this prospectus.


FORWARD-LOOKING STATEMENTS

        This prospectus contains or incorporates by reference statements that constitute "forward-looking" statements within the meaning of Section 27A of the Securities Act of 1933, as amended, which we refer to as the Securities Act. Forward-looking statements are statements about matters that are not historical facts. Forward-looking statements appear in a number of places in this prospectus and the information incorporated by reference herein and include statements regarding our intent, belief or current expectations with respect to our business and operations, market conditions, results of operations and financial condition including, without limitation, future loan loss provisions and financial support to certain borrowers. We use words such as "will", "may", "expect", "intend", "seek", "would",

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"should", "could", "continue", "plan", "estimate", "anticipate", "believe", "probability", "risk", "aim" or other similar words to identify forward-looking statements. These forward-looking statements reflect our current views with respect to future events and are subject to change, certain risks, uncertainties and assumptions 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 our expectations or that the effect of future developments on us will be those anticipated. Actual results could differ materially from those which 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 for the financial year ended September 30, 2016 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. We are under no obligation, and do not intend, to update any forward-looking statements contained or incorporated by reference in this prospectus, whether as a result of new information, future events or otherwise.

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WESTPAC BANKING CORPORATION

        We are one of the four major banking organizations in Australia and one of the largest banking organizations in New Zealand. We provide a broad range of banking and financial services in these markets, including consumer, business and institutional banking and wealth management services.

        We have branches, affiliates and controlled entities throughout Australia, New Zealand, Asia and in the Pacific region, and maintain branches and offices in some of the key financial centers around the world.

        We were founded in 1817 and were the first bank 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 following our merger with the Commercial Bank of Australia. On August 23, 2002, we were registered as a public company limited by shares under the Australian Corporations Act. Our principal office is located at 275 Kent Street, Sydney, New South Wales, 2000, Australia. Our telephone number for calls within Australia is 132 032 and our international telephone number is (+61) 2 9293 9270.

        As at September 30, 2016, we had total assets of A$839 billion. Our market capitalization as at November 7, 2016 was approximately A$102 billion.

        Our operations comprise the following key customer-facing business divisions operating under multiple brands serving over 13 million customers.

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5



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.

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DESCRIPTION OF THE DEBT SECURITIES

         The following discussion describes the general terms and conditions applicable to Debt Securities that we may offer. In addition to these general provisions, in connection with an investment in a particular series of Debt Securities, investors should review the description of the provisions and any risk factors applicable to that series of Debt Securities, including those set forth herein and in any applicable prospectus supplement or term sheet.

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

        Unless the context otherwise requires, references to "we", "us", "our" and "Westpac" in this description of the Debt Securities refer only to Westpac Banking Corporation ABN 33 007 457 14 and not to any of its subsidiaries.


Description of the Senior Debt Securities

        The Senior Debt Securities will be issued in one or more series under a Senior 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, as supplemented and amended by the First Supplemental Indenture, dated as of August 27, 2009, between us and the trustee, as further supplemented and amended by the Fifth Supplemental Indenture, dated as of August 14, 2012, between us and the trustee and the Seventeenth Supplemental Indenture, dated as of November 9, 2016, between us and the trustee, which we refer to collectively as the senior indenture. The senior indenture provides that there may be more than one trustee, each with respect to one or more series of Senior Debt Securities.

        We have summarized below certain terms of the senior indenture which we believe will be most important to your decision to invest in our Senior Debt Securities. You should keep in mind, however, that it is the senior indenture, and not this summary, which defines your rights as a holder of Senior Debt Securities. There may be other provisions in the senior indenture which are also important to you. You should read the senior indenture for a full description of the terms of the Senior Debt Securities. The senior indenture is filed as an exhibit 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. References in any parenthetical below to sections or articles are to sections or articles of the senior indenture.

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

7


        Under Section 13A(3) of the Banking Act 1959 of Australia, which we refer to as the Australian Banking Act, Section 16 of the Australian Banking Act and Section 86 of the Reserve Bank Act 1959 of Australia, which we refer to as the Reserve Bank Act, certain debts of Westpac are preferred by law, as described below.

        Section 13A(3) of the Australian Banking Act provides that if Westpac becomes unable to meet its obligations or suspends payment, the assets of Westpac in Australia are to be available to satisfy, in priority to all other liabilities of Westpac, including the Senior Debt Securities:

        A "protected account" is either (a) an account where Westpac is required to pay the accountholder, on demand or at an agreed time, the net credit balance of the account, or (b) another account or financial product prescribed by regulation.

        Under Section 16(2) of the Australian Banking Act, certain other debts of Westpac due to APRA shall in a winding-up of Westpac have, subject to Section 13A(3) of the Australian Banking Act, priority over all other unsecured debts of Westpac. Further, Section 86 of the Reserve Bank Act provides that in a winding-up of Westpac, debts due by Westpac to the RBA shall, subject to Section 13A(3) of the Australian Banking Act, have priority over all other debts of Westpac. Further, certain assets, such as the assets of Westpac in a cover pool for covered bonds issued by Westpac, are excluded from constituting assets in Australia for the purposes of Section 13(A) of the Australian Banking Act, and those assets are subject to the prior claims of the covered bond holders and certain other secured creditors in respect of the covered bonds.

        The Senior Debt Securities are not protected accounts or deposit liabilities for the purpose of the Australian Banking Act, and are not insured by the United States Federal Deposit Insurance Corporation or any other governmental agency or instrumentality.

General Terms of the Senior Debt Securities

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

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        One or more series of Senior 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 Senior Debt Securities may be variable rate Senior Debt Securities that may be exchanged for fixed rate Senior Debt Securities. Any special US federal income and Australian income tax considerations applicable to any series of Senior Debt Securities due to its particular terms will be described in the applicable prospectus supplement or term sheet.

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

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        Holders of such Senior 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 US federal income and Australian tax consequences and special considerations applicable to any series will be described in the applicable prospectus supplement or term sheet.

        Unless otherwise specified in the applicable prospectus supplement or term sheet, the Senior Debt Securities will be issued in fully registered form and in denominations of $1,000 and any integral multiple of $1,000. (Section 3.2 of the senior indenture.) Subject to the limitations provided in the senior indenture and in the applicable prospectus supplement or term sheet, Senior Debt Securities will be issued in registered form and 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 the senior indenture.)

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

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

Global Securities

        Westpac may issue the Senior 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 depository identified in the applicable 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 definitive Senior Debt Securities, a global security may not be transferred except as a whole by the depository for such global security to a nominee of such depository or by a nominee of such depository to such depository or another nominee of such depository or by such depository or any such nominee to a successor of such depository or a nominee of such successor. (Section 2.4 of the senior indenture.)

        The specific terms of the depository arrangement with respect to any Senior Debt Securities of a series and the rights of and limitations upon owners of beneficial interests in a global security, to the extent it differs from the provisions discussed below, will be described in the applicable prospectus supplement or term sheet. We expect that the following provisions will generally apply to depository arrangements.

10


        Upon the issuance of a global security, the depository for such global security or its nominee will credit, on its book entry registration and transfer system, the respective principal amounts of the definitive Senior Debt Securities represented by such global security to the accounts of persons that have accounts with such depository. Such accounts shall be designated by the dealers, underwriters or agents with respect to the Senior Debt Securities or by us if such Senior 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 depository, 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 depository 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 depository for a global security, or its nominee, is the registered owner of a global security, such depository or such nominee, as the case may be, will be considered the sole owner or holder of the Senior Debt Securities represented by that global security for all purposes under the senior indenture. Except as provided below, owners of beneficial interests in a global security will not be entitled to have any of the definitive Senior 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 Senior Debt Securities of such series in definitive form and will not be considered the owners or holders thereof under the senior indenture.

        Payments of principal of, or premium, if any, and interest, if any, on definitive Senior Debt Securities represented by a global security registered in the name of a depository or its nominee will be made to the depository or its nominee, as the case may be, as the registered owner of the global security representing the Senior Debt Securities. None of Westpac, the trustee, any paying agent, the registrar or any underwriter or agent for the Senior Debt Securities will have any responsibility or liability for any aspect of the records relating to or payments made by the depository or any participants on account of beneficial ownership interests in the global security for the Senior Debt Securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

        We expect that the depository for a series of Senior Debt Securities or its nominee, upon receipt of any payment of principal, premium or interest in respect of a permanent global security representing the Senior 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 Senior Debt Securities as shown on the records of the depository 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 registered in "street name". Such payments will be the responsibility of such participants.

        If the depository for a series of Senior Debt Securities notifies us at any time that it is unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by us within 90 days, Westpac will issue definitive Senior Debt Securities of that series in exchange for the global security or securities representing that series of Senior Debt Securities. In addition, we may at any time and in our sole discretion, subject to any limitations described in the applicable prospectus supplement or term sheet relating to the Senior Debt Securities, determine not to have any Senior Debt Securities of a series represented by one or more global securities, and, in such event, will issue definitive Senior Debt Securities of that series in exchange for the global security or securities representing that series of Senior Debt Securities. If definitive Senior Debt Securities are issued, an owner of a beneficial interest

11


in a global security will be entitled to physical delivery of definitive Senior Debt Securities of the series represented by that global security equal in principal amount to that beneficial interest and to have the Senior Debt Securities registered in its name. Definitive Senior Debt Securities of any series so issued will be issued in denominations, unless otherwise specified by us in the applicable prospectus supplement or term sheet, of $1,000 and integral multiples of $1,000 in excess thereof.

Payment of Additional Amounts

        The senior indenture provides that Westpac will pay all amounts that it is required to pay in respect of the Senior Debt Securities without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges imposed or levied by or on behalf of Australia or any political subdivision or taxing authority thereof or therein, unless such 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 Senior Debt Securities, after such withholding or deduction, will equal the amount that the holder would have received in respect of the Senior Debt Securities without such withholding or deduction. However, as described below, the senior indenture provides that, under certain circumstances, Westpac will not pay additional amounts.

        The senior indenture provides that Westpac will pay no additional amounts in respect of Senior Debt Securities for or on account of:

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        In addition, the senior indenture provides that additional amounts will also not be payable by Westpac with respect to any payment on any Senior Debt Security to any holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that payment would, under the laws of Australia or any political subdivision or taxing authority thereof or therein, be treated as being derived or received for tax purposes by a beneficiary or settler of that fiduciary or member of that partnership or a beneficial owner, in each case, who would not have been entitled to those additional amounts had it been the actual holder of such Senior Debt Securities. (Section 9.8 of the senior indenture.)

        If, as a result of Westpac's consolidation or merger with or into an entity organized under the laws of a country other than Australia or a political subdivision of a country other than Australia or the sale, conveyance or transfer by Westpac of all or substantially all its assets to such an entity, such an entity assumes the obligations of Westpac under the senior indenture and the Senior Debt Securities, such entity will pay additional amounts on the same basis as described above, except that references to "Australia" (other than in the exception applicable in the event the holder or beneficial owner of the Senior Debt Securities is an associate of Westpac for purposes of section 128F(6) of the Australian Tax Act) will be treated as references to both Australia and the country in which such entity is organized or resident (or deemed resident for tax purposes). (Section 7.1 of the senior indenture.)

        Westpac, and any other person to or through which any payment with respect to the Senior Debt Securities may be made, shall be entitled to withhold or deduct from any payment with respect to such Senior Debt Securities amounts required to be withheld or deducted under or in connection with FATCA, and holders and beneficial owners of such Senior Debt Securities shall not be entitled to receive any gross up or other additional amounts on account of any such withholding or deduction.

Redemption of Senior Debt Securities

        If the Senior Debt Securities of a series provide for redemption at Westpac's election, unless otherwise provided in the applicable prospectus supplement or term sheet and except as described below under "—Redemption for Taxation Reasons", such redemption shall be on not less than 30 nor more than 60 days' notice and, in the event of redemption in part, the Senior Debt Securities to be

13


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 Senior Debt Securities of such series to their last addresses as they appear on the register of the Senior Debt Securities of such series. (Sections 1.6, 10.3 and 10.4 of the senior indenture.)

        The senior indenture provides that Westpac may, at its option, redeem all, but not less than all, of any series of Senior Debt Securities if:

which change or amendment becomes effective,

and, in each case, as a result of such change or amendment (1) Westpac (or such entity) is or will become obligated to pay any additional amounts as may be necessary so that the net amount received by a holder of Senior Debt Securities, after withholding or deducting any tax, duty, assessment or other governmental charge, will equal the amount that such holder would have received in respect of the Senior Debt Securities without such withholding or deduction (provided that Westpac provides to the trustee an opinion of independent legal advisors of recognized standing to the effect that Westpac is or will become obligated to pay such additional amounts on such Senior Debt Securities as a result of such change or amendment) or (2) Westpac (or such entity) would not be entitled to claim a deduction in computing its taxation liabilities in respect of (A) any payments of interest or such additional amounts or (B) any original issue discount on such Senior Debt Securities.

        Before Westpac (or such entity) redeems any Senior Debt Securities for taxation reasons, it must give the holders of those Senior Debt Securities at least 30 days' written notice and not more than 60 days' written notice of its intention to redeem those Senior Debt Securities, provided that if the earliest date on which (i) Westpac (or such entity) will be obligated to pay any additional amounts necessary so that the net amount received by the holder of the Senior Debt Securities, after the withholding or deduction of any present or future taxes, duties, assessments or other governmental charges imposed or levied by or on behalf of Australia or any political subdivision or taxing authority thereof or therein (unless such withholding or deduction is required by law), will equal the amount that such holder would have received in respect of the Senior Debt Securities without such withholding or deduction, or (ii) Westpac would not be entitled to claim a deduction in respect of any payments of

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interest or such additional amounts on or any original issue discount in respect of Senior Debt Securities in computing its taxation liabilities, would occur less than 45 days after the relevant change or amendment to the applicable laws, regulations, determinations or guidelines, Westpac may give less than 30 days' written notice but in no case less than 15 days' written notice, provided it gives such notice as soon as practicable in all the circumstances.

        If Westpac (or such entity) redeems Senior Debt Securities for taxation reasons, the redemption price for Senior Debt Securities to be redeemed shall equal 100% of the principal amount of the Senior Debt Securities to be redeemed plus accrued but unpaid interest to but excluding the date of redemption. However, if the Senior Debt Securities to be redeemed are outstanding original issue discount securities, such Senior Debt Securities shall be redeemed at the redemption price calculated in accordance with the terms thereof (Section 10.8 of the senior indenture).

Events of Default

        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 33 1 / 3 % 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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        No event of default in respect of the Senior Debt Securities shall occur (other than on account of a decree or order for the Winding-Up of Westpac), solely on account of any failure by Westpac to perform or observe any of its obligations in relation to, the suspension of any payments on or the taking of any proceeding in respect of, any share, Subordinated Debt Security or other security or instrument constituting Tier 1 Capital or Tier 2 Capital (each as defined in "—Description of the Subordinated Debt Securities—Additional Provisions Applicable to Subordinated Debt Securities—Definitions").

        Under the Australian Banking Act, for the purpose of protecting depositors and maintaining the stability of the Australian financial system, APRA has administrative power, among other things, to issue a direction to us regarding the conduct of our business, including prohibiting making payments with respect to our debt obligations (including the Senior Debt Securities), and, if we become unable to meet our obligations or suspend payment (and in certain other limited circumstances), to appoint an "ADI statutory manager" to take control of our business.

        The Australian Banking Act provides that any other party to a contract to which we are a party (which would include the trustee and a holder of the Senior Debt Securities) may not, among other things, accelerate any debt under that contract on the grounds that we are subject to a direction by APRA under the Australian Banking Act that results in an event of default with respect to the Senior Debt Securities or an "ADI statutory manager" is in control of our business, which could prevent the trustee or holders of the Senior Debt Securities from accelerating repayment of the Senior Debt Securities or obtaining or enforcing a judgment for repayment of the Senior Debt Securities following acceleration. However, in the event of a winding-up, the trustee and the holders of the Senior Debt Securities would be entitled to accelerate repayment of the Senior Debt Securities (and exercise any other available remedy).

Other Provisions

        The Trust Indenture Act of 1939, as amended, which we refer to as the Trust Indenture Act, and Section 6.5 of the senior indenture provides that the trustee will, within 90 days after the occurrence of a default in respect of any series of Senior 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 Senior 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 term "default" for the purpose of this provision means any event which is, or after notice or lapse of time or both would become, an event of default as defined in the senior indenture, with respect to Senior Debt Securities of such series.

        The senior indenture provides that the holders of a majority in aggregate principal amount of the outstanding Senior 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 Senior Debt Securities of that series. (Section 5.8 of the senior indenture.)

        The senior indenture provides that the trustee, subject to the provisions of the Trust Indenture Act 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 senior indenture, 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 the senior indenture.)

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

        In certain cases, the holders of a majority in aggregate principal amount of the outstanding Senior Debt Securities of a series may by providing written notice to the trustee, on behalf of the holders of all Senior Debt Securities of that series, waive any past default or event of default, or compliance with certain provisions of the senior indenture, except for defaults or events of default in the payment of the principal of, or premium, if any, or interest on any of the Senior Debt Securities of that series or compliance with certain covenants. (Section 5.7 of the senior indenture.)

Modification of the Indenture

        The senior 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 Senior Debt Securities in order to:

(Section 8.1 of the senior indenture.)

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        The senior 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 Senior Debt Securities of the affected series, to execute supplemental indentures adding any provisions to or changing or eliminating any of the provisions of the senior indenture or modifying the rights of the holders of Senior Debt Securities of that series. No supplemental indenture may, without the consent of the holders of all of the affected Senior Debt Securities, among other things:

(Section 8.2 of the senior indenture.)

Satisfaction and Discharge of the Indenture; Defeasance

        The senior indenture shall generally cease to be of any further effect with respect to a series of Senior 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 Senior Debt Securities of the defeased series and the senior indenture, to the payment, either directly or through any paying agent, as the trustee

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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 the senior indenture.)

Record Dates

        Westpac will generally be entitled to set any date as the record date for the purpose of determining the holders of Senior Debt Securities entitled to give or take any action under the senior indenture in the manner specified in the senior indenture. If a record date is set, action may only be taken by persons who are holders of Senior Debt Securities on the record date. Also, unless otherwise specified in the applicable prospectus supplement or term sheet applicable to a series of Senior Debt Securities, to be effective, any action must be taken within 180 days of the record date. (Section 1.4(g) of the senior indenture.)

Notice

        Notices to holders of Senior 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 Senior Debt Security is registered as the owner thereof for all purposes. (Sections 1.6 and 3.8 of the senior indenture.)

Governing Law

        The senior indenture and the Senior Debt Securities will be governed by, and construed in accordance with, the laws of the State of New York. (Section 1.11 of the senior indenture.)

        The senior 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 Senior 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 the senior indenture.)

Consolidation, Merger or Sale of Assets

        The senior indenture provides 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:

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        Upon any such consolidation, merger or sale where Westpac is not the surviving entity, 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 senior indenture and the Senior Debt Securities and all such obligations of Westpac shall terminate. (Section 7.1 of the senior indenture.)

Concerning the Trustee

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

Consent to Service of Process

        In accordance with the provisions of the senior indenture, we have designated Westpac Banking Corporation, New York Branch, 575 Fifth Avenue, 39th Floor, New York, New York 10017-2422, Attention: Branch Manager, as our authorized agent for service of process in any legal action or proceeding against us with respect to Westpac's obligations under the senior indenture or the Senior 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 the senior indenture.)


Description of the Subordinated Debt Securities

        The Subordinated Debt Securities will be issued under the Second Amended and Restated Subordinated Indenture, dated as of November 9, 2016, between us and The Bank of New York Mellon as the trustee, which we refer to as the subordinated indenture. The subordinated indenture provides that there may be more than one trustee, each with respect to one or more series of Subordinated Debt Securities.

        We have summarized below certain terms of the subordinated indenture which we believe will be most important to your decision to invest in our Subordinated Debt Securities. You should keep in mind, however, that it is the subordinated indenture, and not this summary, which defines your rights as a holder of Subordinated Debt Securities. There may be other provisions in the subordinated indenture which are also important to you. You should read the subordinated indenture for a full description of the terms of the Subordinated Debt Securities. The subordinated indenture is filed as an exhibit to the registration statement that includes this prospectus. See "Where You Can Find More Information" for information on how to obtain copies of the subordinated indenture.

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

        Certain defined terms used in the following description of the terms of the Subordinated Debt Securities have the meanings given to them in "—Additional Provisions Applicable to Subordinated Debt Securities—Definitions."

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Ranking

        The Subordinated Debt Securities are subordinate and junior in right of payment to the Senior Debt Securities and other Senior Creditors (as defined below) in the manner and to the extent described in Section 1 "—Status of the Subordinated Debt Securities—General" below under the caption "—Additional Provisions Applicable to Subordinated Debt Securities".

        Under Section 13A(3) of the Banking Act 1959 of Australia, which we refer to as the Australian Banking Act, Section 16 of the Australian Banking Act and Section 86 of the Reserve Bank Act 1959 of Australia, which we refer to as the Reserve Bank Act, certain debts of Westpac are preferred by law, as described below.

        Section 13A(3) of the Australian Banking Act provides that if Westpac becomes unable to meet its obligations or suspends payment, the assets of Westpac in Australia are to be available to satisfy, in priority to all other liabilities of Westpac, including the Subordinated Debt Securities:

        A "protected account" is either (a) an account where Westpac is required to pay the accountholder, on demand or at an agreed time, the net credit balance of the account, or (b) another account or financial product prescribed by regulation.

        Under Section 16(2) of the Australian Banking Act, certain other debts of Westpac due to APRA shall in a winding-up of Westpac have, subject to Section 13A(3) of the Australian Banking Act, priority over all other unsecured debts of Westpac. Further, Section 86 of the Reserve Bank Act provides that in a winding-up of Westpac, debts due by Westpac to the RBA shall, subject to Section 13A(3) of the Australian Banking Act, have priority over all other debts of Westpac. Further, certain assets, such as the assets of Westpac in a cover pool for covered bonds issued by Westpac, are excluded from constituting assets in Australia for the purposes of Section 13(A) of the Australian Banking Act, and those assets are subject to the prior claims of the covered bond holders and certain other secured creditors in respect of the covered bonds.

        The Subordinated Debt Securities are not protected accounts or deposit liabilities for the purpose of the Australian Banking Act, and are not insured by the United States Federal Deposit Insurance Corporation or any other governmental agency or instrumentality.

General Terms of the Subordinated Debt Securities

        Westpac may issue the Subordinated Debt Securities in one or more series pursuant to an indenture that supplements the subordinated indenture, or a resolution of our board of directors or a duly authorized committee of our board of directors. (Section 3.1 of the subordinated indenture.) The aggregate principal amount of Subordinated Debt Securities that may be issued under the subordinated

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indenture is unlimited. You should refer to the applicable prospectus supplement or term sheet for the specific terms of each series of Subordinated Debt Securities which may, subject to such terms being consistent and in compliance with the Prudential Standards in effect at the time of issuance of such Subordinated Debt Securities, include the following:

        Any special US federal income and Australian income tax considerations applicable to any series of Subordinated Debt Securities due to its particular terms will be described in the applicable prospectus supplement or term sheet.

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        Unless otherwise specified in the applicable prospectus supplement or term sheet, the Subordinated Debt Securities will be issued in fully registered form and in denominations of $1,000 and any integral multiple of $1,000. (Section 3.2 of the subordinated indenture.) Subject to the limitations provided in the subordinated indenture and in the applicable prospectus supplement or term sheet, Subordinated Debt Securities will be issued in registered form and 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 12.2 of the subordinated indenture.)

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

        Subject to applicable law, Westpac or any of its affiliates may at any time purchase or repurchase Subordinated Debt Securities of any series in any manner and at any price, subject to APRA's prior written approval (which may or may not be given). Subordinated Debt Securities of any series purchased by Westpac or any of its affiliates may be held or surrendered by the purchaser of the Subordinated Debt Securities for cancellation or may be resold.

Global Securities

        Westpac may issue the Subordinated Debt Securities of a series in the form of one or more global securities (in whole or in part) that will be deposited with, or on behalf of, a depository identified in the applicable 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 definitive Subordinated Debt Securities, a global security may not be transferred except as a whole by the depository for such global security to a nominee of such depository or by a nominee of such depository to such depository or another nominee of such depository or by such depository or any such nominee to a successor of such depository or a nominee of such successor. (Section 2.4 of the subordinated indenture.)

        The specific terms of the depository arrangement with respect to any Subordinated Debt Securities of a series and the rights of and limitations upon owners of beneficial interests in a global security, to the extent it differs from the provisions discussed below, will be described in the applicable prospectus supplement or term sheet. We expect that the following provisions will generally apply to depository arrangements.

        Upon the issuance of a global security, the depository for such global security or its nominee will credit, on its book entry registration and transfer system, the respective principal amounts of the definitive Subordinated Debt Securities represented by such global security to the accounts of persons that have accounts with such depository and will make adjustments to such amounts in the event of a Conversion or Write-off. Such accounts shall be designated by the dealers, underwriters or agents with respect to the Subordinated Debt Securities or by us if such Subordinated 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 depository, 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 depository 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

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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 depository for a global security, or its nominee, is the registered owner of a global security, such depository or such nominee, as the case may be, will be considered the sole owner or holder of the Subordinated Debt Securities represented by that global security for all purposes under the subordinated indenture. Except as provided below, owners of beneficial interests in a global security will not be entitled to have any of the definitive Subordinated 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 Subordinated Debt Securities of such series in definitive form and will not be considered the owners or holders thereof under the subordinated indenture.

        Payments of principal and interest, if any, on definitive Subordinated Debt Securities represented by a global security registered in the name of a depository or its nominee will be made to the depository or its nominee, as the case may be, as the registered owner of the global security representing the Subordinated Debt Securities. None of Westpac, the trustee for the Subordinated Debt Securities, any paying agent, the registrar or any underwriter or agent for the Subordinated Debt Securities will have any responsibility or liability for any aspect of the records relating to or payments made by the depository or any participants on account of beneficial ownership interests in the global security for the Subordinated Debt Securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

        We expect that the depository for a series of Subordinated Debt Securities or its nominee, upon receipt of any payment of principal or interest in respect of a permanent global security representing the Subordinated 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 Subordinated Debt Securities as shown on the records of the depository 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 registered in "street name". Such payments will be the responsibility of such participants.

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

        For information concerning Conversion or Write-off upon the occurrence of a Non-Viability Trigger Event, see "—Additional Provisions Applicable to Subordinated Debt Securities" below.

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Payment of Additional Amounts

        The subordinated indenture provides that Westpac will pay all amounts that it is required to pay in respect of the Subordinated Debt Securities without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges imposed or levied by or on behalf of Australia or any political subdivision or taxing authority thereof or therein, unless such 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 Subordinated Debt Securities, after such withholding or deduction, will equal the amount that the holder would have received in respect of the Subordinated Debt Securities without such withholding or deduction. However, as described below, the subordinated indenture provides that, under certain circumstances, Westpac will not pay additional amounts.

        The subordinated indenture provides that Westpac will pay no additional amounts in respect of Subordinated Debt Securities for or on account of:

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        In addition, the subordinated indenture provides that additional amounts will also not be payable by Westpac with respect to any payment on any Subordinated Debt Security to any holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that payment would, under the laws of Australia or any political subdivision or taxing authority thereof or therein, be treated as being derived or received for tax purposes by a beneficiary or settler of that fiduciary or member of that partnership or a beneficial owner, in each case, who would not have been entitled to those additional amounts had it been the actual holder of such Subordinated Debt Securities.

        If, as a result of Westpac's consolidation or merger with or into an entity organized under the laws of a country other than Australia or a political subdivision of a country other than Australia or the sale, conveyance or transfer by Westpac of all or substantially all its assets to such an entity, such an entity assumes the obligations of Westpac under the subordinated indenture and the Subordinated Debt Securities, such entity will pay additional amounts on the same basis as described above, except that references to "Australia" (other than in the exception applicable in the event the holder or beneficial owner of the Subordinated Debt Securities is an associate of Westpac for purposes of section 128F(6) of the Australian Tax Act) will be treated as references to both Australia and the country in which such entity is organized or resident (or deemed resident for tax purposes).

        Westpac, and any other person to or through which any payment with respect to the Subordinated Debt Securities may be made, shall be entitled to withhold or deduct from any payment with respect to such Subordinated Debt Securities amounts required to be withheld or deducted under or in connection with FATCA, and holders and beneficial owners of such Subordinated Debt Securities shall not be entitled to receive any gross up or other additional amounts on account of any such withholding or deduction.

(Section 12.8 of the subordinated indenture.)

Redemption of Subordinated Debt Securities

        If the Subordinated Debt Securities of a series provide for redemption at Westpac's election (subject to APRA's prior written approval, which may or not be given), unless otherwise provided in the applicable prospectus supplement or term sheet and except as described below under "—Redemption for Taxation Reasons" and "—Redemption for Regulatory Reasons", Westpac may redeem the

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Subordinated Debt Securities of such series in whole or in part, and such redemption shall not be permitted earlier than the fifth anniversary of the issue date.

        Any redemption of the Subordinated Debt Securities of a series shall be on not less than 30 nor more than 60 days' notice and, in the event of redemption in part, the Subordinated Debt Securities to be redeemed will be selected by the trustee by such method as it shall deem fair and appropriate. In the case of Subordinated Debt Securities in global form, such Subordinated Debt Securities will be selected for redemption in accordance with the procedures of the depository. Notice of such redemption will be mailed to holders of Subordinated Debt Securities of such series to their last addresses as they appear on the register of the Subordinated Debt Securities of such series.

        Westpac may redeem the Subordinated Debt Securities of a series only if Westpac has received the prior written approval of APRA (approval is at the discretion of APRA and may or may not be given) and:

(Sections 1.6, 13.1, 13.3 and 13.4 of the subordinated indenture.)

        The subordinated indenture provides that if an Adverse Tax Event (as defined below) has occurred, Westpac may, subject to conditions set forth below and provided that Westpac has obtained a supporting opinion of legal or tax advisers of recognized standing in Australia (or, if a Relevant Transaction (as defined below) occurs and the home jurisdiction for tax purposes of such other entity is not Australia, legal or tax advisers of recognized standing in such other jurisdiction), redeem all, but not less than all, of any series of Subordinated Debt Securities at a redemption price equal to the Outstanding Principal Amount (as defined below) of the Subordinated Debt Securities to be redeemed plus accrued and unpaid interest to, but excluding, the redemption date.

        An " Adverse Tax Event " shall, with respect to any Subordinated Debt Securities of a series, mean that either:

being in each case by any legislative body, court, government authority or regulatory body (irrespective of the manner in which such amendment, clarification, change or Administrative Action is announced) on or after the issue date of the Subordinated Debt Securities of such series but which Westpac did not expect at the issue date of the Subordinated Debt Securities of such series (provided that, if after the issue date Westpac is merged into or consolidated with another entity or all or substantially all of Westpac's assets are sold or transferred to another entity and such entity assumes the obligations of Westpac under the subordinated indenture and the Subordinated Debt Securities (a " Relevant Transaction "), and the home jurisdiction for tax purposes of such other entity is not Australia (or if such home jurisdiction has already become a jurisdiction other than Australia, is different to the

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jurisdiction which it is immediately prior to the Relevant Transaction), the references herein to "issue date" of the Subordinated Debt Securities of such series shall be deemed to be to the date the Relevant Transaction is completed) and:

        Westpac may redeem the Subordinated Debt Securities of a series upon the occurrence of an Adverse Tax Event only if Westpac has received the prior written approval of APRA (approval is at the discretion of APRA and may or may not be given) and:

(Sections 13.1 and 13.8 of the subordinated indenture.)

        The subordinated indenture provides that if a Regulatory Event (as defined below) has occurred, Westpac may, subject to the conditions set forth below and provided that Westpac has obtained a supporting opinion of advisers of recognized standing in Australia or confirmation from APRA, redeem all, but not less than all, of any series of Subordinated Debt Securities at a redemption price equal to the Outstanding Principal Amount of the Subordinated Debt Securities to be redeemed plus accrued and unpaid interest to, but excluding, the redemption date. (Section 10.8 of the subordinated indenture.)

        A " Regulatory Event " shall, with respect to any Subordinated Debt Securities of a series, mean that either:

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        Westpac may redeem the Subordinated Debt Securities of a series upon the occurrence of a Regulatory Event only if Westpac has received the prior written approval of APRA (approval is at the discretion of APRA and may or may not be given) and:

(Sections 13.1 and 13.8 of the subordinated indenture.)

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, the sole remedies for either the trustee or the holder of any outstanding Subordinated Debt Securities of the relevant series shall be the remedies described below.

        The subordinated indenture defines an event of default in respect of any series of Subordinated Debt Securities as any of the following events or circumstances:

        Upon the occurrence of an event of default for a failure to pay principal or interest as described above, the sole remedies for the trustee or the holder of any Subordinated Debt Securities of the relevant series shall be to bring proceedings:

        In the event of a Winding-Up, the Subordinated Debt Securities of the relevant series will, without any further action on the part of the trustee or any holder thereof, become immediately due and payable by Westpac, unless they have been Converted or Written-off, and the trustee or any such holder may institute proceedings for a Winding-Up or, subject to the limitations described under "—Additional Provisions Applicable to Subordinated Debt Securities—Status and Subordination", prove or claim in such Winding-Up in respect of such Subordinated Debt Securities. However, it is

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unlikely a Winding-Up of Westpac will occur without a Non-Viability Trigger Event having occurred first and the Subordinated Debt Securities being Converted or Written-off. In that event:

        In the event of the occurrence of any event of default, no remedy against Westpac (including, without limitation, any right to sue for a sum of damages which has the same economic effect as an acceleration of Westpac's payment obligations) shall be available to the trustee or any holder of any Subordinated Debt Securities for the recovery of amounts owing in respect of the Subordinated Debt Securities or in respect of any breach by Westpac of any obligation, condition or provision binding on it under the terms of the Subordinated Debt Securities other than as described in this prospectus or the applicable prospectus supplement or term sheet.

        A holder of Subordinated Debt Securities will have no right to accelerate payment or exercise any other remedies (including any right to sue for damages) as a consequence of any default other than as specifically described in this prospectus or in any applicable prospectus supplement or term sheet. In the event of a Winding-Up, the Subordinated Debt Securities of the relevant series will become immediately due and payable unless they have been Converted or Written-off. This will be the only circumstance in which the payment of principal on Subordinated Debt Securities of the relevant series may be accelerated.

        If any Subordinated Debt Security becomes due and payable as a result of an event of default, Westpac shall pay such amount as is equal to the Outstanding Principal Amount (or such other amount specified in or determined in accordance with any applicable prospectus supplement or term sheet) together with all accrued but unpaid interest, if any.

(Section 8.1 of the subordinated indenture.)

        Under the Australian Banking Act, for the purpose of protecting depositors and maintaining the stability of the Australian financial system, APRA has administrative power, among other things, to issue a direction to us regarding the conduct of our business, including prohibiting making payments with respect to our debt obligations (including the Subordinated Debt Securities), and, if we become unable to meet our obligations or suspend payment (and in certain other limited circumstances), to appoint an "ADI statutory manager" to take control of our business.

Other Provisions

        The Trust Indenture Act and Section 9.5 of the subordinated indenture provides that the trustee will, within 90 days after the occurrence of a default in respect of any series of Subordinated 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 Subordinated 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 term "default" for the purpose of this provision means any event which is, or after notice or lapse of time or both would become an event of default as defined in the subordinated indenture, with respect to Subordinated Debt Securities of such series.

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        The subordinated indenture provides that the holders of a majority in aggregate principal amount of the outstanding Subordinated 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 Subordinated Debt Securities of that series. (Section 8.5 of the subordinated indenture.)

        The subordinated indenture provides that the trustee, subject to the provisions of the Trust Indenture Act 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 9.1(g) of the subordinated indenture.)

        The subordinated indenture includes covenants that Westpac will file annually with the trustee a certificate of compliance with all conditions and covenants under the subordinated indenture. (Section 12.7 of the subordinated indenture.)

Modification of the Subordinated Indenture

        The subordinated 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 Subordinated Debt Securities in order to:

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        In addition, no amendment to the terms and conditions of the subordinated indenture or a Subordinated Debt Security that at the time of such amendment qualifies as Tier 2 Capital is permitted without the prior written consent of APRA if such amendment may affect the eligibility of the Subordinated Debt Security as Tier 2 Capital as described in the Prudential Standards.

        The subordinated indenture also contains provisions permitting Westpac and the trustee, with the consent of the holders of not less than a majority of the Outstanding Principal Amount of the Subordinated Debt Securities of the affected series, to execute supplemental indentures adding any provisions to or changing or eliminating any of the provisions of the subordinated indenture or modifying the rights of the holders of Subordinated Debt Securities of that series. No supplemental indenture may, without the consent of the holders of all of the affected Subordinated Debt Securities, among other things:

        Any such consent given by the holder of a Subordinated Debt Security of a series shall be conclusive and binding upon such holder and all future holders of the Subordinated Debt Securities of such series and of any Subordinated Debt Securities of such series issued on registration thereof, the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such consent is made upon the Subordinated Debt Securities of such series.

        In addition, no amendment to the terms and conditions of the subordinated indenture or a Subordinated Debt Security that at the time of such amendment qualifies as Tier 2 Capital is permitted without the prior written consent of APRA if such amendment may affect the eligibility of the Subordinated Debt Security as Tier 2 Capital as described in the Prudential Standards.

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Satisfaction and Discharge of the Subordinated Indenture

        The subordinated indenture shall generally cease to be of any further effect with respect to a series of Subordinated Debt Securities when Westpac has delivered to the trustee for cancellation all Subordinated Debt Securities of that series. (Section 7.1 of the subordinated indenture.)

Record Dates

        Westpac will generally be entitled to set any date as the record date for the purpose of determining the holders of Subordinated Debt Securities entitled to give or take any action under the subordinated indenture in the manner specified in such indenture. If a record date is set, action may only be taken by persons who are holders of Subordinated Debt Securities on the record date. Also, unless otherwise specified in the applicable prospectus supplement or term sheet applicable to a series of Subordinated Debt Securities, to be effective, any action must be taken within 180 days of the record date. (Section 1.4(g) of the subordinated indenture.)

Notice

        Notices to holders of Subordinated 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 Subordinated Debt Security is registered as the owner thereof for all purposes. (Sections 1.6 and 3.8 of the subordinated indenture.)

Governing Law

        The subordinated indenture and the Subordinated Debt Securities will be governed by, and construed in accordance with, the laws of the State of New York, except that the Non-Viability Trigger Event, Write-off, Conversion and subordination provisions contained in Articles IV, V and VI 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 the subordinated indenture.)

        The subordinated 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 Subordinated Debt Security or the subordinated 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 8.12 of the subordinated indenture.)

Consolidation, Merger or Sale of Assets

        The subordinated indenture provides 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:

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        Upon any such consolidation, merger or sale where Westpac is not the surviving entity, 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 subordinated indenture and the Subordinated Debt Securities and all such obligations of Westpac shall terminate.

        Notwithstanding the above, the terms and conditions of the subordinated indenture and Subordinated Debt Securities shall not prevent Westpac from consolidating with or merging into any other person or conveying, transferring or leasing its properties and assets substantially as an entirety to any person, or from permitting any person to consolidate with or merge into Westpac or to convey, transfer or lease its properties and assets substantially as an entirety to Westpac where such consolidation, merger, transfer or lease is:

(Section 10.1 of the subordinated indenture.)

Concerning the Trustee

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

Consent to Service of Process

        In accordance with the provisions of the subordinated indenture, we have designated Westpac Banking Corporation, New York Branch, 575 Fifth Avenue, 39th Floor, New York, New York 10017-2422, Attention: Branch Manager, 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 Subordinated 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 the subordinated indenture.)

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Additional Provisions Applicable to Subordinated Debt Securities

1.     Status of the Subordinated Debt Securities—General

1.1   Acknowledgements

        The subordinated indenture provides that each holder of Subordinated Debt Securities by its purchase or holding of a Subordinated Debt Security is deemed to acknowledge that:

(Section 4.1 of the subordinated indenture.)

1.2   Status and Subordination

        The subordinated indenture provides that:

(Section 4.2 of the subordinated indenture.)

1.3   Solvency condition

        The subordinated indenture provides that, prior to a Winding-Up:

        A certificate as to whether Westpac is Solvent signed by two authorized signatories of Westpac or, if Westpac is in Winding-Up, the liquidator, shall, in the absence of fraud or manifest or proven error, be conclusive evidence of the information contained in such certificate. In the absence of such a certificate, a holder of Subordinated Debt Securities shall be entitled to assume (unless the contrary is proved) that Westpac is, and will after any payment as aforesaid be, Solvent.

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        Until Subordinated Debt Securities have been Converted or Written-off:

        Any amount not paid as a consequence of the provisions described in this Section 1.3: (x) will remain a debt owing to the holder of Subordinated Debt Securities by Westpac until it is paid and shall be payable on the first date on which the provisions described in paragraphs (a) and (b) of this Section 1.3 would allow payment of such amount (whether or not such date is otherwise a date on which interest is payable or other date on which such amount becomes due); and (y) shall not constitute an event of default (see "—Description of the Subordinated Debt Securities—Events of Default" above).

(Section 4.3 of the subordinated indenture.)

1.4   Winding-Up

        The subordinated indenture provides that, in a Winding-Up:

        Unless and until Senior Creditors have been paid in full, neither the trustee nor any holder of Subordinated Debt Securities will be entitled to claim in the Winding-Up in competition with Senior Creditors so as to diminish any payment which, but for that claim, Senior Creditors would have been entitled to receive.

        In a Winding-Up, the trustee and any holder of Subordinated Debt Securities will only be entitled to prove for any sums payable in respect of the Subordinated Debt Securities as a liability which is subject to prior payment in full of Senior Creditors. Holders of Subordinated Debt Securities waive in respect of any Subordinated Debt Security, to the fullest extent permitted by law, any right to prove in a Winding-Up as a creditor ranking for payment in any other manner.

36


        However, it is unlikely a Winding-Up of Westpac will occur without a Non-Viability Trigger Event having occurred first and the Subordinated Debt Securities being Converted or Written-off. In that event:

(Section 4.4 of the subordinated indenture.)

1.5   No Set-Off

        The subordinated indenture provides that neither Westpac nor the trustee or any holder of Subordinated Debt Securities is entitled to set-off any amounts due in respect of Subordinated Debt Securities held by the holder against any amount of any nature owed by Westpac to such holder or by such holder to Westpac.

(Section 4.5 of the subordinated indenture.)

1.6   Clawback

        The subordinated indenture provides that each holder of Subordinated Debt Securities by its purchase or holding of a Subordinated Debt Security is deemed to have irrevocably acknowledged and agreed that it or the trustee will pay or deliver to the liquidator any payment or asset, whether voluntary or in any other circumstances, received by such holder or the trustee from or on account of Westpac (including by way of credit, set-off or otherwise) or from any liquidator (or any provisional or other liquidator, receiver, manager or statutory manager of Westpac) in violation of the provisions described in Section 1.2 or in "—Events of Default" above.

(Section 4.6 of the subordinated indenture.)

1.7   Other Provisions

        The subordinated indenture provides that each holder of Subordinated Debt Securities by its purchase or holding of a Subordinated Debt Security is deemed to have irrevocably acknowledged and agreed:

        No consent of any Senior Creditor shall be required for any amendment of the provisions described in Section 1.2 above in relation to any outstanding Subordinated Debt Securities.

(Section 4.7 of the subordinated indenture.)

37


2.     Non-Viability, Conversion and Write-off

2.1   Non-Viability Trigger Event

        The subordinated indenture provides that:

38


(Section 5.1 of the subordinated indenture.)

2.2   Automatic Conversion or Write-off upon the occurrence of a Non-Viability Trigger Event

        The subordinated indenture provides that if a Non-Viability Trigger Event has occurred and all or some Subordinated Debt Securities are (or a percentage of the Outstanding Principal Amount of each Subordinated Debt Security is) required to be Converted or Written-off in accordance with the provisions described in Section 2.1 above, then:

39


(Section 5.2 of the subordinated indenture.)

2.3   No further rights

        The subordinated indenture provides that if:

then:

(Section 5.3 of the subordinated indenture.)

40


2.4   Consent to receive Ordinary Shares and other acknowledgements

        The subordinated indenture provides that subject to any Write-off required in accordance with the provisions described in Section 2.3 above, each holder of Subordinated Debt Securities by its purchase or holding thereof will be deemed to have irrevocably agreed that:

        (c)

(Section 5.4 of the subordinated indenture.)

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2.5   Issue of ordinary shares of successor company

        The subordinated indenture provides that if Westpac shall cease to be the ultimate parent company of the Group and the successor company is an Approved Successor, the provisions described herein under "—Additional Provisions Applicable to Subordinated Debt Securities" may be amended in accordance with the provisions described in Section 3.14 below.

(Section 5.5 of the subordinated indenture.)

2.6   No conversion at the option of the holders

        Holders of Subordinated Debt Securities do not have a right to request Conversion of their Subordinated Debt Securities at any time.

(Section 5.6 of the subordinated indenture.)

2.7   No rights before Conversion

        Before Conversion, a Subordinated Debt Security confers no rights on a holder of Subordinated Debt Securities:

        except as otherwise disclosed herein or in an applicable prospectus supplement or term sheet.

(Section 5.7 of the subordinated indenture.)

2.8   Trustee's Rights upon Conversion or Write-off

        (a)   By its acquisition of the Subordinated Debt Securities, each holder of the Subordinated Debt Securities, to the extent permitted by law, waives any and all claims against the trustee for, agrees not to initiate a suit against the trustee in respect of, and agrees that the trustee shall not be liable for, any action that the trustee takes, or abstains from taking, in either case in accordance with the Conversion or Write-off of the Subordinated Debt Securities other than for the trustee's gross negligence or willful misconduct.

        (b)   Holders of the Subordinated Debt Securities that acquire such Subordinated Debt Securities in the secondary market shall be deemed to acknowledge, agree to be bound by and consent to the same provisions specified herein to the same extent as the holders of the Subordinated Debt Securities that acquire the Subordinated Debt Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by and consent to the terms of the Subordinated Debt Securities, including in relation to the Conversion and Write-off of the Subordinated Debt Securities.

        (c)   Westpac's obligation to indemnify and reimburse the trustee under the subordinated indenture shall survive Conversion and Write-off of the Subordinated Debt Securities.

        (d)   Unless otherwise required by APRA, the rights, immunities, indemnities and protections of the trustee relating to the Conversion and Write-off of the Subordinated Debt Securities will not be amended, changed or modified without the trustee's written consent and that any such amendment, change or modification will be made in an amendment or supplement to the subordinated indenture.

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        (e)   By its acquisition of the Subordinated Debt Securities, each holder of the Subordinated Debt Securities acknowledges and agrees that, upon Conversion or Write-off of the Subordinated Debt Securities, (a) the trustee shall not be required to take any further directions from such holder of the Subordinated Debt Securities either under the terms of the Subordinated Debt Securities or the subordinated indenture unless secured or indemnified to its satisfaction by such holder of the Subordinated Debt Securities, (b) it may not direct the trustee to take any action whatsoever, including without limitation, any challenge to the Conversion or Write-off of the Subordinated Debt Securities or request to call a meeting or take any other action under the subordinated indenture in connection with the Conversion or Write-off of the Subordinated Debt Securities unless secured or indemnified to its satisfaction by such holder of the Subordinated Debt Securities and (c) neither the subordinated indenture nor the Subordinated Debt Securities shall impose any duties upon the trustee whatsoever with respect to the Conversion or Write-off of the Subordinated Debt Securities. Notwithstanding the foregoing, if, following the Conversion or Write-off of the Subordinated Debt Securities, any Subordinated Debt Securities remain outstanding, then the trustee's duties under the subordinated indenture shall remain applicable with respect to the remaining outstanding Subordinated Debt Securities which have not been so Converted or Written-off.

(Section 5.8 of the subordinated indenture.)

3.     Procedures for Conversion

3.1   Conversion

        On the Non-Viability Trigger Event Date, subject to the provisions described in Section 2.3 above and Section 3.10 below, the following provisions will apply.




Conversion Number for
each Subordinated Debt
Security
 



=
  Outstanding Principal Amount of the Subordinated Debt Security
(translated into Australian Dollars in accordance with paragraph (b)
of the definition of Outstanding Principal Amount where the
calculation date shall be the Non-Viability Trigger Event Date)

P × VWAP

where:

         Outstanding Principal Amount has the meaning given to it in Section 4 below, as adjusted in accordance with Section 3.13 below.

         P means the number specified in any such prospectus supplement or term sheet.

         VWAP means the VWAP during the VWAP Period.

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         Maximum Conversion Number means a number calculated according to the following formula:






Maximum Conversion Number
 




=
  Outstanding Principal Amount of the Subordinated Debt Security
(translated into Australian Dollars in accordance with
paragraph (b) of the definition of Outstanding Principal Amount
where the calculation date shall be the ASX Business Day prior
to the issue date of the Subordinated Debt Securities of a series)

0.20 × Issue Date VWAP

where:

         Outstanding Principal Amount has the meaning given to it in Section 4 below, as adjusted in accordance with Section 3.13 below.

        If any Subordinated Debt Securities are Converted following a Non-Viability Trigger Event, it is likely that the Maximum Conversion Number will apply and limit the number of Ordinary Shares to be issued. In this case, the value of the Ordinary Shares received is likely to be significantly less than the Outstanding Principal Amount of those Subordinated Debt Securities. The Australian dollar may depreciate in value against the U.S. dollar by the time of Conversion. In that case, the Maximum Conversion Number is more likely to apply.

(Section 6.1 of the subordinated indenture.)

3.2   Adjustments to VWAP generally

        For the purposes of calculating VWAP under the provisions described in Section 3.1 above:

44


(Section 6.2 of the subordinated indenture.)

3.3   Adjustments to VWAP for capital reconstruction

(Section 6.3 of the subordinated indenture.)

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3.4   Adjustments to Issue Date VWAP generally

        For the purposes of determining the Issue Date VWAP as described in Section 3.1 above, adjustments will be made as described in Sections 3.2 and 3.3 above during the VWAP Period for the Issue Date VWAP. On and from the issue date, adjustments to the Issue Date VWAP:

(Section 6.4 of the subordinated indenture.)

3.5   Adjustments to Issue Date VWAP for bonus issues

        The subordinated indenture provides that

(Section 6.5 of the subordinated indenture.)

3.6   Adjustments to Issue Date VWAP for capital reconstruction

        The subordinated indenture provides that if at any time after the issue date of the Subordinated Debt Securities of a series there is a change to the number of Ordinary Shares on issue because of a Reclassification (in a manner not involving any cash payment or the giving of another form of consideration to or by holders of Ordinary Shares) into a lesser or greater number, the Issue Date

46


VWAP will be adjusted by multiplying the Issue Date VWAP applicable on the ASX Business Day immediately before the date of any such Reclassification by the following formula:

(Section 6.6 of the subordinated indenture.)

3.7   No adjustment to Issue Date VWAP in certain circumstances

        Notwithstanding the provisions described in Section 3.5 above, no adjustment will be made to the Issue Date VWAP where any such adjustment (expressed in Australian dollars and cents and rounded to the nearest whole cent with A$0.005 being rounded upwards) would be less than one per cent of the Issue Date VWAP then in effect.

(Section 6.7 of the subordinated indenture.)

3.8   Announcement of adjustment to Issue Date VWAP

        Westpac will notify any adjustment to the Issue Date VWAP made as described above to ASX and to the trustee and holders of Subordinated Debt Securities as described above under the caption "—Notice" within 10 ASX Business Days of Westpac determining the adjustment and the adjustment will be final and binding.

(Section 6.8 of the subordinated indenture.)

3.9   Status and listing of Ordinary Shares

(Section 6.9 of the subordinated indenture.)

3.10 Conversion; receipt of Ordinary Shares; where the holder of Subordinated Debt Securities does not wish to receive Ordinary Shares; Holders' Nominee

47


48


49


(Section 6.10 of the subordinated indenture.)

3.11 Conversion or Write-off if amounts not paid

        Conversion or Write-off may occur even if an amount shall not have been paid to a holder of Subordinated Debt Securities due to Westpac's inability to satisfy the solvency condition described in Section 1.3 above.

(Section 6.11 of the subordinated indenture.)

3.12 Conversion or Write-off after Winding-Up commences

        If an order is made by a court, or an effective resolution is passed, for a Winding-Up, and a Non-Viability Trigger Event occurs, then Conversion or Write-off shall occur (subject to the provisions described in Section 2.3 above) in accordance with the provisions described in Sections 2.1 and 2.2 above.

(Section 6.12 of the subordinated indenture.)

3.13 Conversion or Write-off of a percentage of Outstanding Principal Amount

        If in accordance with the provisions described in Section 2.1 above, a percentage of the Outstanding Principal Amount of each Subordinated Debt Security is required to be Converted or Written-off upon the occurrence of a Non-Viability Trigger Event, then the provisions described in Section 3 will apply to the Conversion or Write-off as if references to the Outstanding Principal Amount of each Subordinated Debt Security were references to the relevant percentage of the Outstanding Principal Amount of each Subordinated Debt Security to be Converted or Written-off.

(Section 6.13 of the subordinated indenture.)

3.14 Amendment of terms and conditions relating to Conversion for Approved Successor

50


51


        Any capital injection carried out pursuant to the provisions described in Section 3.14(f)(ii) must:

        The foregoing provisions described in this Section 3.14 will not prevent Westpac from proposing, or limit, any scheme of arrangement or other similar proposal that may be put to holders of Subordinated Debt Securities or Westpac's members.

(Section 6.14 of the subordinated indenture.)

3.15 Power of attorney

        The subordinated indenture provides that by holding a Subordinated Debt Security, each such holder is deemed to irrevocably appoint each of Westpac, its directors or authorized signatories and any of Westpac's liquidators or administrators (each an Attorney) severally to be the attorney of such holder with power in the name and on behalf of such holder to sign all documents and transfers and do any other thing as may in the Attorney's opinion be necessary or desirable to be done in order to give effect to, or for such holder to observe or perform such holder's obligations under, the provisions described in Sections 2 and 3. Such power of attorney is given for valuable consideration and to secure the performance by such holder of such holder's obligations under the provisions described in Sections 2 and 3 and is irrevocable.

(Section 6.15 of the subordinated indenture.)

3.16 Cancellation

        The subordinated indenture provides that all Subordinated Debt Securities so Converted will forthwith be canceled and may not be re-issued or resold.

(Section 6.16 of the subordinated indenture.)

3.17 Calculations

        For the avoidance of doubt, any and all calculations relating to the Conversion or Write-off of the Subordinated Debt Securities and any adjustments thereto shall be performed by, or on behalf of, Westpac and the holders shall direct any questions or concerns regarding such calculations to Westpac or such other persons performing such calculations or adjustments.

(Section 6.17 of the subordinated indenture.)

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4.     Definitions

        In this section "—Additional Provisions Applicable to Subordinated Debt Securities", the following expressions have the following meanings:

         "Additional Tier 1 Capital" has the meaning given to it in the Prudential Standards;

         "Administrative Action " means any judicial decision, official pronouncement or action, published or private ruling, interpretative decision, regulatory procedure or policy, application of a regulatory procedure or policy and any notice or announcement (including any notice or announcement of intent to adopt or make any of those things);

         "Adverse Tax Event" has the meaning set out in "—Redemption of Subordinated Securities—Redemption for Taxation Reasons";

         "Approved Successor" means a company that replaces, or is proposed to replace, Westpac as the ultimate parent company of the Group and that satisfies the following requirements:

         "Assets" means, in respect of Westpac, its total non-consolidated gross assets as shown by the latest published full-year audited or half-year reviewed accounts, as the case may be, of Westpac, but adjusted for events subsequent to the date of such accounts in such manner and to such extent as two authorized signatories of Westpac or, if Westpac is in Winding-Up, the liquidator may determine to be appropriate;

         "ASX" means the Australian Securities Exchange operated by ASX Limited (ABN 98 008 624 691);

         "ASX Business Day" means a business day as defined in the ASX Listing Rules;

         "ASX Listing Rules" means the listing rules of ASX from time to time with any modifications or waivers in their application to Westpac which ASX may grant;

         "Australian Dollars" and "A$" mean the lawful currency of Australia;

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         "CHESS" has the meaning given to it in Section 3.10(a)(ii);

         "Clearing System Holder" means that the Holder is the operator of a clearing system or a depository, or a nominee for a depository, for a clearing system.

         "Common Equity Tier 1 Capital" has the meaning given to it in the Prudential Standards;

         "Conversion" means, upon the occurrence of a Non-Viability Trigger Event, the conversion of all or some Subordinated Debt Securities (or a percentage of the Outstanding Principal Amount of each Subordinated Debt Security) into Ordinary Shares of Westpac in accordance with the terms of the subordinated indenture. "Convert" and "Converted" shall have corresponding meanings;

         "Denomination" has the meaning given in the prospectus supplement;

         "Equal Ranking Instruments" means instruments which satisfy the requirements set out in one of the following paragraphs (a), (b) or (c):

         "FATCA Withholding" means any deduction or withholding made for or on account of FATCA;

         "Foreign Holder" means a holder of Subordinated Debt Securities (a) whose place of residence is outside Australia or (b) who Westpac otherwise believes may not be a resident of Australia;

         "Holders' Nominee" has the meaning given to it in Section 3.10(b)(vii);

         "Interest Rate" means the rate or rates (expressed as a percentage per annum) of interest payable in respect of the Outstanding Principal Amount of the Subordinated Debt Securities specified in a prospectus supplement or a term sheet or calculated or determined in accordance with the provisions specified in a prospectus supplement or a term sheet;

         "Issue Date VWAP " means the VWAP during the period of 20 ASX Business Days on which trading in Ordinary Shares took place immediately preceding but not including the issue date, as adjusted in accordance with Section 3;

54


         "Junior Ranking Capital Instruments" means instruments, present and future, issued by Westpac which:

         "Liabilities" means, in respect of Westpac, its total non-consolidated gross liabilities as shown by its latest published full-year audited or half-year reviewed accounts, as the case may be, but adjusted for events subsequent to the date of such accounts in such manner and to such extent as two authorized signatories of Westpac or, if Westpac is in Winding-Up, the liquidator may determine to be appropriate;

         "Non-Viability Trigger Event" occurs when APRA notifies Westpac in writing that it believes:

         "Ordinary Share" means a fully paid ordinary share in the capital of Westpac;

         "Outstanding Principal Amount" means in respect of any Subordinated Debt Security which is outstanding at any time, the outstanding principal amount of the Subordinated Debt Security, and for such purposes:

         "Perpetual Capital Notes" means the Perpetual Capital Floating Rate Notes issued by Westpac on September 30, 1986 (as may be varied or amended from time to time);

         "Prudential Standards" means the prudential standards and guidelines published by APRA and as applicable to Westpac from time to time;

55


         "Regulatory Event" has the meaning set out in "—Redemption of Subordinated Securities—Redemption for Regulatory Reasons";

         "Related Entity" means an entity over which Westpac or any parent of Westpac exercises control or significant influence, as determined by APRA from time to time;

         "Relevant Securities" means Relevant Tier 1 Securities and Relevant Tier 2 Securities;

         "Relevant Tier 1 Security" means a security forming part of the Tier 1 Capital of Westpac on a "Level 1 basis" or "Level 2 basis" in accordance with the Prudential Standards which, upon the occurrence of a Non-Viability Trigger Event, may be either:

         "Relevant Tier 2 Security" means a security, including the Subordinated Debt Securities, forming part of the Tier 2 Capital of Westpac on a "Level 1 basis" or "Level 2 basis" in accordance with the Prudential Standards which, upon the occurrence of a Non-Viability Trigger Event, may be either:

         "Relevant Transaction" has the meaning set out in "—Redemption of Subordinated Securities—Redemption for Taxation Reasons";

         "Senior Creditors" means all depositors and other creditors (present and future) of Westpac, including all holders of Westpac's debt:

        Senior Creditors include holders of any instruments issued by Westpac prior to January 1, 2013 which constituted Lower Tier 2 Capital as described in the Prudential Standards as in effect prior to January 1, 2013, irrespective of whether or not such instruments are treated as constituting Tier 2 Capital in accordance with any transitional arrangements approved by APRA;

         "Solvent" with respect to Westpac, shall mean (i) it is able to pay its debts as they fall due; and (ii) its Assets exceed its Liabilities;

         "Solvent Reconstruction" means a scheme of amalgamation or reconstruction not involving a bankruptcy or insolvency, where the obligations of Westpac in relation to the outstanding Subordinated Debt Securities are assumed by the successor entity to which all, or substantially all, of the property, assets and undertaking of Westpac are transferred or where an arrangement with similar effect not involving a bankruptcy or insolvency is implemented;

         "Specified Currency" has the meaning given in a prospectus supplement or a term sheet;

         "Tax Legislation" means (a) the Income Tax Assessment Act 1936 of Australia or the Income Tax Assessment Act 1997 of Australia (both as amended from time to time, as the case may be, and a reference to any section of the Income Tax Assessment Act 1936 includes a reference to that section as

56


rewritten in the Income Tax Assessment Act 1997), (b) any other law setting the rate of income tax payable by the Company, and (c) any regulation made under such laws.

         "Tier 1 Capital" has the meaning given to it in the Prudential Standards;

         "Tier 2 Capital" has the meaning given to it in the Prudential Standards;

         "VWAP" means, subject to any adjustments under the provisions described in Sections 3 above, the average of the daily volume weighted average sale prices (such average and each such daily average sale price being expressed in Australian dollars and cents and rounded to the nearest full cent, with A$0.005 being rounded upwards) of Ordinary Shares sold on ASX during the relevant period or on the relevant days but does not include any "crossing" transacted outside the "Open Session State" or any "special crossing" transacted at any time, each as defined in the ASX Market Rules or any overseas trades or trades pursuant to the exercise of options over Ordinary Shares;

         "VWAP Period" means the period of 5 ASX Business Days on which trading in Ordinary Shares took place immediately preceding (but not including) the Non-Viability Trigger Event Date;

         "Winding-Up" means the legal procedure for the liquidation of Westpac commenced when:

         "Write-off" has the meaning given to it in Section 2.3(c). "Written-off" shall have a corresponding meaning.

(Section 1.1 of the subordinated indenture.)

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DESCRIPTION OF ORDINARY SHARES

Share Capital

        As at September 30, 2016, Westpac had 3,183,907,786 Ordinary Shares on issue.

Description of the type and class of securities admitted

        The Ordinary Shares were created under Australian legislation. The Ordinary Shares are currently listed on ASX and the New Zealand Exchange, and American Depository Shares representing Ordinary Shares are currently listed on the New York Stock Exchange. Westpac will use all reasonable endeavors to list the Ordinary Shares issued on Conversion of Subordinated Debt Securities on ASX.

Form and currency of the Ordinary Shares

        The Ordinary Shares are denominated in A$. The Ordinary Shares are in uncertificated, registered form.

Rights attaching to the Ordinary Shares

        Westpac was registered on August 23, 2002 as a public company limited by shares under the Australian Corporations Act. Westpac's constitution was most recently amended at the general meeting held on December 13, 2012. The rights attaching to Westpac's Ordinary Shares are set out in the Australian Corporations Act and its constitution, and include:

        Holders of Ordinary Shares are entitled to receive such dividends on those shares as may be determined by Westpac's Directors from time to time. Dividends that are paid but not claimed may be invested by our Directors for the benefit of Westpac until required to be dealt with in accordance with any law relating to unclaimed monies.

        Our constitution requires that dividends be paid out of our profits. In addition, under the Australian Corporations Act, Westpac must not pay a dividend unless our assets exceed our liabilities immediately before the dividend is declared and the excess is sufficient for payment of the dividend. In addition, the payment must be fair and reasonable to the Westpac's shareholders and must not materially prejudice Westpac's ability to pay its creditors.

        Subject to the Australian Corporations Act, the constitution, the rights of persons (if any) entitled to shares with special rights to dividend and any contrary terms of issue of or applying to any shares, our Directors may determine that a dividend is payable, fix the amount and the time for payment and authorize the payment or crediting by Westpac to, or at the direction of, each shareholder entitled to that dividend.

        If any dividends are returned unclaimed, we are generally obliged, under the Australian Banking Act, to hold those amounts as unclaimed monies for a period of three years. If at the end of that period the monies remain unclaimed by the shareholder concerned, we must submit an annual unclaimed money return to the Australian Securities and Investment Commission by March 31 each year containing the unclaimed money as at December 31 of the previous year. Upon such payment being made, we are discharged from further liability in respect of that amount.

        Westpac's Directors may, before paying any dividend, set aside out of our profits such sums as they think proper as reserves, to be applied, at the discretion of our Directors, for any purpose for which the profits may be properly applied. Westpac's Directors may carry forward so much of the profits remaining as they consider ought not to be distributed as dividends without transferring those profits to a reserve.

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        The following restrictions apply to our ability to declare and/or pay dividends:

        Holders of our fully paid Ordinary Shares have, at general meetings (including special general meetings), one vote on a show of hands and, upon a poll, one vote for each fully paid share held by them.

        Subject to any preferential entitlement of holders of preference shares on issue at the relevant time, holders of our Ordinary Shares are entitled to share equally in any surplus assets if we are wound up.

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TAXATION

United States Taxation

Senior Debt Securities

        The following is a general discussion of the material US federal income tax considerations relating to the purchase, ownership and disposition of the Senior Debt Securities by US Holders (as defined below) who purchase the Senior Debt Securities in an offering of Senior Debt Securities at their issue price (determined as set forth below) and hold the Senior Debt Securities as capital assets, within the meaning of section 1221 of the Code. This discussion does not address all of the tax considerations that may be relevant to US Holders in light of their particular circumstances or to US Holders subject to special rules under US federal income tax laws, such as banks, insurance companies, retirement plans, regulated investment companies, real estate investment trusts, dealers in securities, brokers, tax-exempt entities, certain former citizens or residents of the US, US Holders who hold the Senior Debt Securities as part of a "straddle", "hedging", "conversion" or other integrated transaction, US Holders who mark their securities to market for US federal income tax purposes or US Holders whose functional currency is not the US dollar. In addition, this discussion does not address the effect of any state, local or non-US tax laws or any US federal estate, gift or alternative minimum tax considerations.

        This discussion is based on the Code, the Treasury Regulations promulgated thereunder and administrative and judicial pronouncements, all as in effect on the date hereof, and all of which are subject to change, possibly with retroactive effect. This discussion does not describe the US federal income tax considerations relating to the purchase, ownership or disposition of a "contingent payment debt instrument" (as defined under applicable Treasury Regulations) (such as a Senior Debt Security where the amount of principal and/or interest payable is determined by reference to one or more commodities, derivatives, securities or indices or any currency or currencies other than the currency in which the Senior Debt Security is denominated), a Senior Debt Security with a maturity later than 30 years from its date of issuance, a Senior Debt Security that does not obligate Westpac to repay an amount equal to at least the issue price of the Senior Debt Security, or certain "variable rate debt instruments" (as defined under applicable Treasury Regulations), and a general discussion of any materially different US federal income tax considerations relating to any such particular Senior Debt Security will be included in the applicable prospectus supplement or term sheet.

        For purposes of this discussion, the term "US Holder" means a beneficial owner of a Senior Debt Security that is, for US federal income tax purposes, (i) an individual citizen or resident of the US, (ii) a corporation created or organized in or under the laws of the US or of any state thereof or the District of Columbia, (iii) an estate the income of which is subject to US federal income taxation regardless of its source, or (iv) a trust with respect to which a court within the US is able to exercise primary supervision over its administration and one or more United States persons have the authority to control all of its substantial decisions, or certain electing trusts that were in existence on August 19, 1996 and were treated as domestic trusts on that date.

        If an entity treated as a partnership for US federal income tax purposes invests in a Senior Debt Security, the US federal income tax considerations relating to such investment will generally depend in part upon the status and activities of such entity and its partners. Such an entity should consult its own tax advisor regarding the US federal income tax considerations applicable to it and its partners of the purchase, ownership and disposition of such a Senior Debt Security.

        Prospective purchasers are advised to consult their own tax advisors as to the US federal income and other tax considerations relating to the purchase, ownership and disposition of the Senior Debt Securities in light of their particular circumstances, as well as the effect of any state, local or non-US tax laws.

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        Each US Holder of a Senior Debt Security must include in income payments of "qualified stated interest" (as described below) in respect of such Senior Debt Security in accordance with such US Holder's method of accounting for US federal income tax purposes as ordinary interest income. In general, if the issue price of a Senior Debt Security, determined by the first price at which a substantial amount of the Senior Debt Securities of a series are sold (ignoring sales to bond houses, brokers or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers), is less than the "stated redemption price at maturity" (as described below) of such Senior Debt Security by an amount that is equal to or more than a de minimis amount, a US Holder will be considered to have purchased such Senior Debt Security with original issue discount ("OID"). In general, the de minimis amount is equal to 1 / 4 of 1 percent of the stated redemption price at maturity of a Senior Debt Security multiplied by the number of complete years to maturity (or, in the case of a Senior Debt Security providing for the payment of any amount other than qualified stated interest (as defined below) prior to maturity, multiplied by the weighted average maturity of the Senior Debt Security). If a US Holder acquires a Senior Debt Security with OID, then regardless of such US Holder's method of accounting for US federal income tax purposes, such US Holder generally will be required to accrue its pro rata share of OID on such Senior Debt Security on a constant-yield basis and include such accruals in gross income, whether or not such US Holder will have received any cash payment on such Senior Debt Security. Any amount not treated as OID because it is de minimis generally must be included in income (generally as gain from the sale of Senior Debt Securities) as principal payments are received in the proportion that each such payment bears to the original principal amount of the Senior Debt Security. Special rules apply to Senior Debt Securities with a fixed maturity of one year or less. See below under "—Short-Term Senior Debt Securities".

        "Stated redemption price at maturity" generally means the sum of all payments to be made on a Senior Debt Security other than payments of "qualified stated interest". "Qualified stated interest" generally means stated interest that is unconditionally payable at least annually at a single fixed rate, or in the case of a variable rate debt instrument (as defined below), at a single qualified floating rate or single objective rate (as such terms are defined below). If a Senior Debt Security is a variable rate debt instrument but interest is payable at a rate other than a single qualified floating rate or a single objective rate, the special rules that apply to such Senior Debt Security will be described in the applicable prospectus supplement or term sheet.

        In the case of a Senior Debt Security that is a variable rate debt instrument, the amount of qualified stated interest and the amount of OID, if any, that accrues during an accrual period is generally determined by assuming that the variable rate is a fixed rate equal to (i) in the case of a qualified floating rate or qualified inverse floating rate (each as defined below), the value, as of the issue date, of the qualified floating rate or qualified inverse floating rate or (ii) in the case of an objective rate (as defined below, and other than a qualified inverse floating rate), a fixed rate that reflects the yield that is reasonably expected for the debt instrument, and the qualified stated interest (or, if there is no qualified stated interest, OID) allocable to an accrual period is increased (or decreased) if the interest actually paid during an accrual period exceeds (or is less than) the interest assumed to be paid during the accrual period pursuant to clause (i) or (ii), as applicable. If applicable to any Senior Debt Security, the special rules that apply to a variable rate debt instrument that provides for stated interest at a fixed rate under certain circumstances will be described in the applicable prospectus supplement or term sheet.

        A "variable rate debt instrument" is a debt instrument that (i) has an issue price that does not exceed the total noncontingent principal payments by more than an amount equal to the lesser of (a) 0.015 multiplied by the product of such total noncontingent principal payments and the number of complete years to maturity of the instrument (or, in the case of a Senior Debt Security providing for the payment of any amount other than qualified stated interest prior to maturity, multiplied by the

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weighted average maturity of the Senior Debt Security) or (b) 15 percent of the total noncontingent principal payments, (ii) provides for stated interest (compounded or paid at least annually) at the current value of (A) one or more qualified floating rates, (B) a single fixed rate and one or more qualified floating rates, (C) a single objective rate or (D) a single fixed rate and a single objective rate that is a qualified inverse floating rate, and (iii) does not provide for any principal payments that are contingent. The current value of a rate is the value of the rate on any day that is no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day.

        A "qualified floating rate" is generally a floating rate under which variations in the rate can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in the currency in which a debt instrument is denominated. A multiple of a qualified floating rate is not a qualified floating rate unless the relevant multiplier is (i) fixed at a number that is greater than 0.65 but not more than 1.35 or (ii) fixed at a number that is greater than 0.65 but not more than 1.35, increased or decreased by a fixed rate. A variable rate is not considered a qualified floating rate if the variable rate is subject to a cap, floor, governor ( i.e. , a restriction on the amount of increase or decrease in the stated interest rate) or similar restriction that is reasonably expected as of the issue date to cause the yield on the Senior Debt Security to be significantly more or less than the expected yield determined without the restriction (other than a cap, floor, governor or similar restriction that is fixed throughout the term of the Senior Debt Security).

        An "objective rate" is a rate (other than a qualified floating rate) that is determined using a single fixed formula and that is based on objective financial or economic information. However, an objective rate does not include a rate based on information that is within the control of the issuer (or certain related parties of the issuer) or that is unique to the circumstances of the issuer (or certain related parties of the issuer), such as dividends, profits or the value of the issuer's stock. A "qualified inverse floating rate" is an objective rate (i) that is equal to a fixed rate minus a qualified floating rate and (ii) the variations in which can reasonably be expected to inversely reflect contemporaneous variations in the qualified floating rate (disregarding any caps, floors, governors or similar restrictions that would not, as described above, cause a rate to fail to be a qualified floating rate). Notwithstanding the first sentence of this paragraph, a rate is not an objective rate if it is reasonably expected that the average value of the rate during the first half of the Senior Debt Security's term will be either significantly less than or significantly greater than the average value of the rate during the final half of the Senior Debt Security's term. The US Internal Revenue Service ("IRS") may designate rates other than those specified above that will be treated as objective rates. As of the date of this prospectus, no other rates have been designated.

        If interest on a Senior Debt Security is stated at a fixed rate for an initial period of one year or less followed by a variable rate that is either a qualified floating rate or an objective rate for a subsequent period, and the value of the variable rate on the issue date is intended to approximate the fixed rate, the fixed rate and the variable rate together constitute a single qualified floating rate or objective rate, as the case may be. A fixed rate and a variable rate will be conclusively presumed to meet the requirements of the preceding sentence if the value of the variable rate on the issue date does not differ from the value of the fixed rate by more than 0.25 percentage points (25 basis points).

        If a floating rate Senior Debt Security does not qualify as a variable rate debt instrument or otherwise provides for contingent payments, or if a fixed rate Senior Debt Security provides for contingent payments, such Senior Debt Security may constitute a "contingent payment debt instrument". Interest payable on a contingent payment debt instrument is not treated as qualified stated interest. If applicable to any Senior Debt Security, the special rules applicable to contingent payment debt instruments will be described in the applicable prospectus supplement or term sheet.

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        In general, the following rules apply if (i) a Senior Debt Security provides for one or more alternative payment schedules applicable upon the occurrence of a contingency or contingencies and the timing and amounts of the payments that comprise each payment schedule are known as of the issue date and (ii) either a single payment schedule is significantly more likely than not to occur or the Senior Debt Security provides us or the holder with an unconditional option or options exercisable on one or more dates during the term of the Senior Debt Security. If based on all the facts and circumstances as of the issue date a single payment schedule for a Senior Debt Security, including the stated payment schedule, is significantly more likely than not to occur, then, in general, the yield and maturity of the Senior Debt Security are computed based on this payment schedule. If we have or the holder has an unconditional option or options that, if exercised, would require payments to be made on the Senior Debt Security under an alternative payment schedule or schedules, then (i) in the case of an option or options exercisable by us, we will be deemed to exercise or not exercise an option or combination of options in the manner that minimizes the yield on the Senior Debt Security and (ii) in the case of an option or options exercisable by a holder, the holder will be deemed to exercise or not exercise an option or combination of options in the manner that maximizes the yield on the Senior Debt Security. Senior Debt Securities subject to the above rules will not be treated as contingent payment debt instruments as a result of the contingencies described above. If a contingency (including the exercise of an option) actually occurs or does not occur contrary to an assumption made according to the above rules (a "Change in Circumstances"), then, except to the extent that a portion of the Senior Debt Security is repaid as a result of a Change in Circumstances and solely for purposes of the accrual of OID, the Senior Debt Security is treated as retired and then reissued on the date of the Change in Circumstances for an amount equal to the Senior Debt Security's adjusted issue price on that date.

        A US Holder may elect to treat all interest on any Senior Debt Security as OID and calculate the amount includible in gross income under the constant yield method. For purposes of this election, interest includes stated interest, acquisition discount, OID, de minimis OID, market discount, de minimis market discount, and unstated interest, as adjusted by any amortizable bond premium or acquisition premium. The election must be made for the taxable year in which a US Holder acquires a Senior Debt Security, and may not be revoked without the consent of the IRS.

        If the amount paid by a US Holder for a Senior Debt Security exceeds the stated redemption price at maturity of such Senior Debt Security, such US Holder generally will be considered to have purchased such Senior Debt Security at a premium equal in amount to such excess. In this event, such US Holder may elect to amortize such premium, based generally on a constant-yield basis, as an offset to interest income over the remaining term of such Senior Debt Security. In the case of a Senior Debt Security that may be redeemed prior to maturity, the premium amortization and redemption date are calculated assuming that we and the US Holder will exercise or not exercise redemption rights in a manner that maximizes the US Holder's yield. It is unclear how premium amortization is calculated when the redemption date or the amount of any redemption premium is uncertain. The election to amortize bond premium, once made, will apply to all debt obligations held or subsequently acquired by the electing US Holder on or after the first day of the first taxable year to which the election applies, and may not be revoked without the consent of the IRS.

        Senior Debt Securities that have a fixed maturity of one year or less ("Short-Term Senior Debt Securities") will be treated as issued with OID. In general, an individual or other US Holder that uses the cash method of accounting is not required to accrue such OID unless such US Holder elects to do so. If such an election is not made, any gain recognized by such US Holder on the sale, exchange,

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redemption or other disposition of a Short-Term Senior Debt Security will be ordinary income to the extent of the OID accrued on a straight-line basis, or upon election under the constant yield method (based on daily compounding), through the date of sale, exchange, redemption or other disposition, and a portion of the deduction otherwise allowable to such US Holder for interest on borrowings allocable to the Short-Term Senior Debt Security will be deferred until a corresponding amount of income on such Short-Term Senior Debt Security is realized. US Holders who report income for US federal income tax purposes under the accrual method of accounting and certain other US Holders are required to accrue OID related to a Short-Term Senior Debt Security as ordinary income on a straight-line basis unless an election is made to accrue the OID under a constant yield method (based on daily compounding).

        In general, a US Holder of a Senior Debt Security will have a tax basis in such Senior Debt Security equal to the cost of such Senior Debt Security to such US Holder, increased by any amount includible in income by such US Holder as OID and reduced by any amortized premium and any payments received with respect to the Senior Debt Security other than payments of qualified stated interest. Upon a sale, exchange, redemption or other disposition of a Senior Debt Security, a US Holder will generally recognize gain or loss equal to the difference between the amount realized on the sale, exchange, redemption or other disposition (less any amount that is attributable to accrued but unpaid qualified stated interest, which will constitute ordinary interest income if not previously included in income) and such US Holder's adjusted tax basis in such Senior Debt Security. Subject to the rules described below under "—Foreign Currency Senior Debt Securities", such gain or loss generally will be capital gain or loss and will be long-term capital gain or loss if such US Holder has held such Senior Debt Security for more than one year at the time of such sale, exchange, redemption or other disposition. Certain non-corporate US Holders are entitled to preferential treatment for net long-term capital gains. The ability of a US Holder to offset capital losses against ordinary income is limited. Such gain or loss generally will be from sources within the United States.

        The following discussion generally describes special rules that apply, in addition to the rules described above, to Senior Debt Securities that are denominated in, or provide for payments determined by reference to, non-US currency ("Foreign Currency Senior Debt Securities"). The amount of qualified stated interest paid with respect to a Foreign Currency Senior Debt Security that is includible in income by a US Holder that uses the cash method of accounting for US federal income tax purposes is the US dollar value of the amount paid, as determined on the date of actual or constructive receipt by such US Holder, using the spot rate of exchange on such date. In the case of qualified stated interest on a Foreign Currency Senior Debt Security held by a US Holder that uses the accrual method of accounting, and in the case of OID (other than OID on a Short-Term Senior Debt Security that is not required to be accrued) for every US Holder, such US Holder is required to include the US dollar value of the amount of such interest income or OID (which is determined in the non-US currency) that accrued during the accrual period. The US dollar value of such accrued interest income or OID generally is determined by translating such income at the average rate of exchange for the accrual period (or, with respect to an accrual period that spans two taxable years, at the average rate of exchange for the partial period within the taxable year). Alternatively, such US Holder may elect to translate such income at the spot rate of exchange on the last day of the accrual period (or, with respect to an accrual period that spans two taxable years, at the spot rate of exchange in effect on the last day of the taxable year). If the last day of the accrual period is within five business days of the date of receipt of the accrued interest, a US Holder that has made such election may translate accrued interest using the spot rate of exchange in effect on the date of receipt. The above election will apply to all debt obligations held by such US Holder and may not be changed without the consent of

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the IRS. A US Holder will recognize, as ordinary income or loss, foreign currency gain or loss with respect to such accrued interest income or OID on the date the interest or OID is actually or constructively received, reflecting fluctuations in currency exchange rates between the spot rate of exchange used to determine the accrued interest income or OID for the relevant accrual period and the spot rate of exchange on the date such interest or OID is actually or constructively received.

        A US Holder will calculate the amortization of bond premium for a Foreign Currency Senior Debt Security in the applicable non-US currency. Amortization deductions attributable to a period will reduce interest payments in respect of that period, and therefore are translated into US dollars at the spot rate of exchange used for those interest payments. Foreign currency gain or loss will be realized with respect to amortized premium on a Foreign Currency Senior Debt Security based on the difference between the spot rate of exchange at which the amortization deductions were translated into US dollars and the spot rate of exchange on the date such US Holder acquired the Foreign Currency Senior Debt Security.

        The amount realized with respect to a sale, exchange, redemption or other disposition of a Foreign Currency Senior Debt Security generally will be the US dollar value of the payment received, determined on the date of disposition of such Foreign Currency Senior Debt Security (using the spot rate of exchange on such date). However, with respect to Foreign Currency Senior Debt Securities that are treated as traded on an established securities market, such amount realized will be determined using the spot rate of exchange on the settlement date in the case of (i) a US Holder that is a cash method taxpayer or (ii) a US Holder that is an accrual method taxpayer that elects such treatment. This election may not be changed without the consent of the IRS. Gain or loss that is recognized generally will be ordinary income or loss to the extent it is attributable to fluctuations in currency exchange rates between the date of purchase and the date of sale, exchange, redemption or other disposition. Such foreign currency gain or loss, together with any foreign currency gain or loss realized on such disposition in respect of accrued interest or OID, will be recognized only to the extent of the total gain or loss realized by such US Holder on the sale, exchange, redemption or other disposition of the Foreign Currency Senior Debt Security. Any gain or loss realized by a US Holder not treated as foreign currency gain or loss generally will be capital gain or loss (subject to the discussion above regarding Short-Term Senior Debt Securities).

        A US Holder that determines its amount realized in connection with the sale, exchange, redemption or other disposition of a Foreign Currency Senior Debt Security by reference to the spot rate of exchange on the date of such sale, exchange, redemption or other disposition (rather than on the settlement date) may recognize additional foreign currency gain or loss upon receipt of non-US currency from such sale, exchange, redemption or other disposition.

        A US Holder will recognize an amount of foreign currency gain or loss on a sale or other disposition of any non-US currency equal to the difference between (i) the amount of US dollars, or the fair market value in US dollars of any other property, received in such sale or other disposition and (ii) the tax basis of such non-US currency. A US Holder generally will have a tax basis in non-US currency received from a sale, exchange, redemption or other disposition of a Foreign Currency Senior Debt Security equal to the US dollar value of such non-US currency on the date of receipt.

        A Senior Debt Security that provides for payments in more than one currency generally will be treated as a "contingent payment debt instrument", and the special rules applicable to such instruments will be described in the applicable prospectus supplement or term sheet.

        The Treasury Regulations relating to OID contain special aggregation rules stating in general that, subject to certain exceptions, debt instruments issued in the same transaction or related transactions to a single purchaser may be treated as a single debt instrument with a single issue price, maturity date,

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yield to maturity and stated redemption price at maturity for purposes of the OID rules. Under certain circumstances, these provisions could apply to a US Holder that purchases Senior Debt Securities from more than one series of Senior Debt Securities.

        In addition to regular US federal income tax, certain US Holders that are individuals, estates or trusts are subject to a 3.8% tax on all or a portion of their "net investment income", which may include all or a portion of their interest income (including accrued OID) and net gain from the sale, exchange, redemption or other disposition of a Senior Debt Security.

        Backup withholding and information reporting requirements generally apply to interest (including OID) and principal payments made to, and the proceeds of sales by, certain non-corporate US Holders. A US Holder not otherwise exempt from backup withholding generally can avoid backup withholding by providing a properly executed IRS Form W-9. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules generally will be allowed as a refund or a credit against a US Holder's US federal income tax liability, provided the required information is timely furnished by such US Holder to the IRS.

        A US Holder that participates in any "reportable transaction" (as defined in the Treasury Regulations) must attach to its US federal income tax return a disclosure statement on IRS Form 8886. Each US Holder should consult its own tax advisor regarding the possible obligation to file IRS Form 8886 reporting foreign currency loss arising from the Senior Debt Securities or any amounts received with respect to the Senior Debt Securities.

        Individual US Holders (and certain US entities specified in US Treasury Department guidance) who, during any taxable year, hold any interest in any "specified foreign financial asset" generally will be required to file with their US federal income tax returns certain information on IRS Form 8938 if the aggregate value of all such assets exceeds certain specified amounts. "Specified foreign financial asset" generally includes any financial account maintained with a non-US financial institution and may also include the Senior Debt Securities if they are not held in an account maintained with a financial institution. Substantial penalties may be imposed, and the period of limitations on assessment and collection of US federal income taxes may be extended, in the event of a failure to comply. Each US Holder should consult its own tax advisor regarding the possible application of this filing requirement.

Subordinated Debt Securities

        The following is a general discussion of the material US federal income tax considerations relating to the purchase, ownership and disposition of the Subordinated Debt Securities by Subordinated US Holders (as defined below) who purchase the Subordinated Debt Securities in an offering of Subordinated Debt Securities at their issue price (generally the first price at which a substantial amount of the Subordinated Debt Securities of a series are sold (ignoring sales to bond houses, brokers or similar persons or organizations acting in the capacity of underwriters, placement agents or wholesalers)) and hold the Subordinated Debt Securities as capital assets, within the meaning of section 1221 of the Code. This discussion does not address all of the tax considerations that may be relevant to Subordinated US Holders in light of their particular circumstances or to Subordinated US Holders subject to special rules under US federal income tax laws, such as banks, insurance companies,

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retirement plans, regulated investment companies, real estate investment trusts, dealers in securities, brokers, tax-exempt entities, Subordinated US Holders that own (or are deemed to own) 10% or more (by voting power) of our stock, certain former citizens or residents of the US, Subordinated US Holders who hold the Subordinated Debt Securities as part of a "straddle", "hedging", "conversion" or other integrated transaction, Subordinated US Holders who mark their securities to market for US federal income tax purposes or Subordinated US Holders whose functional currency is not the US dollar. In addition, this discussion does not address the effect of any state, local or non-US tax laws or any US federal estate, gift or alternative minimum tax considerations.

        This discussion is based on the Code, the Treasury Regulations promulgated thereunder and administrative and judicial pronouncements and the tax treaty between the United States and Australia, as amended (the "Tax Treaty"), all as in effect on the date hereof, and all of which are subject to change, possibly with retroactive effect. This discussion does not describe the US federal income tax considerations relating to the purchase, ownership or disposition of a Subordinated Debt Security that is issued with an issue price that exceeds such Subordinated Debt Security's principal amount or a Subordinated Debt Security where the amount of principal and/or interest payable is determined by reference to one or more commodities, derivatives, securities or indices or any currency or currencies other than the currency in which the Subordinated Debt Security is denominated, and a general discussion of any materially different US federal income tax considerations relating to any such particular Subordinated Debt Security will be included in the applicable prospectus supplement or term sheet.

        For purposes of this discussion, the term "Subordinated US Holder" means a beneficial owner of a Subordinated Debt Security that is, for US federal income tax purposes, (i) an individual citizen or resident of the US, (ii) a corporation created or organized in or under the laws of the US or of any state thereof or the District of Columbia, (iii) an estate the income of which is subject to US federal income taxation regardless of its source, or (iv) a trust with respect to which a court within the US is able to exercise primary supervision over its administration and one or more United States persons have the authority to control all of its substantial decisions, or certain electing trusts that were in existence on August 19, 1996 and were treated as domestic trusts on that date.

        If an entity treated as a partnership for US federal income tax purposes invests in a Subordinated Debt Security, the US federal income tax considerations relating to such investment will generally depend in part upon the status and activities of such entity and its partners. Such an entity should consult its own tax advisor regarding the US federal income tax considerations applicable to it and its partners of the purchase, ownership and disposition of such a Subordinated Debt Security.

        Except as described below under "—Passive Foreign Investment Company Considerations", this discussion assumes that we are not and will not be a passive foreign investment company for US federal income tax purposes.

        Prospective purchasers are advised to consult their own tax advisors as to the US federal income and other tax considerations relating to the purchase, ownership and disposition of the Subordinated Debt Securities in light of their particular circumstances, as well as the effect of any state, local or non-US tax laws.

        The determination of whether a security should be classified as indebtedness or equity for US federal income tax purposes requires a judgment based on all the relevant facts and circumstance. There is no statutory, judicial or administrative authority that directly addresses the US federal income tax treatment of securities similar to the Subordinated Debt Securities. It is therefore unclear whether the Subordinated Debt Securities should be treated as indebtedness or equity for US federal income tax purposes. Nonetheless, although not free from doubt, based upon an analysis of the relevant facts

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and circumstances, under applicable law as of the date hereof, it is more likely than not that the Subordinated Debt Securities will be treated as equity for US federal income tax purposes. This classification will be binding on a Subordinated US Holder, unless the Subordinated US Holder expressly discloses that it is adopting a contrary position on its income tax return. However, this treatment is not binding on the IRS and it is possible that a Subordinated Debt Security could be treated as indebtedness for US federal income tax purposes. Due to the lack of authority regarding the classification of the Subordinated Debt Securities for US federal income tax purposes, each Subordinated US Holder should consult its own tax advisor regarding the appropriate classification of the Subordinated Debt Securities. Except as described below under "—Alternative Classification of the Subordinated Debt Securities", the remainder of this discussion assumes the Subordinated Debt Securities will be treated as equity for US federal income tax purposes.

        Payments of interest on the Subordinated Debt Securities will be treated as distributions paid with respect to our stock. A Subordinated US Holder that receives a distribution of cash with respect to a Subordinated Debt Security generally will be required to include the amount of such distribution in gross income as a dividend (without reduction for any non-US tax withheld from such distribution) to the extent of our current or accumulated earnings and profits (as determined for US federal income tax purposes). To the extent the amount of such distribution exceeds such current and accumulated earnings and profits, it generally will be treated first as a non-taxable return of capital to the extent of such Subordinated US Holder's adjusted tax basis in such Subordinated Debt Security and then as gain (which will be treated in the manner described below under "—Sale, Exchange, Redemption, Write-off or Other Disposition of the Subordinated Debt Securities"). We have not maintained and do not plan to maintain calculations of earnings and profits for US federal income tax purposes. As a result, a Subordinated US Holder may need to include the entire amount of any such distribution in income as a dividend.

        The amount of any distribution on a Subordinated Debt Security made in non-US currency is the US dollar value of the distribution translated at the spot rate of exchange on the date such distribution is received by or for the account of the Subordinated US Holder. Such Subordinated US Holder generally will have a basis in such non-US currency equal to the US dollar value of such non-US currency on the date of such receipt. Any gain or loss on a conversion or other disposition of such non-US currency by such Subordinated US Holder generally will be treated as ordinary income or loss from sources within the United States.

        A distribution on a Subordinated Debt Security that is treated as a dividend generally will constitute income from sources outside the United States and generally will be categorized for US foreign tax credit purposes as "passive category income" or, in the case of some Subordinated US Holders, as "general category income". Such distribution will not be eligible for the "dividends received" deduction generally allowed to corporate shareholders with respect to dividends received from US corporations. A Subordinated US Holder may be eligible to elect to claim a US foreign tax credit against its US federal income tax liability, subject to applicable limitations and holding period requirements, for any non-US tax withheld from any such distribution. A Subordinated US Holder that does not elect to claim a US foreign tax credit for non-US income tax withheld may instead claim a deduction for such withheld tax, but only for a taxable year in which the Subordinated US Holder elects to do so with respect to all non-US income taxes paid or accrued by such Subordinated US Holder in such taxable year. The rules relating to US foreign tax credits are very complex, and each Subordinated US Holder should consult its own tax advisor regarding the application of such rules.

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        Dividends received by an individual (or certain other non-corporate US holders) from a "qualified foreign corporation" generally qualify for preferential rates of tax so long as (i) the distributing corporation is not a passive foreign investment company during the taxable year in which the dividend is paid or the preceding taxable year and (ii) certain holding period and other requirements are met. A non-US corporation generally will be considered to be a qualified foreign corporation if it is eligible for the benefits of a comprehensive income tax treaty with the United States that the US Treasury Department determines is satisfactory for purposes of this provision and that includes an exchange of information program. The Tax Treaty, as currently in effect, meets these requirements. We believe that we are currently eligible for the benefits of the Tax Treaty, but no assurance can be given that we will be so eligible at all times. In addition, as described below under "—Passive Foreign Investment Company Considerations", we believe that we were not in our taxable year ending in 2015, and we do not currently expect to become, a passive foreign investment company, but no assurance can be given that we will not be a passive foreign investment company in any year. The IRS may disagree with our conclusions regarding any of the foregoing. Moreover, it is not clear whether the existence of certain creditor remedies provided for under the terms of the Subordinated Debt Securities may adversely affect the holding period requirement for claiming the preferential rates of tax noted above. Therefore, no assurance can be given that a distribution on a Subordinated Debt Security held by a Subordinated US Holder will qualify for such preferential rates. If such preferential rates are applicable, special rules apply for purposes of determining the recipient's investment income (which may limit deductions for investment interest) and foreign income (which may affect the amount of US foreign tax credit). In addition, if a distribution received by an individual to which the preferential rates of tax noted above apply is an "extraordinary dividend" within the meaning of section 1059 of the Code, any loss recognized by such individual on a subsequent disposition of a Subordinated Debt Security will be treated as long-term capital loss to the extent of such "extraordinary dividend", irrespective of such Subordinated US Holder's holding period for such Subordinated Debt Security. Each Subordinated US Holder that is a non-corporate taxpayer should consult its own tax advisor regarding the possible applicability of these preferential rates of tax and the related restrictions and special rules.

        A Subordinated Debt Security will be considered to be issued with a "redemption premium" if the excess of the principal amount of the Subordinated Debt Security over its issue price is equal to or more than a de minimis amount ( 1 / 4 of 1 percent of the Subordinated Debt Security's principal amount multiplied by the number of complete years to its maturity). Any such redemption premium will be included in income as a dividend, to the extent of our current or accumulated earnings and profits, under principles similar to the principles applicable to original issue discount described above under "—Senior Debt Securities—Interest and Original Issue Discount". Under certain circumstances, our right to redeem a Subordinated Debt Security could give rise to redemption premium for this purpose. If we believe that such a right exists, we will so advise in the applicable prospectus supplement or term sheet.

        A Subordinated US Holder generally will recognize gain or loss for US federal income tax purposes upon the sale, exchange or other disposition of a Subordinated Debt Security (other than conversion into Ordinary Shares as described below under "—Conversion of the Subordinated Debt Securities into Ordinary Shares") in an amount equal to the difference, if any, between the amount realized on the sale, exchange or other disposition and such Subordinated US Holder's adjusted tax basis in such Subordinated Debt Security, except to the extent that any cash received in a redemption that is treated as a sale or exchange is attributable to any accrued but unpaid interest on the Subordinated Debt Security, which might be treated as a distribution paid with respect to our stock, with the consequences described above under "—Interest Payments on the Subordinated Debt

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Securities". Any gain or loss generally will be capital gain or loss and will be long-term capital gain or loss if such Subordinated US Holder has held such Subordinated Debt Security for more than one year at the time of such sale, exchange or other disposition. Net long-term capital gain of certain non-corporate Subordinated US Holders generally is subject to preferential rates of tax. The deductibility of capital losses is subject to limitations. Such gain or loss generally will be from sources within the United States.

        A Write-off in full of a Subordinated Debt Security generally will be treated as a sale, exchange or other disposition of such Subordinated Debt Security. It is unclear how a partial Write-off of a Subordinated Debt Security should be treated for US federal income tax purposes, and each Subordinated US Holder should consult its own tax advisor regarding the US federal income tax consequences of a partial Write-off.

        Depending on the circumstances, a redemption of a Subordinated Debt Security may either be (i) a sale or exchange or (ii) a distribution paid with respect to our stock. In general, a redemption of a Subordinated Debt Security will be treated as a sale or exchange if it:

In determining whether any of these tests has been met, a Subordinated US Holder must take into account not only Subordinated Debt Securities and other of our equity interests that the Subordinated US Holder actually owns, but also Subordinated Debt Securities and other of our equity interests that the Subordinated US Holder constructively owns within the meaning of section 318 of the Code. If a redemption does not meet at least one of these tests, it generally will be treated as a distribution paid with respect to our stock, with the consequences described above under "—Interest Payments on the Subordinated Debt Securities". Each Subordinated US Holder should consult its own tax advisor regarding the US federal income tax consequences of a redemption of a Subordinated Debt Security, including the treatment of adjusted tax basis where the redemption is treated as a distribution.

        A Subordinated US Holder that receives non-US currency from the sale, exchange or other disposition of a Subordinated Debt Security generally will realize an amount equal to the US dollar value of such non-US currency translated at the spot rate of exchange on the settlement date of such sale, exchange or other disposition if (i) such Subordinated US Holder is a cash basis or electing accrual basis taxpayer and the Subordinated Debt Security is treated as being "traded on an established securities market" or (ii) such settlement date is also the date of such sale, exchange or other disposition. Such Subordinated US Holder generally will have a basis in such non-US currency equal to the US dollar value of such non-US currency on the settlement date. Any gain or loss on a conversion or other disposition of such non-US currency by such Subordinated US Holder generally will be treated as ordinary income or loss from sources within the United States. Each Subordinated US Holder should consult its own tax advisor regarding the US federal income tax consequences of receiving non-US currency from the sale, exchange or other disposition of a Subordinated Debt Security in cases not described in the first sentence of this paragraph.

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        In general, a corporation organized outside the United States will be treated as a passive foreign investment company ("PFIC") in any taxable year in which either (i) at least 75% of its gross income is "passive income" or (ii) on average at least 50% of the value of its assets is attributable to assets that produce passive income or are held for the production of passive income. We believe that we were not in our taxable year ending in 2015, and we do not currently expect to become, a PFIC for US federal income tax purposes. However, because this determination is made annually at the end of each taxable year and is dependent upon a number of factors, some of which are beyond our control, such as the value of our assets (including goodwill) and the amount and type of our income, there can be no assurance that we will not be a PFIC in any taxable year or that the IRS will agree with our conclusion regarding its PFIC status in any taxable year.

        If we are a PFIC in any taxable year, Subordinated US Holders could suffer adverse consequences, including the possible characterization of any gain from the sale, exchange or other disposition of a Subordinated Debt Security as ordinary income (rather than capital gain) and an interest charge on a portion of the resulting tax liability. Each Subordinated US Holder should consult its own tax advisor regarding the US federal income tax consequences if we are a PFIC during its holding period for the Subordinated Debt Securities.

        If a Subordinated Debt Security is Converted and a Subordinated US Holder receives solely Ordinary Shares, such Subordinated US Holder generally will not recognize any income, gain or loss upon such Conversion. A Subordinated US Holder's tax basis in Ordinary Shares received upon Conversion of a Subordinated Debt Security generally will be the same as such Subordinated US Holder's adjusted tax basis in such Subordinated Debt Security at the time of Conversion, and the holding period for Ordinary Shares so received generally will include the holding period of the Subordinated Debt Security Converted.

        Under certain circumstances, in connection with a Conversion, we may issue Ordinary Shares to the Holders' Nominee and those Ordinary Shares would be sold by the Holders' Nominee for the benefit of the applicable Subordinated US Holder. Such a sale should be treated for US federal income tax purposes as a sale of such Ordinary Shares by such Subordinated US Holder. See "—Sale, Exchange, Redemption, Write-off or Other Disposition of the Subordinated Debt Securities."

        The material US federal income tax considerations relating to the ownership and disposition of Ordinary Shares received in a Conversion would generally be the same as the material US federal income tax considerations relating to the ownership and disposition of Subordinated Debt Securities described herein.

        As noted above, it is possible that the Subordinated Debt Securities could be treated as indebtedness for US federal income tax purposes. If the Subordinated Debt Securities were so treated, the material US federal income tax considerations for Subordinated US Holders would generally be those described above under "—Senior Debt Securities", rather than those described under "—Subordinated Debt Securities". Furthermore, in some circumstances, the Subordinated Debt Securities may be treated as "contingent payment debt instruments", in which case a Subordinated US Holder might be required to accrue income on a Subordinated Debt Security in excess of stated interest and original issue discount, if any, and to treat as ordinary income, rather than capital gain, gain recognized on the disposition of such Subordinated Debt Security. Moreover, it is unclear how a

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Conversion of a Subordinated Debt Security should be treated for US federal income tax purposes, and each Subordinated US Holder should consult its own tax advisor regarding the US federal income tax consequences of a Conversion.

        In addition to regular US federal income tax, certain Subordinated US Holders that are individuals, estates or trusts are subject to a 3.8% tax on all or a portion of their "net investment income", which may include all or a portion of their income arising from a distribution with respect to a Subordinated Debt Security and net gain from the sale, exchange, redemption or other disposition of a Subordinated Debt Security.

        Backup withholding and information reporting requirements generally apply to interest and principal payments made to, and the proceeds of sales by, certain non-corporate Subordinated US Holders. A Subordinated US Holder not otherwise exempt from backup withholding generally can avoid backup withholding by providing a properly executed IRS Form W-9. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules generally will be allowed as a refund or a credit against a Subordinated US Holder's US federal income tax liability, provided the required information is timely furnished by such Subordinated US Holder to the IRS.

        A Subordinated US Holder that participates in any "reportable transaction" (as defined in the Treasury Regulations) must attach to its US federal income tax return a disclosure statement on IRS Form 8886. Each Subordinated US Holder should consult its own tax advisor regarding the possible obligation to file IRS Form 8886 reporting foreign currency loss arising from the Subordinated Debt Securities or any amounts received with respect to the Subordinated Debt Securities.

        Individual Subordinated US Holders (and certain US entities specified in US Treasury Department guidance) who, during any taxable year, hold any interest in any "specified foreign financial asset" generally will be required to file with their US federal income tax returns certain information on IRS Form 8938 if the aggregate value of all such assets exceeds certain specified amounts. "Specified foreign financial asset" generally includes any financial account maintained with a non-US financial institution and may also include the Subordinated Debt Securities if they are not held in an account maintained with a financial institution. Substantial penalties may be imposed, and the period of limitations on assessment and collection of US federal income taxes may be extended, in the event of a failure to comply. Each Subordinated US Holder should consult its own tax advisor regarding the possible application of this filing requirement.

FATCA Withholding

        It is possible that, in order to comply with FATCA, we (or, if the Debt Securities or the Ordinary Shares are held through another financial institution, such other financial institution) may be required (pursuant to an agreement entered into with the United States or under applicable law (including pursuant to the terms of any applicable intergovernmental agreement entered into between the United States and any other jurisdiction)) (i) to request certain information from holders or beneficial owners of the Debt Securities or the Ordinary Shares, which information may be provided to the IRS, and (ii) to withhold US tax on some portion of payments made after December 31, 2018 with respect to the Debt Securities, with respect to the issuance of any Ordinary Shares upon any Conversion or with

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respect to the Ordinary Shares if such information is not provided or if payments are made to certain foreign financial institutions that have not entered into a similar agreement with the United States (and are not otherwise required to comply with the FATCA regime under applicable law (including pursuant to the terms of any applicable intergovernmental agreement entered into between the United States and any other jurisdiction)).

        If we or any other person are required to withhold or deduct amounts arising under or in connection with FATCA from any payments made with respect to the Debt Securities, with respect to the issuance of any Ordinary Shares upon any Conversion or with respect to the Ordinary Shares, holders and beneficial owners of the Debt Securities, and the holders and beneficial owners of the Ordinary Shares issued upon any Conversion, will not be entitled to receive any gross up or other additional amounts on account of any such withholding or deduction. FATCA is complex and its application to the Debt Securities, any Conversion and the Ordinary Shares remains uncertain. Each holder and beneficial owner should consult its own tax advisor regarding the application of FATCA to the Debt Securities, any Conversion and the Ordinary Shares.

Australian Taxation

         THE FOLLOWING IS A SUMMARY OF THE AUSTRALIAN WITHHOLDING TAX TREATMENT UNDER THE INCOME TAX ASSESSMENT ACTS OF 1936 AND 1997 OF AUSTRALIA (TOGETHER, "THE AUSTRALIAN TAX ACT") AND THE TAXATION ADMINISTRATION ACT 1953 OF AUSTRALIA AT THE DATE OF THIS PROSPECTUS OF PAYMENTS OF INTEREST BY WESTPAC ON THE DEBT SECURITIES AND CERTAIN OTHER MATTERS RELEVANT TO HOLDERS OF DEBT SECURITIES ("HOLDERS").

         THE FOLLOWING SUMMARY IS NOT EXHAUSTIVE AND, IN PARTICULAR, DOES NOT DEAL WITH THE POSITION OF CERTAIN CLASSES OF HOLDERS (INCLUDING, WITHOUT LIMITATION, AUSTRALIAN RESIDENTS, NON-RESIDENTS THAT HOLD THE DEBT SECURITIES THROUGH A PERMANENT ESTABLISHMENT IN AUSTRALIA, DEALERS IN SECURITIES, OR CUSTODIANS OR THIRD PARTIES THAT HOLD THE DEBT SECURITIES ON BEHALF OF ANY PERSON). NOR DOES IT DEAL WITH DEBT SECURITIES ISSUED BY WESTPAC FROM A BRANCH OUTSIDE AUSTRALIA, OR WITH DUAL CURRENCY/PARTLY PAID OR INDEXED DEBT SECURITIES. IF SUCH DEBT SECURITIES ARE ISSUED, THEIR AUSTRALIAN TAXATION TREATMENT WILL BE SUMMARISED IN THE RELEVANT FINAL TERMS, APPLICABLE PROSPECTUS SUPPLEMENT OR TERM SHEET.

         THE FOLLOWING SUMMARY IS A GENERAL GUIDE AND SHOULD BE TREATED WITH APPROPRIATE CAUTION. IT IS NOT INTENDED TO BE, NOR SHOULD IT BE CONSTRUED AS, LEGAL OR TAX ADVICE TO ANY PARTICULAR HOLDER. PROSPECTIVE HOLDERS SHOULD BE AWARE THAT THE PARTICULAR TERMS OF ISSUE OF ANY SERIES OF DEBT SECURITIES MAY AFFECT THE TAX TREATMENT OF THAT AND OTHER SERIES OF DEBT SECURITIES. HOLDERS SHOULD CONSULT THEIR PROFESSIONAL ADVISERS.

        Generally, payments of principal and interest on the Debt Securities made by Westpac to a Holder that is not a resident of Australia for Australian tax purposes (a "Non-Resident") (other than one deriving the interest in carrying on business in Australia at or through a permanent establishment in Australia) will not be subject to Australian taxes or duties other than IWT at a rate of 10% of the amount of an interest payment. However, IWT will not be payable if an exemption applies.

        For IWT purposes, "interest" is defined to include amounts in the nature of, or paid in substitution for, interest and certain other amounts. Any premium or issue discount would be interest for these purposes.

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        There are also specific rules that can apply to treat a portion of the purchase price of the Debt Securities as interest for IWT purposes when Debt Securities that are originally issued at a discount, or with a maturity premium, or which do not pay interest at least annually, are sold by a Non-Resident (other than one holding the Debt Securities as part of a business carried on by it at or through a permanent establishment in Australia) to:

        Interest on the Debt Securities will be exempt from IWT if the requirements of section 128F are satisfied in relation to the Debt Securities.

        Westpac proposes to issue the Debt Securities in a manner which will satisfy the requirements of section 128F.

        The exemption from IWT available under section 128F is not intended to apply to related party loans. In particular, in order for that exemption to apply, Westpac must not have known or had reasonable grounds to suspect, at the time of their issue, that any of the Debt Securities, or an interest in the Debt Securities, were being or would later be acquired either directly or indirectly by an Offshore Associate 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 responsible entity of a registered scheme (as defined in the Corporations Act 2001 of Australia)).

        In addition, the exemption from IWT available under section 128F will not apply if, at the time of an interest payment in respect of the Debt Securities, Westpac knew or had reasonable grounds to suspect that the recipient of the payment was an Offshore Associate of Westpac (other than one receiving the payment in the capacity of a clearing house, paying agent, custodian, funds manager or responsible entity of a registered scheme (as defined in the Corporations Act 2001 of Australia)).

        For these purposes, an Offshore Associate means an associate (as defined in section 128F) of Westpac that is either:

Accordingly, if you are an Offshore Associate of Westpac, you should not acquire any of the Debt Securities.

        If Westpac is, at any time, compelled by law to deduct or withhold an amount in respect of IWT, then it must, subject to certain exceptions, pay such additional amounts as may be necessary in order to ensure that the aggregate amounts received by the Holders after such deduction or withholding equal the amounts that would have been received by them had no such deduction or withholding been required.

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        It is noted that Westpac will not be obliged to pay such additional amounts on account of IWT which is payable by reason of the Holder being an associate (as defined in section 128F) of Westpac.

        Westpac is required to deduct and withhold tax from payments of interest at a rate that is currently 49% for the 2016-17 income year (and, under current law, will be reduced to 47% following the 2016-17 income year) on the Debt Securities unless a TFN or, in certain circumstances, an ABN has been provided to Westpac by the Holder, or the Holder has supplied Westpac with proof of some other relevant exemption.

        Provided that the requirements of section 128F have been satisfied with respect to the Debt Securities, the TFN / ABN withholding rules will not apply to payments to Holders that are Non Residents and do not hold the Debt Securities in carrying on business in Australia at or through a permanent establishment in Australia.

        Westpac will not be obliged to pay additional amounts on account of taxes deducted or withheld on payments made in respect of Debt Securities presented for payment by a Holder that could lawfully avoid (but has not so avoided) such deduction or withholding by complying with any statutory requirements or making a declaration of non-residence or other claim or filing for exemption.

        Under section 12-315 of Schedule 1 to the Taxation Administration Act 1953 of Australia ("TAA"), regulations may be made that require amounts to be withheld on account of tax liabilities of Non-Residents from certain payments that are made by an Australian entity to such Non-Residents.

        These rules do not currently apply to payments in relation to the Debt Securities. However, the possible application of any future regulations to payments received by Non-Residents in respect of the Debt Securities will need to be monitored.

        Payments in respect of the Debt Securities will be able to be made free and clear of the "supply withholding tax" imposed under section 12-190 of Schedule 1 to the TAA.

        Non-Residents that have never held their Debt Securities in the course of carrying on business at or through a permanent establishment within Australia will not be subject to Australian income tax on gains realized by them on the sale or redemption of the Debt Securities provided that such gains do not have an Australian source. A gain arising on the sale of Debt Securities by a Non Resident Holder to another Non Resident where the Debt Securities are sold outside Australia and all negotiations are conducted, and documentation executed, outside Australia would not generally be regarded as having an Australian source.

        If a Conversion (including a partial Conversion) of the Subordinated Debt Securities occurs, the Australian tax consequences that may arise for holders are complex. Broadly, in certain circumstances, any gain or loss that may otherwise arise upon a Conversion of the Subordinated Debt Securities may be disregarded under the Australian Tax Act. There are also a range of tax consequences that may

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apply to holders of Ordinary Shares in acquiring, holding and disposing of Ordinary Shares. Holders should seek their own taxation advice in relation to the tax consequences if the Subordinated Debt Securities are converted into Ordinary Shares.

        The Commissioner of Taxation for Australia may give a direction under section 255 of the Australian Tax Act or section 260-5 of Schedule 1 to the TAA or any similar provision requiring Westpac to deduct or withhold from any payment to any other party (including any Holder) any amount in respect of tax payable by that other party. If Westpac is served with such a direction, Westpac intends to comply with that direction and make any deduction or withholding required by that direction.

        Neither the issue, nor the receipt, of the Debt Securities will give rise to a liability for GST in Australia on the basis that the supply of the Debt Securities will comprise either an "input taxed financial supply" or (in the case of a supply to a Non-Resident Holder outside Australia) a "GST-free supply". Furthermore, neither the payment of principal or interest by Westpac, nor the disposal or redemption of the Debt Securities, would give rise to any GST liability in Australia.

        No Debt Securities will be subject to death, estate or succession duties imposed by Australia, or by any political subdivision or authority therein having power to tax, if held at the time of death.

        No ad valorem stamp, issue, registration or similar taxes are payable in Australia on the issue or transfer of any Debt Securities.

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PLAN OF DISTRIBUTION

        We may sell the Debt Securities and Ordinary Shares 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: Branch Manager. Telephone requests may be directed to such person at (212) 551-1800.

        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:

        We also incorporate by reference each of the following documents that we 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 2000, Australia. 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. Subject to the matters set forth under the heading "Description of the Debt Securities—Description of the Senior Debt Securities—Events of Default" and "Description of the Debt Securities—Description of the Subordinated Debt Securities—Events of Default", 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. Westpac has appointed its New York branch, 575 Fifth Avenue, 39th Floor, New York, New York 10017-2422, Attention: Branch Manager, as its agent upon whom process may be served in any such action.

        All of the directors and executive officers of Westpac, and the independent accountants named herein, 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. In addition, it may not be possible for holders of securities to enforce against such persons 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, King & Wood Mallesons, 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 financial 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 by 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.

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

2012

    1.0388     1.0371     1.0806     0.9453  

2013

    0.9342     0.9885     1.0579     0.8901  

2014

    0.8737     0.9155     0.9705     0.8715  

2015

    0.7020     0.7781     0.8904     0.6917  

2016

    0.7667     0.7385     0.7817     0.6855  

2017(2)

    0.7669     0.7640     0.7715     0.7545  

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

(2)
Through November 4, 2016.

80


        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.


VALIDITY OF SECURITIES

        Debevoise & Plimpton LLP, our New York counsel, will pass, on our behalf, on the validity of the Debt Securities described in this prospectus with respect to New York law. King & Wood Mallesons, our Australian counsel, will pass, on our behalf, on the validity of the Debt Securities and Ordinary Shares with respect to Australian law. Debevoise & Plimpton LLP may rely on the opinion of King & Wood Mallesons 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, 2016, 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 Chartered Accountants Australia and New Zealand.


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 report described under "Experts" above, 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 Chartered Accountants Australia and New Zealand (NSW) Scheme adopted by Chartered Accountants Australia and New Zealand on October 8, 2014 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. For matters occurring on or prior to October 7, 2014, the liability of PwC Australia may be subject to the limitations set forth in predecessor schemes. The current NSW Accountants Scheme expires on October 7, 2019 unless further extended or replaced.

        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 to be done in the performance of its professional services for us, including, without limitation, its audits of our financial statements. The extent of the limitation depends on the timing of the relevant matter and is:

    in relation to matters occurring on or after October 8, 2013, a maximum liability for audit work of A$75 million; or

    in relation to matters occurring on or prior to October 7, 2013, 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.

        The limitations do not apply to claims for breach of trust, fraud or dishonesty.

        In addition, there is equivalent professional standards legislation in place in other states and territories 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. Accordingly, liability for acts or omissions by PwC Australia in Australian states or territories other than New South Wales may be limited in a manner similar to that

81


in New South Wales. 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 might be applied by the courts and the effect of the limitation on the enforcement of foreign judgments are untested.

82



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 (except a liability for legal costs), 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 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.

        Under the constitution, Westpac may pay or agree to pay premiums in respect of a contract of insurance which insures any person who is, or has been, a director or company secretary of Westpac or any of its related bodies corporate against liability incurred by that person in that capacity, including a liability for legal costs, unless:

    Westpac is forbidden by statute to pay or agree to pay the premium; or

    the contract would, if Westpac paid the premium, be made void by statute.

        Westpac from time to time arranges insurance cover in respect of the amounts which it may have to pay under the indemnities described above. The insurance policy prohibits disclosure of the premium payable and the nature of the liabilities covered.

Item 9.    Exhibits

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

II-1


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 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), (a)(1)(ii) and (a)(1)(iii) 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 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, 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 Securities 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.

II-2


    (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 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 purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the 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.

II-3


(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-4



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, State of New York, on November 9, 2016.

    WESTPAC BANKING CORPORATION

 

 

By:

 

/s/ SEAN CRELLIN

Sean Crellin
Director—Corporate, Legal and Secretariat

        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

 

 

 

 

 

 

 
*

Lindsay Maxsted
  Chairman   November 9, 2016

*

Elizabeth Bryan

 

Director

 

November 9, 2016

*

Ewen Crouch

 

Director

 

November 9, 2016

*

Alison Deans

 

Director

 

November 9, 2016

*

Robert Elstone

 

Director

 

November 9, 2016

*

Peter Hawkins

 

Director

 

November 9, 2016

*

Craig Dunn

 

Director

 

November 9, 2016

II-5


Name
 
Title
 
Date

 

 

 

 

 

 

 
*

Peter Marriott
  Director   November 9, 2016

*

Brian Hartzer

 

Managing Director and Chief Executive Officer (Principal Executive Officer)

 

November 9, 2016

*

Peter King

 

Chief Financial Officer (Principal Financial Officer)

 

November 9, 2016

*

David Lees

 

Deputy Chief Financial Officer (Principal Accounting Officer)

 

November 9, 2016

*

Sean Crellin

 

Authorized Representative in the United States

 

November 9, 2016

*By:

 

/s/ SEAN CRELLIN

Attorney-in-fact

 

 

 

 

II-6



EXHIBIT INDEX

Number   Description
  1.1   Form of Underwriting Agreement for offering of Senior Debt Securities (incorporated herein by reference to Exhibit 1.1 to our Report on Form 6-K filed on August 19, 2016)+

 

1.2

 

Form of Underwriting Agreement for offering of Subordinated Debt Securities*

 

4.1

 

Constitution of Westpac Banking Corporation as at December 13, 2012 (incorporated herein by reference to Exhibit 1 to our Report on Form 6-K filed on December 14, 2012)+

 

4.2

 

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, as trustee (incorporated herein by reference to Exhibit 4.1 to our Registration Statement on Form F-3 filed on September 16, 2008)+

 

4.3

 

Second Amended and Restated Subordinated Indenture, dated as of November 9, 2016, between Westpac Banking Corporation and The Bank of New York Mellon, as trustee

 

4.4

 

First Supplemental Indenture to Senior Indenture, dated as of August 27, 2009, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on August 27, 2009)+

 

4.5

 

Second Supplemental Indenture to Senior Indenture, dated as of November 19, 2009, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on November 19, 2009)+

 

4.6

 

Third Supplemental Indenture to Senior Indenture, dated as of August 3, 2010, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on August 3, 2010)+

 

4.7

 

Fourth Supplemental Indenture to Senior Indenture, dated as of December 9, 2010, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on December 9, 2010)+

 

4.8

 

Fifth Supplemental Indenture to Senior Indenture, dated as of August 14, 2012, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on August 14, 2012)+

 

4.9

 

Sixth Supplemental Indenture to Senior Indenture, dated as of September 25, 2012, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on September 25, 2012)+

 

4.10

 

Seventh Supplemental Indenture to Senior Indenture, dated as of January 14, 2013, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on January 14, 2013)+

 

4.11

 

Eighth Supplemental Indenture to Senior Indenture, dated as of July 30, 2013, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on July 30, 2013)+

 

4.12

 

Ninth Supplemental Indenture to Senior Indenture, dated as of November 25, 2013, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on November 25, 2013)+

 

4.13

 

Tenth Supplemental Indenture to Senior Indenture, dated as of January 13, 2014, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on January 17, 2014)+

II-7


Number   Description
  4.14   Eleventh Supplemental Indenture to Senior Indenture, dated as of May 21, 2014, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on May 27, 2014)+

 

4.15

 

Twelfth Supplemental Indenture to Senior Indenture, dated as of November 17, 2014, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on December 1, 2014)+

 

4.16

 

Thirteenth Supplemental Indenture to Senior Indenture, dated as of May 26, 2015, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on May 26, 2015)+

 

4.17

 

Fourteenth Supplemental Indenture to Senior Indenture, dated as of November 23, 2015, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on November 23, 2015)+

 

4.18

 

Fifteenth Supplemental Indenture to Senior Indenture, dated as of May 13, 2016, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on May 13, 2016)+

 

4.19

 

Sixteenth Supplemental Indenture to Senior Indenture, dated as of August 19, 2016, between Westpac Banking Corporation and The Bank of New York Mellon (incorporated herein by reference to Exhibit 4.1 to our Report on Form 6-K filed on August 19, 2016)+

 

4.20

 

Seventeenth Supplemental Indenture to Senior Indenture, dated as of November 9, 2016, between Westpac Banking Corporation and The Bank of New York Mellon

 

5.1

 

Opinion of Debevoise & Plimpton LLP

 

5.2

 

Opinion of King & Wood Mallesons

 

23.1

 

Consent of PricewaterhouseCoopers+

 

23.2

 

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

 

23.3

 

Consent of King & Wood Mallesons (included in Exhibit 5.2)

 

24.1

 

Power of Attorney of directors of Westpac Banking Corporation (incorporated herein by reference to Exhibit 24.1 to our Registration Statement on Form F-3 filed on November 10, 2015)+

 

24.2

 

Power of Attorney of David Lees

 

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 Second Amended and Restated Subordinated Indenture

*
To be filed subsequently by post-effective amendment or by a Report on Form 6-K pursuant to item 601 of Regulation S-K

+
Previously filed

II-8




Exhibit 4.3

 

 

SECOND AMENDED AND RESTATED

SUBORDINATED INDENTURE

 

between

 

WESTPAC BANKING CORPORATION

 

and

 

THE BANK OF NEW YORK MELLON

 

as Trustee

 

Dated as of November 9, 2016

 

Providing for Issuance of Subordinated
Debt Securities in Series

 

 



 

Reconciliation and tie between this Second Amended and Restated Subordinated Indenture, dated as of November 9, 2016, and the Trust Indenture Act of 1939, as amended.

 

Trust Indenture Act of 1939
Section

 

Subordinated Indenture
Section

 

 

 

 

310

(a) (1)

 

9.11

 

(a) (2)

 

9.11

 

(a) (3)

 

TIA

 

(a) (4)

 

Not Applicable

 

(b)

 

9.9; 9.11; TIA

 

 

 

 

311

(a)

 

TIA

 

(b)

 

TIA

 

 

 

 

3.12

(a)

 

9.7

 

(b)

 

TIA

 

(c)

 

TIA

 

 

 

 

313

(a)

 

9.1; TIA

 

(b)

 

TIA

 

(c)

 

9.6; TIA

 

(d)

 

9.6

 

 

 

 

314

(a)

 

12.6; 12.7; 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)

 

9.5

 

(c)

 

9.1

 

(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)

 

8.5

 

(a) (1)(B)

 

TIA

 

(b)

 

8.7; TIA

 

(c)

 

TIA

 

 

 

 

317

(a) (1)

 

TIA

 

(a) (2)

 

8.2

 

(b)

 

12.3

 

 

 

 

318

(a)

 

1.11

 

(b)

 

TIA

 

(c)

 

1.11; TIA

 

This reconciliation and tie section does not constitute part of the Second Amended and Restated 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

17

Section 1.3.

Form of Documents Delivered to Trustee

17

Section 1.4.

Acts of Holders

18

Section 1.5.

Notices, etc., to Trustee and Company

20

Section 1.6.

Notice to Holders; Waiver

21

Section 1.7.

Headings and Table of Contents

21

Section 1.8.

Successors and Assigns

21

Section 1.9.

Separability

22

Section 1.10.

Benefits of Indenture

22

Section 1.11.

Governing Law

22

Section 1.12.

Legal Holidays

23

Section 1.13.

No Recourse Against Others

23

Section 1.14.

Consent to Service

23

Section 1.15.

Waiver of Jury Trial

24

Section 1.16.

Counterparts

24

Section 1.17.

Restatement of Amended Indenture

25

 

 

 

ARTICLE II

 

SECURITY FORMS

 

 

 

Section 2.1.

Forms Generally

25

Section 2.2.

Form of Trustee’s Certificate of Authentication

25

Section 2.3.

Securities in Global Form

26

Section 2.4.

Form of Legend for Securities in Global Form

26

 

 

 

ARTICLE III

 

THE SECURITIES

 

 

 

Section 3.1.

Amount Unlimited; Issuable in Series

27

Section 3.2.

Denominations

30

Section 3.3.

Execution, Authentication, Delivery and Dating

30

Section 3.4.

Temporary Securities

33

Section 3.5.

Registration, Transfer and Exchange

34

Section 3.6.

Replacement Securities

37

Section 3.7.

Payment of Interest; Interest Rights Preserved

38

 

iii



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

Section 3.8.

Persons Deemed Owners

39

Section 3.9.

Cancellation

40

Section 3.10.

Computation of Interest

40

Section 3.11.

Currency and Manner of Payment in Respect of Securities

40

Section 3.12.

Appointment and Resignation of Exchange Rate Agent

46

Section 3.13.

CUSIP Numbers

46

 

 

 

ARTICLE IV

 

STATUS OF THE SECURITIES

 

 

 

Section 4.1.

Acknowledgements

47

Section 4.2.

Status and Subordination

47

Section 4.3.

Solvency Condition

48

Section 4.4.

Winding-Up

48

Section 4.5.

No Set-Off

49

Section 4.6.

Clawback

50

Section 4.7.

Other Provisions

50

 

 

 

ARTICLE V

 

NON-VIABILITY, CONVERSION AND WRITE-OFF

 

 

 

Section 5.1.

Non-Viability Trigger Event

50

Section 5.2.

Automatic Conversion or Write-off upon the Occurrence of a Non-Viability Trigger Event

52

Section 5.3.

No Further Rights

53

Section 5.4.

Consent to Receive Ordinary Shares and Other Acknowledgements

54

Section 5.5.

Issue of Ordinary Shares of Successor Company

55

Section 5.6.

No Conversion at the Option of the Holders

55

Section 5.7.

No Rights before Conversion

55

Section 5.8.

Trustee’s Rights upon Conversion or Write-off

55

 

 

 

ARTICLE VI

 

PROCEDURES FOR CONVERSION

 

 

 

Section 6.1.

Conversion

57

Section 6.2.

Adjustments to VWAP Generally

59

Section 6.3.

Adjustments to VWAP for Capital Reconstruction

60

Section 6.4.

Adjustments to Issue Date VWAP Generally

60

Section 6.5.

Adjustments to Issue Date VWAP for Bonus Issues

60

Section 6.6.

Adjustments to Issue Date VWAP for Capital Reconstruction

61

 

iv



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

Section 6.7.

No Adjustment to Issue Date VWAP in Certain Circumstances

61

Section 6.8.

Announcement of Adjustment to Issue Date VWAP

62

Section 6.9.

Status and Listing of Ordinary Shares

62

Section 6.10.

Conversion: receipt of Ordinary Shares; where the Holder of Securities does not wish to receive Ordinary Shares; Holders’ Nominee

62

Section 6.11.

Conversion or Write-off if Amounts Not Paid

65

Section 6.12.

Conversion or Write-off After Winding-Up Commences

66

Section 6.13.

Conversion or Write-off of a Percentage of Outstanding Principal Amount

66

Section 6.14.

Amendment of Terms and Conditions Relating to Conversion for Approved Successor

66

Section 6.15.

Power of Attorney

68

Section 6.16.

Cancellation

69

Section 6.17.

Calculations

69

 

 

 

ARTICLE VII

 

SATISFACTION AND DISCHARGE

 

 

 

Section 7.1.

Termination of Company’s Obligations Under the Indenture

69

Section 7.2.

Repayment to Company

69

 

 

 

ARTICLE VIII

 

EVENTS OF DEFAULT, DEFAULTS AND REMEDIES

 

 

 

Section 8.1.

Events of Default

69

Section 8.2.

Trustee May File Proofs of Claim

71

Section 8.3.

Trustee May Enforce Claims Without Possession of Securities

71

Section 8.4.

Delay or Omission Not Waiver

72

Section 8.5.

Control by Majority

72

Section 8.6.

Limitation on Suits by Holders

72

Section 8.7.

Rights of Holders to Receive Payment

73

Section 8.8.

Application of Money Collected

73

Section 8.9.

Restoration of Rights and Remedies

73

Section 8.10.

Rights and Remedies Cumulative

74

Section 8.11.

Waiver of Stay, Extension or Usury Laws

74

Section 8.12.

Waiver of Sovereign Immunity

74

 

v



 

Table of Contents

(continued)

 

 

 

Page

 

ARTICLE IX

 

THE TRUSTEE

 

Section 9.1.

Rights, Duties and Responsibilities of Trustee

75

Section 9.2.

Trustee May Hold Securities

76

Section 9.3.

Money Held in Trust

76

Section 9.4.

Trustee’s Disclaimer

76

Section 9.5.

Notice of Defaults

77

Section 9.6.

Reports by Trustee to Holders

77

Section 9.7.

Security Holder Lists

77

Section 9.8.

Compensation and Indemnity

78

Section 9.9.

Replacement of Trustee

78

Section 9.10.

Acceptance of Appointment by Successor

80

Section 9.11.

Eligibility; Disqualification

81

Section 9.12.

Merger, Conversion, Consolidation or Succession to Business

82

Section 9.13.

Appointment of Authenticating Agent

82

Section 9.14.

Preferential Collection of Claims Against Company

84

 

 

 

ARTICLE X

 

CONSOLIDATION, MERGER OR SALE BY THE COMPANY

 

 

 

Section 10.1.

Consolidation, Merger or Sale of Assets Permitted

84

 

 

 

ARTICLE XI

 

SUPPLEMENTAL INDENTURES

 

 

 

Section 11.1.

Supplemental Indentures Without Consent of Holders

85

Section 11.2.

With Consent of Holders

87

Section 11.3.

Compliance with Trust Indenture Act

89

Section 11.4.

Execution of Supplemental Indentures

89

Section 11.5.

Effect of Supplemental Indentures

89

Section 11.6.

Reference in Securities to Supplemental Indentures

89

 

 

 

ARTICLE XII

 

COVENANTS

 

 

 

Section 12.1.

Payment of Principal and Interest

89

Section 12.2.

Maintenance of Office or Agency

90

Section 12.3.

Money for Securities to Be Held in Trust; Unclaimed Money

90

 

vi



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

Section 12.4.

Corporate Existence

91

Section 12.5.

Insurance

92

Section 12.6.

Reports by the Company

92

Section 12.7.

Annual Review Certificate

92

Section 12.8.

Withholding Tax and Payment of Additional Amounts

93

Section 12.9.

Payment of Stamp Taxes

95

Section 12.10.

Indemnification of Judgment Currency

95

Section 12.11.

Waiver of Certain Covenants

96

 

 

 

ARTICLE XIII

 

REDEMPTION

 

 

 

Section 13.1.

Applicability of Article

96

Section 13.2.

Election to Redeem; Notice to Trustee

97

Section 13.3.

Selection of Securities to Be Redeemed

97

Section 13.4.

Notice of Redemption

97

Section 13.5.

Deposit of Redemption Price

98

Section 13.6.

Securities Payable on Redemption Date

99

Section 13.7.

Securities Redeemed in Part

99

Section 13.8.

Redemption for Taxation or Regulatory Reasons

99

 

vii


 

SECOND AMENDED AND RESTATED SUBORDINATED INDENTURE (this “ Indenture ”), dated as of November 9, 2016, 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 principal office at Level 2, 275 Kent Street, Sydney, New South Wales 2000, Australia and the Bank of New York Mellon, a New York banking corporation as Trustee hereunder (the “ Trustee ”).

 

Recitals

 

WHEREAS, the Company and a predecessor Trustee have heretofore become parties to a Subordinated Indenture, dated as of July 1, 1999 (the “ Amended Indenture ”), as amended and restated on May 15, 2003, providing for the issuance of unsecured subordinated debentures, notes or other evidences of indebtedness of the Company (“ Securities ”);

 

WHEREAS, the Company desires to further amend and restate the Amended Indenture in order to modify certain terms relating to subordination to comply with the applicable requirements of the Australian Prudential Regulation Authority (“ APRA ”) relating to 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 11.1(5) of the Amended Indenture permits the parties hereto to execute and deliver this Indenture to amend and restate the Amended Indenture with respect to Securities issued on or after the date hereof; 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”).

 

Additional Tier 1 Capital ” has the meaning given to it in the Prudential Standards.

 

Administrative Action ” means any judicial decision, official pronouncement or action, published or private ruling, interpretative decision, regulatory procedure or policy, application of regulatory procedure or policy and any notice or announcement (including any notice or announcement of intent to adopt or make any of those things).

 

Adverse Tax Event ” shall, with respect to any Securities of a series, mean that either:

 

(i)                                      any amendment to, clarification of, or change in the Tax Legislation which has been or will be effected; or

 

(ii)                                   any Administrative Action under or in connection with the Tax Legislation or any amendment to, clarification of, or change in, any such Administrative Action,

 

being in each case by any legislative body, court, government authority or regulatory body (irrespective of the manner in which such amendment, clarification, change or Administrative Action is announced) on or after the issue date of the Securities of such series but which the Company did not expect at the issue date of the Securities of such series (provided that, if after the issue date of the Securities of such series a Relevant

 

2



 

Transaction occurs, and the home jurisdiction for tax purposes of such other entity is not Australia (or if such home jurisdiction has already become a jurisdiction other than Australia, is different to the jurisdiction which it is immediately prior to the Relevant Transaction), the references to “issue date” of the Securities of such series shall be deemed to be to the date the Relevant Transaction is completed) and: (a) there is a material risk that the Company would be exposed to a more than de minimis adverse tax consequence in relation to the Securities of such series; or (b) the Company determines that any interest payable on the Securities of such series is not, or may not be, allowed as a deduction for the purposes of Australian tax; or (c) the Company has or will become obliged to pay additional amounts.

 

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.

 

Approved Successor ” means a company that replaces, or is proposed to replace, the Company as the ultimate parent company of the Group and that satisfies the following requirements:

 

(a)                                  the proposed successor company complies with all applicable legal requirements and obtains any necessary regulatory approvals (including, to the extent required, APRA’s prior written approval);

 

(b)                                  the proposed successor company agrees to take any necessary action to give effect to an amendment to the terms of this Indenture pursuant to Section 6.14 of this Indenture;

 

(c)                                   the ordinary shares of the proposed successor company are to be listed on the ASX or any internationally recognized stock exchange;

 

(d)                                  the proposed successor company has a place of business in New South Wales, Australia or has appointed a process agent in New South Wales, Australia to receive service of process on its behalf in relation to any legal proceedings arising out of or in connection with the Securities;

 

(e)                                   the proposed successor company has, in the reasonable opinion of an independent expert, the financial capacity to perform the Company’s obligations under this Indenture in respect of the Securities; and

 

3



 

(f)                                    the proposed replacement of the Company and the requirements of paragraphs (a) to (c) of this definition would not, in the reasonable opinion of an independent expert, otherwise adversely affect the interests of Holders of the Securities, and for the purposes of this definition, “independent expert” means a reputable investment bank operating in Australia or an investment bank of international repute acting independently of the Company and appointed by the Company to provide the opinions referred to in paragraphs (e) and (f) of this definition.

 

APRA ” has the meaning stated in the second recital of this Indenture.

 

Assets ” means, in respect of the Company, its total non-consolidated gross assets as shown by the latest published full-year audited or half-year reviewed accounts, as the case may be, of the Company, but adjusted for events subsequent to the date of such accounts in such manner and to such extent as two authorized signatories of the Company or, if the Company is in Winding-Up, the liquidator may determine to be appropriate.

 

ASX ” means the Australian Securities Exchange operated by ASX Limited (ABN 98 008 624 691).

 

ASX Business Day ” means a business day as defined in the ASX Listing Rules.

 

ASX Listing Rules ” means the listing rules of ASX from time to time with any modifications or waivers in their application to the Company which ASX may grant.

 

Australian Banking Act ” means the Banking Act 1959 of Australia, as amended or any successor act.

 

Australian Corporations Act ” means the Corporations Act 2001 of Australia, as amended or any successor act.

 

Australian Dollars ” and “A$” mean the lawful currency of Australia.

 

Australian Tax Act ” means the Income Tax Assessment Act 1936 of Australia, as amended, or any successor act.

 

Authenticating Agent ” means any authenticating agent appointed by the Trustee pursuant to Section 9.13.

 

Authorized Officer ” means the Company’s Chairman of the Board, its Managing Director, its Chief Financial Officer, its Deputy Chief Financial Officer, any Group Executive, any General Manager, its Group Treasurer, its Deputy Group Treasurer, its Head of Global Funding, its Head of Structured Funding and Capital, its General Counsel, Treasury & Corporate, its Counsel & Head of Legal, Group Treasury, any

 

4



 

Executive Director, Group Treasury, any Director, Group Treasury, any Senior Manager, Group Treasury, 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, and any other persons duly authorized from time to time by the Company.

 

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.

 

Clearing System Holder ” means that the Holder is the operator of a clearing system or a depository, or a nominee for a depository, for a clearing system.

 

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.

 

Common Equity Tier 1 Capital ” has the meaning given to it in the Prudential Standards.

 

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.

 

Conversion ” means, upon the occurrence of a Non-Viability Trigger Event, the conversion of all or some Securities (or a percentage of the Outstanding Principal Amount of each Security) into Ordinary Shares of the Company in accordance with the terms of this Indenture. “Convert” and “Converted” shall have corresponding meanings.

 

5



 

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 101 Barclay Street, Floor 4E, New York, New York 10286, Attention:  Institutional Corporate Trust.

 

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

 

Denomination ” shall have the meaning given in an indenture supplemental hereto for the Securities of any series.

 

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.

 

Equal Ranking Instruments ” means instruments which satisfy the requirements set out in one of the following paragraphs (a), (b) or (c):

 

(a)                                  any instruments, present and future, issued by the Company after January 1, 2013 which:

 

(i)                                      by their terms are, or are expressed to be, subordinated in a Winding-Up to the claims of Senior Creditors;

 

(ii)                                   qualify as Tier 2 Capital of the Company; and

 

(iii)                                in a Winding-Up rank, or are expressed to rank, prior to, and senior in right of payment to, instruments which constitute Additional Tier 1 Capital or Common Equity Tier 1 Capital of the Company (or any instruments which were issued prior to January 1, 2013 and were treated as constituting tier one capital in accordance with the Prudential Standards which applied prior to January 1, 2013 irrespective of whether or not such instruments are treated as constituting tier one capital in accordance with any transitional arrangements approved by APRA);

 

(b)                                  the Perpetual Capital Notes (irrespective of whether or not such instruments are treated as constituting Tier 2 Capital in accordance with any transitional arrangements approved by APRA); or

 

6



 

(c)                                   any other instruments, present and future, issued by the Company where, the right to repayment ranks, or is expressed to rank, in a Winding-Up, equally with the claims of Holders of Securities (irrespective of whether or not such instruments qualify as Tier 2 Capital of the Company).

 

FATCA ” means Section 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended, including any regulations or official interpretations issued, agreements (including, without limitation, intergovernmental agreements) entered into or non-U.S. laws enacted with respect thereto.

 

FATCA Withholding ” means any deduction or withholding made for or on account of FATCA.

 

Foreign Holder ” means a Holder of Securities (a) whose place of residence is outside Australia or (b) who the Company otherwise believes may not be a resident of Australia.

 

Group ” means the Company and its controlled entities (within the meaning of the Australian Corporations Act).

 

Holder ” means a person in whose name such Registered Security is registered on the Register.

 

Indenture ” means this Second Amended and Restated 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.

 

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

 

Interest Rate ” means the rate or rates (expressed as a percentage per annum) of interest payable in respect of the Outstanding Principal Amount of the Securities specified in an indenture supplemental hereto for the Securities of any series or calculated or determined in accordance with the provisions specified in an indenture supplemental hereto for the Securities of any series.

 

Issue Date VWAP ” means the VWAP during the period of 20 ASX Business Days on which trading in Ordinary Shares took place immediately preceding but not including the issue date of the Securities of a series, as adjusted in accordance with Article VI.

 

Junior Ranking Capital Instruments ” means instruments, present and future, issued by the Company which:

 

7



 

(a)                                  by their terms are, or are expressed to be, subordinated in a Winding-Up to the claims of Holders of Securities and other Equal Ranking Instruments; and

 

(b)                                  qualify as Additional Tier 1 Capital or Common Equity Tier 1 Capital of the Company (or, in the case of any instruments issued prior to January 1, 2013, were treated as constituting tier one capital in accordance with the Prudential Standards which applied prior to January 1, 2013 irrespective of whether or not such instruments are treated as constituting Tier 1 Capital in accordance with any transitional arrangements approved by APRA);

 

Liabilities ” means, in respect of the Company, its total non-consolidated gross liabilities as shown by its latest published full-year audited or half-year reviewed accounts, as the case may be, but adjusted for events subsequent to the date of such accounts in such manner and to such extent as two authorized signatories of the Company or, if the Company is in Winding-Up, the liquidator may determine to be appropriate.

 

Maturity ”, when used with respect to any Security, means the date on which the Outstanding Principal Amount of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or in accordance with Section 8.1, call for redemption or otherwise.

 

Non-Viability Trigger Event ” occurs when APRA notifies the Company in writing that it believes:

 

(a)                                  Conversion or Write-off of all or some Securities, or conversion or write-off of all or some Relevant Securities is necessary because, without it, the Company would become non-viable; or

 

(b)                                  a public sector injection of capital, or equivalent support, is necessary because, without it, the Company would become non-viable.

 

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.

 

Ordinary Share ” means a fully paid ordinary share in the capital of the Company.

 

8



 

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 canceled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)                                   Securities, or portions thereof, for whose payment or redemption money 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, 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 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 Outstanding Principal Amount of the 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, ( y ) the Outstanding 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 Outstanding Principal Amount of such Security 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

 

9



 

not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

 

Outstanding Principal Amount ” means in respect of any Security which is outstanding at any time, the outstanding principal amount of the Security, and for such purposes:

 

(a)                                  the principal amount of a Security issued at a discount or at par, but which has not been Converted or Written-off, is at any time to be taken to be equal to its Denomination;

 

(b)                                  if an amount is required to be determined in Australian Dollars, the Australian Dollar equivalent of the Specified Currency is to be determined on the basis of the spot rate of exchange for the sale of Australian Dollars against the purchase of such relevant Specified Currency in the Sydney foreign exchange market quoted by any leading bank selected by the Company on the relevant calculation date.  The calculation date is, at the discretion of the Company, either the date specified in the relevant formula or the preceding day on which commercial banks and foreign exchange markets are open for business in Sydney or such other date as may be specified by the Company in an indenture supplemental hereto for the Securities of any series; and

 

(c)                                   if the principal amount of a Security has from time to time been Converted or Written-off pursuant to Articles V and VI, the principal amount of the Security will be reduced by the principal amount so Converted or Written-off.

 

Paying Agent ” means any Person authorized by the Company to pay the principal or interest and any other payments on any Securities on behalf of the Company.

 

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.

 

Perpetual Capital Notes ” means the Perpetual Capital Floating Rate Notes issued by the Company on September 30, 1986 (as may be varied or amended from time to time).

 

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.

 

10


 

Place of Payment ”, when used with respect to the Securities of or within any series, means the place or places where the principal and interest and any other payments on such Securities are payable as specified as contemplated by Sections 3.1 and 12.2.

 

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.

 

Prudential Standards ” means the prudential standards and guidelines published by APRA and as applicable to the Company from time to time.

 

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.

 

Regulatory Event ” shall, with respect to any Securities of a series, mean that either:

 

(i)                                      as a result of any amendment to, clarification of or change (including any announcement of a change that will be introduced) in, any law or regulation of the Commonwealth of Australia or the Prudential Standards, or any official administrative pronouncement or action or judicial decision interpreting or applying such law, regulation or Prudential Standards, which amendment, clarification or change is effective, or pronouncement, action or decision is announced, on or after the issue date of the Securities of such series; or

 

11



 

(ii)                                   written confirmation is received from APRA after the issue date of the Securities of such series that,

 

and, in either case, (i) the Company did not expect at the issue date of the Securities of such series such matter to occur and (ii) the Company is not or will not be entitled to treat all of the Securities of such series as Tier 2 Capital.

 

Related Entity ” means an entity over which the Company or any parent of the Company exercises control or significant influence, as determined by APRA from time to time.

 

Relevant Securities ” means Relevant Tier 1 Securities and Relevant Tier 2 Securities.

 

Relevant Tier 1 Security ” means a security forming part of the Tier 1 Capital of the Company on a “Level 1 basis” or “Level 2 basis” in accordance with the Prudential Standards which, upon the occurrence of a Non-Viability Trigger Event, may be either:

 

(a)           converted into Ordinary Shares; or

 

(b)           written-off or written-down (and all rights and claims of the holders in respect of the security shall be written-off or written-down).

 

Relevant Tier 2 Security ” means a security, including the Securities, forming part of the Tier 2 Capital of the Company on a “Level 1 basis” or “Level 2 basis” in accordance with the Prudential Standards which, upon the occurrence of a Non-Viability Trigger Event, may be either:

 

(a)           converted into Ordinary Shares; or

 

(b)           written-off or written-down (and all rights and claims of the holders in respect of the security shall be written-off or written-down).

 

Relevant Transaction ” means a transaction in which the Company is merged into or consolidated with another entity or all or substantially all of the Company’s assets are sold or transferred to another entity and such entity assumes the obligations of the Company under this Indenture and the Securities.

 

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.

 

Senior Creditors ” means all depositors and other creditors (present and future) of the Company, including all holders of the Company’s debt:

 

(a)           whose claims are admitted in a Winding-Up; and

 

(b)           whose claims are not made as holders of indebtedness arising under:

 

(i)            an Equal Ranking Instrument; or

 

(ii)           a Junior Ranking Capital Instrument.

 

Senior Creditors include holders of any instruments issued by the Company prior to January 1, 2013  which constituted Lower Tier 2 Capital as described in the Prudential Standards as in effect prior to January 1, 2013, irrespective of whether or not such instruments are treated as constituting Tier 2 Capital in accordance with any transitional arrangements approved by APRA.

 

Solvent ” with respect to the Company, shall mean (i) it is able to pay its debts as they fall due; and (ii) its Assets exceed its Liabilities.

 

Solvent Reconstruction ” means a scheme of amalgamation or reconstruction not involving a bankruptcy or insolvency, where the obligations of the Company in relation to the Outstanding Securities are assumed by the successor entity to which all, or substantially all, of the property, assets and undertaking of the Company are transferred or where an arrangement with similar effect not involving a bankruptcy or insolvency is implemented.

 

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

 

Specified Currency ” shall have the meaning given an indenture supplemental hereto for the Securities of any series.

 

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 as the

 

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fixed date on which the Outstanding Principal Amount 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).

 

Tax Legislation ” means (a) the Income Tax Assessment Act 1936 of Australia or the Income Tax Assessment Act 1997 of Australia (both as amended from time to time, as the case may be, and a reference to any section of the Income Tax Assessment Act 1936 includes a reference to that section as rewritten in the Income Tax Assessment Act 1997), (b) any other law setting the rate of income tax payable by the Company, and (c) any regulation made under such laws.

 

Tier 1 Capital ” has the meaning given to it in the Prudential Standards .

 

Tier 2 Capital ” has the meaning given to it in the Prudential Standards.

 

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 11.3.

 

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.

 

VWAP ” means, subject to any adjustments under the provisions of Article VI, the average of the daily volume weighted average sale prices (such average and each such daily average sale price being expressed in Australian dollars and cents and rounded to the nearest full cent, with A$0.005 being rounded upwards) of Ordinary Shares sold on ASX during the relevant period or on the relevant days but does not include any “crossing” transacted outside the “Open Session State” or any “special crossing” transacted at any time, each as defined in the ASX Market Rules or any overseas trades or trades pursuant to the exercise of options over Ordinary Shares.

 

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VWAP Period ” means the period of 5 ASX Business Days on which trading in Ordinary Shares took place immediately preceding (but not including) the Non-Viability Trigger Event Date.

 

Winding-Up ” means the legal procedure for the liquidation of the Company commenced when:

 

(a)           a court order is made for the winding-up of the Company; or

 

(b)                                  an effective resolution is passed by members for the winding-up of the Company,

 

other than in connection with a Solvent Reconstruction.

 

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)

 

 

 

“Approved Replacement Notice”

 

6.14

 

 

 

“Approved Successor Shares”

 

6.14

 

 

 

“Attorney”

 

6.15

 

 

 

“CHESS”

 

6.10(a)(ii)

 

 

 

“Claims”

 

9.8(b)

 

 

 

“Component Currency”

 

3.11(h)

 

 

 

“Conversion Number”

 

6.1(a)

 

 

 

“Cum Value”

 

6.2

 

 

 

“Defaulted Interest”

 

3.7(b)

 

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Term

 

Section

 

 

 

“Election Date”

 

3.11(h)

 

 

 

“Euro”

 

3.11(h)

 

 

 

“Event of Default”

 

8.1

 

 

 

“Exchange Rate Agent”

 

3.11(h)

 

 

 

“Exchange Rate Officers’ Certificate”

 

3.11(h)

 

 

 

“Expiration Date”

 

1.4(g)

 

 

 

“Foreign Currency”

 

3.11(h)

 

 

 

“Foreign Currency Conversion Date”

 

3.11(d)

 

 

 

“Foreign Currency Conversion Event”

 

3.11(h)

 

 

 

“Holders’ Nominee”

 

6.10(b)(vii)

 

 

 

“Judgment Currency”

 

12.10

 

 

 

“Market Exchange Rate”

 

3.11(h)

 

 

 

“Maximum Conversion Number”

 

6.1(a)

 

 

 

“Non-Viability Trigger Event”

 

5.1(c)(iii)

 

 

 

“Reclassification”

 

6.3

 

 

 

“Register”

 

3.5

 

 

 

“Registrar”

 

3.5

 

 

 

“Replacement”

 

6.14

 

 

 

“Specified Amount”

 

3.11(h)

 

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Term

 

Section

 

 

 

“Specified Currency”

 

12.10

 

 

 

“Valuation Date”

 

3.11(c)

 

 

 

“Write-off” or “Written-off”

 

5.3(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 12.7) 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

 

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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 9.1) 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

 

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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)           [Reserved].

 

(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 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 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 canceled and of no effect), and nothing in this paragraph shall be

 

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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 Outstanding 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 Outstanding 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, Level 2, 275 Kent Street, Sydney, New South

 

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Wales 2000, Australia, Attention: Structured Funding and Capital, 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 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.

 

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 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

 

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.

 

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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, the Senior Creditors, any Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 1.11.         Governing Law .

 

(1)           This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York without regard to conflict of law principles, other than as required by mandatory provisions of law; except for Articles IV, V and VI 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.

 

(2)           ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE COMPANY, THE TRUSTEE, THE REGISTRAR, THE PAYING AGENT OR ANY OTHER AGENT, ARISING OUT OF OR RELATING TO THIS INDENTURE, AND ANY SECURITY MAY BE BROUGHT IN A UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE CITY OF NEW YORK, THE BOROUGH OF MANHATTAN, AND BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH OF THE COMPANY, THE TRUSTEE, THE REGISTRAR,  THE PAYING AGENT AND ANY OTHER AGENT, (IN SUCH CAPACITIES) ACCEPT, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.

 

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(3)           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.

 

(4)           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.

 

Section 1.12.         Legal Holidays .  Unless otherwise provided with respect to any Security or Securities pursuant to Section 3.1, and subject to Section 6.1(b), in any case where any Interest Payment Date, Redemption 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, payment of principal 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, 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.         Consent to Service .  The Company has designated and appointed Westpac Banking Corporation, New York branch, 575 Fifth Avenue, 39th Floor, New York, New York 10017-2422, Attention:  Branch Manager, as its authorized agent for service of process in any proceeding arising out of or relating to this Indenture, the Securities of any series brought in any federal or state court sitting in the Borough of

 

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Manhattan in The City of New York. By the execution and delivery of this Indenture, the Company irrevocably submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and agrees that service of process upon said agent, together with written notice of said service to the Company, shall be deemed in every respect effective service of process upon the Company, in any such suit or proceeding; provided, that a Security may specify additional jurisdictions as to which the Company may consent to the non-exclusive jurisdiction of its courts with respect to such Security. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of said agent or a successor agent in full force and effect so long as any of the Securities shall be Outstanding.

 

Section 1.15.         Waiver of Jury Trial .  EACH OF THE PARTIES TO THIS INDENTURE HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS INDENTURE, THE SECURITIES OR ANY DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION.  The scope of this waiver is intended to encompass any and all disputes that may be filed in any court and that relate to the subject matter of this transaction including without limitation contract claims, tort claims, breach of duty claims, and all other common law and statutory claims.  Each party hereto acknowledges that this waiver is a material inducement to enter into a business relationship, that such party has already relied on the waiver in entering into this Indenture, and that such party will continue to rely on the waiver in its related future dealings.  Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS INDENTURE OR ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS INDENTURE.  In the event of litigation, this Indenture may be filed as a written consent to a trial by the court.

 

Section 1.16.         Counterparts .  This Indenture and any amendments, waivers, consents or supplements hereto or thereto may be executed in any number of counterparts, and by different parties hereto in separate counterparts, and each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. This Indenture shall become effective upon the execution of a counterpart hereof by each of the parties hereto.  The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the Amended Indenture for all purposes.  Signatures of the parties

 

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hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 

Section 1.17.         Restatement of Amended Indenture .  This Indenture amends and restates the Amended 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 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 as evidenced by their execution of the Securities.  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 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 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.

 

The definitive Securities 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 as evidenced by their execution of such Securities.

 

Section 2.2.           Form of Trustee’s Certificate of Authentication .  Subject to Section 9.13, the Trustee’s certificate of authentication shall be in substantially the following form:

 

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

 

The Bank of New York Mellon, as Trustee

 

 

 

 

 

Dated:

 

 

By:

 

 

 

 

 

Authorized Signature

 

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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 Outstanding 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 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 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

 

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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 Outstanding 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, subject to such matters being consistent and in compliance with the Prudential Standards in effect at the time of issuance of such Securities:  ( 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 Outstanding 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 3.3, 3.4, 3.5, 3.6, 11.6, or 13.7);

 

(3)           the date or dates on which the principal of 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 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 any such interest shall be payable and, with respect to Registered

 

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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 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 13.3, 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 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)           conversion or write-off provisions that vary or add to those set forth in this Indenture, including whether conversion or write-off will be the primary loss absorption mechanism;

 

(10)         if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issued;

 

(11)         if other than Dollars, the currency or currencies (including currency unit or units) in which the principal 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;

 

(12)         if the payments of principal 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

 

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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;

 

(13)         [Reserved];

 

(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;

 

(15)         if the Outstanding 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 Outstanding 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 Outstanding 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 covenants of the Company set forth in Article XII pertaining to the Securities of the series;

 

(18)         the date as of which 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;

 

(19)         the forms of the Securities of the series;

 

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

 

(21)         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;

 

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

 

(23)         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

 

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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;

 

(24)         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 Articles IV, V and VI, the laws of New South Wales, Commonwealth of Australia; and

 

(25)         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 the Prudential Standards 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 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.

 

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.

 

Securities 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

 

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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 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,

 

(1)           if the forms of such Securities 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 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 have been complied with; and

 

(3)           such Securities 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,

 

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( 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.

 

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 Outstanding Principal Amount of the Securities of such series to be represented by such Security or Securities in global form, ( ii ) shall be registered in the name of the Depositary for such Security or Securities in global form or the nominee of such Depositary, ( iii ) shall be

 

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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, as amended, 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.

 

No Security 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.  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.

 

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 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.  In the case of Securities of any series, all or a portion of such temporary Securities may be in global form.

 

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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 12.2 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, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like Outstanding Principal Amount of definitive Securities of the same series of authorized denominations and of like tenor.  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 12.2 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 12.2 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 Outstanding Principal Amount.

 

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 Outstanding 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.

 

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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)(24) 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 Outstanding Principal Amount equal to the Outstanding 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 Outstanding Principal Amount equal to the Outstanding 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

 

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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 Outstanding 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 Outstanding Principal Amount of the surrendered Security in global form and the aggregate Outstanding 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 canceled by the Trustee.  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.

 

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 13.7 not involving any transfer.

 

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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 15 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 or ( 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.

 

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 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, 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 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 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, a replacement Registered Security of the same series and Outstanding Principal Amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

 

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 issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be

 

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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 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.

 

Section 3.7.           Payment of Interest; Interest Rights Preserved .  (a)  Unless otherwise provided as contemplated by Section 3.1, and subject to the solvency condition set forth in Section 4.3, 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 12.2; 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 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 Outstanding 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.

 

(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 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

 

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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 (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.

 

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

 

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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 to the Trustee for cancellation.  The Registrar and any Paying Agent shall forward to the Trustee any Securities surrendered to them for replacement, for registration of transfer, or for exchange or payment.  The Trustee shall cancel all Securities surrendered for replacement, for registration of transfer, or for exchange, payment, redemption or cancellation and may destroy canceled Securities 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 consisting 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, payment of the principal of, interest, if any, and other amounts, if any, on any Registered Security of such series will be made in the currency or currencies or currency unit or units in which such Registered Security 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 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

 

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

 

(d)           If a Foreign Currency 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 and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency or such other currency unit occurring

 

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after the last date on which such Foreign Currency or such other currency unit was used (the “ Foreign Currency 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 Foreign Currency 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 Foreign Currency 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 Exchange Rate Agent by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Foreign Currency 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

 

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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 Foreign Currency Conversion Date, was a component currency of the relevant currency unit.

 

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 member states of the European Union that have adopted or adopt the single currency in accordance with the Treaty establishing the European Community, as amended.

 

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 interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination Outstanding 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.

 

Foreign Currency 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.

 

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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 Foreign Currency Conversion Date.  If after the Foreign Currency 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 Foreign Currency 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

 

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currency, and such amount shall thereafter be a Specified Amount and such single currency shall thereafter be a Component Currency.  If after the Foreign Currency 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 Foreign Currency Conversion Date of the relevant currency unit, a Foreign Currency 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 Foreign Currency 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 Foreign Currency 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 Foreign Currency Conversion Date.  In the event the Company so determines that a Foreign Currency 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 Foreign Currency Conversion Date and the Specified Amount of each Component Currency on the Foreign Currency 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

 

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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 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 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

 

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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

 

STATUS OF THE SECURITIES

 

Section 4.1.           Acknowledgements .  Each Holder of Securities (including each holder of beneficial interests in a Security in global form) by its purchase or holding of a Security is deemed to acknowledge that:

 

(a)           the Company intends that the Securities constitute Tier 2 Capital and be able to absorb losses at the point of non-viability as described in the Prudential Standards;

 

(b)           the Company’s obligations in respect of the Securities are subordinated pursuant to Section 4.2 of this Indenture; and

 

(c)           the Securities are subject to Conversion or Write-off pursuant to Articles V and VI.  There are two methods of loss absorption:

 

(i)            Conversion, subject to possible Write-off pursuant to Section 5.2 of this Indenture; or

 

(ii)           Write-off without Conversion pursuant to Section 5.2 of this Indenture.

 

Unless an indenture supplemental hereto for the Securities of any series specifies otherwise, the primary method of loss absorption will be Conversion, subject to possible Write-off pursuant to Section 5.2 of this Indenture.

 

Section 4.2.           Status and Subordination .  (a) Holders of Securities do not have any right to prove in a Winding-Up in respect of Securities, except pursuant to Section 4.4 of this Indenture.

 

(b)           Securities constitute direct and unsecured subordinated obligations of the Company and will rank for payment in a Winding-Up pursuant to Section 4.4 of this Indenture.

 

(c)           Securities will not constitute protected accounts or deposit liabilities of the Company in Australia for the purposes of the Australian Banking Act.

 

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Section 4.3.           Solvency Condition .  Prior to a Winding-Up:

 

(a)           the obligation of the Company to make any payment of principal or interest in respect of Securities shall be conditional upon the Company being Solvent at the time the payment or other amount owing becomes due; and

 

(b)           no payment of principal or interest shall be made in respect of Securities except to the extent that the Company may make such payment and still be Solvent immediately thereafter.

 

A certificate as to whether the Company is Solvent signed by two authorized signatories of the Company or, if the Company is in Winding-Up, the liquidator, shall, in the absence of fraud or manifest or proven error, be conclusive evidence of the information contained in such certificate.  In the absence of such a certificate, a Holder of Securities shall be entitled to assume (unless the contrary is proved) that the Company is, and will after any payment as aforesaid, be Solvent.

 

Until Securities have been Converted or Written-off:

 

(i)            interest will continue to accrue on any principal not paid as a consequence of the provisions of this Section 4.3 at the Interest Rate; and

 

(ii)           any interest not paid to a Holder of Securities as a consequence of the provisions of this Section 4.3 shall remain due and payable and shall accumulate with compounding.

 

Any amount not paid as a consequence of the provisions of this Section 4.3:  (x) shall remain a debt owing to the Holder of Securities by the Company until it is paid and shall be payable on the first date on which the provisions of paragraphs (a) and (b) of this Section 4.3 would allow payment of such amount (whether or not such date is otherwise a date on which interest is payable or other date on which such amount becomes due); and (y) shall not constitute an Event of Default.

 

Section 4.4.           Winding-Up .  In a Winding-Up (a) neither the Trustee nor any Holder of Securities shall have any right or claim against the Company in respect of the principal of or interest on Securities, to the extent any such Securities have been Converted or Written-off; and

 

(b)           the rights and claims of the Trustee or any Holder of Securities against the Company to recover any principal or interest in respect of Securities that have not been Converted or Written-off:

 

(i)            shall be subordinate to, and rank junior in right of payment to, the obligations of the Company to Senior Creditors and all such obligations to Senior

 

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Creditors shall be entitled to be paid in full before any payment shall be paid on account of any sums payable in respect of such Securities;

 

(ii)           shall rank equally with the obligations of the Company to the Holders of other Securities that have not been Converted or Written-off (or that have been partially Converted or Written-off), and the obligations of the Company to holders of Equal Ranking Instruments; and

 

(iii)          shall rank prior to, and senior in right of payment to, the obligations of the Company to holders of Ordinary Shares, and other Junior Ranking Capital Instruments.

 

Unless and until Senior Creditors have been paid in full, neither the Trustee nor any Holder of Securities will be entitled to claim in the Winding-Up in competition with Senior Creditors so as to diminish any payment which, but for that claim, Senior Creditors would have been entitled to receive.

 

In a Winding-Up, the Trustee and any Holder of Securities will only be entitled to prove for any sums payable in respect of the Securities as a liability which is subject to prior payment in full of Senior Creditors.  Holders of Securities waive in respect of any Security, to the fullest extent permitted by law, any right to prove in a Winding-Up as a creditor ranking for payment in any other manner.

 

However, it is unlikely a Winding-Up of the Company will occur without a Non-Viability Trigger Event having occurred first and the Securities being Converted or Written-off.  In that event:

 

·                                           if the Securities have Converted into Ordinary Shares, holders will rank equally with existing holders of Ordinary Shares; and

 

·                                           if the Securities are Written-off, all rights in relation to the Securities will be terminated, and holders will not have their Outstanding Principal Amount repaid or receive any outstanding interest or accrued interest, or have the right to have the Subordinated Debt Securities Converted into Ordinary Shares.  In such an event, a Holder’s investment in the Securities will lose all of its value and such Holder will not receive any compensation.

 

Section 4.5.           No Set-Off .  Neither the Company nor the Trustee or any Holder of Securities is entitled to set-off any amounts due in respect of Securities held by the Holder against any amount of any nature owed by the Company to such Holder or by such Holder to the Company.

 

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Section 4.6.           Clawback .  Each Holder of Securities (including each holder of beneficial interests in a Security in global form) by its purchase or holding of a Security is deemed to have irrevocably acknowledged and agreed that it or the Trustee will pay or deliver to the liquidator any payment or asset, whether voluntary or in any other circumstances, received by such Holder or the Trustee from or on account of the Company (including by way of credit, set-off or otherwise) or from any liquidator (or any provisional or other liquidator, receiver, manager or statutory manager of the Company) in violation of Section 4.2 or Article VIII of this Indenture.

 

Section 4.7.           Other Provisions .  Each Holder of Securities (including each holder of beneficial interests in a Security in global form) by its purchase or holding of a Security is deemed to have irrevocably acknowledged and agreed:

 

(a)           that the provisions of Section 4.2 of this Indenture constitute a debt subordination for the purposes of section 563C of the Australian Corporations Act;

 

(b)           without limiting its rights existing otherwise than as a Holder of a Security, that it must not exercise its voting rights as an unsecured creditor in the Winding-Up of the Company to defeat, negate or in any way challenge the enforceability of the subordination provisions of Section 4.2 of this Indenture; and

 

(c)           that the debt subordination effected by the provisions of Section 4.2 of this Indenture are not affected by any act or omission of the Company or a Senior Creditor which might otherwise affect it at law or in equity.

 

No consent of any Senior Creditor shall be required for any amendment of the provisions of Section 4.2 of this Indenture in relation to any Outstanding Securities.

 

ARTICLE V

 

NON-VIABILITY, CONVERSION AND WRITE-OFF

 

Section 5.1.           Non-Viability Trigger Event .  (a) If a Non-Viability Trigger Event occurs, the Company must:

 

(i)            subject to the limitations of Section 5.3 of this Indenture, Convert; or

 

(ii)           if an indenture supplemental hereto for the Securities of any series specifies that the primary method of loss absorption will be Write-off without Conversion pursuant to Section 5.3 of this Indenture, Write-off,

 

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all Securities or, if paragraph (a) of the definition of “Non-Viability Trigger Event” applies, subject to the provisions of Section 5.1(b) of this Indenture, all or some Securities (or a percentage of the Outstanding Principal Amount of each Security), such that the aggregate Outstanding Principal Amount of all Securities Converted or Written-off, together with the face value or outstanding principal amount of all other Relevant Securities converted, written-off or written-down pursuant to Section 5.1(b) of this Indenture, is equal to the aggregate face value or outstanding principal amount of Relevant Securities which APRA has notified the Company must be converted, written-off or written-down (or, if APRA has not so notified the Company, all or some Securities (or a percentage of the Outstanding Principal Amount of each Security), as is necessary to satisfy APRA that the Company will no longer be non-viable).

 

(b)                                  In determining the Securities or percentage of the Outstanding Principal Amount of each Security which must be Converted or Written-off pursuant to this Section 5.1, the Company will:

 

(i)                                      first, convert, write-off or write-down an amount of the face value or outstanding principal amount of all outstanding Relevant Tier 1 Securities before Conversion or Write-off of the Securities; and

 

(ii)                                   second, if conversion, write-off or write-down of Relevant Tier 1 Securities is not sufficient to satisfy APRA that the Company would not become non-viable, Convert or Write-off (in the case of the Securities) and convert, write-off or write-down (in the case of any other Relevant Tier 2 Securities), on a pro-rata basis or in a manner that is otherwise, in the Company’s opinion, fair and reasonable, the Outstanding Principal Amount of each Security and outstanding principal amount of all other Relevant Tier 2 Securities (subject to such adjustments as the Company may determine to take into account the effect on marketable parcels and the need to round to whole numbers of Ordinary Shares, the authorized denominations of any Relevant Tier 2 Securities remaining on issue, and the need to effect the conversion immediately).  If the Specified Currency of the principal amount of such Relevant Tier 2 Securities is not Australian Dollars, the Company may for purposes of determining the amount of the principal amount to be converted, written-off or written-down, convert the principal amount to Australian Dollars at such rate of exchange as the Company in good faith considers reasonable,

 

but such determination will not impede the immediate Conversion or Write-off of the relevant Securities or percentage of the Outstanding Principal Amount of each Security (as the case may be).

 

(c)                                   If a Non-Viability Trigger Event occurs:

 

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(i)                                      the Securities or the percentage of the Outstanding Principal Amount of each Security determined pursuant to Sections 5.1(a) and (b) of this Indenture shall be Converted or Written-off immediately upon the occurrence of the Non-Viability Trigger Event pursuant to Sections 5.2 and Article VI of this Indenture.  The Conversion or Write-off will be irrevocable;

 

(ii)                                   the Company is required to give notice to the Trustee and Holders of affected Securities pursuant to Sections 1.6 and 3.8 of this Indenture and the ASX as soon as practicable that a Non-Viability Trigger Event has occurred and that Conversion or Write-off has occurred on the Non-Viability Trigger Event Date;

 

(iii)                                the notice must specify (A) the date on which Conversion or Write-off occurred (the “ Non-Viability Trigger Event Date ”), and the Securities which were or percentage of the Outstanding Principal Amount of each Security which was Converted or, if subject to Section 5.3 of this Indenture, Written-off, and (B) details of the Relevant Securities converted, written-off or written-down pursuant to Section 5.1(b) of this Indenture; and

 

(iv)                               in the case of Conversion, the notice must specify the details of the Conversion process, including any details which were taken into account in relation to the effect on marketable parcels and whole numbers of Ordinary Shares, and the impact on any Securities outstanding.

 

The Company’s failure to undertake any steps pursuant to Sections 5.1(c)(ii) to (iv) of this Indenture will not prevent, invalidate, delay or otherwise impede Conversion or Write-off.

 

Section 5.2.                                  Automatic Conversion or Write-off upon the Occurrence of a Non-Viability Trigger Event .  If a Non-Viability Trigger Event has occurred and all or some Securities are (or a percentage of the Outstanding Principal Amount of each Security is) required to be Converted or Written-off pursuant to Section 5.1 of this Indenture, then:

 

(a)                                  Conversion or Write-off of such Securities or percentage of the Outstanding Principal Amount of each Security will occur pursuant to Section 5.1 of this Indenture and, if applicable, Section 5.3 of this Indenture immediately upon the Non-Viability Trigger Event Date;

 

(b)                                  in the case of Conversion and subject to the provisions of Section 6.10 of this Indenture, each Holder of a Security that has been Converted in whole or in part pursuant to Section 5.1 of this Indenture will be entitled to (i) the Conversion Number of Ordinary Shares in respect of such Securities or the percentage of the Outstanding Principal Amount of each Security held by such

 

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Holder so Converted determined pursuant to Section 6.1 of this Indenture, and (ii) unless the Securities shall have been Converted or Written-off in full, to Securities with an Outstanding Principal Amount equal to the aggregate of the remaining percentage of the Outstanding Principal Amount of each Security held by such Holder, and the Company shall recognize the Holder as having been issued the Conversion Number of Ordinary Shares in respect of such portion of Converted Securities for all purposes, in each case without the need for any further act or step by the Company, the Holder or any other person (and the Company shall, as soon as possible thereafter and without delay on its part, take any appropriate procedural steps to effect such Conversion, including updating the Ordinary Share register); and

 

(c)                                   a Holder of Securities has no further right or claim in respect of such Securities or percentage of the Outstanding Principal Amount of each Security so Converted or Written-off (including to payments of interest or accrued interest, and the repayment of principal), except such Holder’s entitlement, if any, to Securities which have not been required to be Converted or Written-off or Securities representing the Outstanding Principal Amount of such Securities which have not been required to be Converted or Written-off and, in the case of Conversion, subject to the provisions of Section 6.10 of this Indenture, to the Conversion Number of Ordinary Shares issuable pursuant to Article VI.

 

Section 5.3.                                  No Further Rights .  If (a) for any reason, Conversion of a Security (or a percentage of the Outstanding Principal Amount of each Security) required to be Converted under the provisions of Section 5.1 of this Indenture does not occur within five ASX Business Days after the Non-Viability Trigger Event Date; or

 

(b)                                  an indenture supplemental hereto for the Securities of any series specifies that the primary method of loss absorption will be Write-off without Conversion in accordance with the provisions of Section 5.3 of this Indenture,

 

then:

 

(c)                                   the relevant rights and claims of Holders of Securities in relation to such Securities or the percentage of the Outstanding Principal Amount of such Securities to be Converted or Written-off (including to payments of interest or accrued interest, and the repayment of principal and, in the case of Conversion, to be issued with the Conversion Number of Ordinary Shares in respect of such Securities or percentage of the Outstanding Principal Amount of each Security), are immediately and irrevocably written-off and terminated with effect on and from the Non-Viability Trigger Event Date (“ Write-off ”; “ Written-off ” shall have a corresponding meaning); and

 

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(d)                                  the Outstanding Principal Amount of such Securities shall be reduced on the Non-Viability Trigger Event Date by the Outstanding Principal Amount of the Securities to be Converted or Written-off, as determined in accordance with the provisions of Sections 5.1(a) and (b) of this Indenture and any accrued and unpaid interest shall be correspondingly reduced.

 

Section 5.4.                                  Consent to Receive Ordinary Shares and Other Acknowledgements .  Subject to any Write-off required in accordance with the provisions of Section 5.3 of this Indenture, each Holder of Securities (including each holder of beneficial interests in a Security in global form) by its purchase or holding thereof shall be deemed to have irrevocably agreed that:

 

(a)                                  upon Conversion in accordance with the provisions of this Article V and Article VI of this Indenture, it consents to becoming a holder of Ordinary Shares and agrees to be bound by the constitution of the Company;

 

(b)                                  unless (x) it has given notice in accordance with the provisions of Section 6.10 of this Indenture that it does not wish to receive Ordinary Shares as a result of Conversion or (y) it is a Foreign Holder and the Company is not satisfied that the laws of both the Commonwealth of Australia and the Foreign Holder’s country of residence permit the unconditional issue of Ordinary Shares to the Foreign Holder (but as to which the Company is not bound to enquire and any decision is in its sole discretion) or has not otherwise satisfied the requirements of Section 6.10 of this Indenture to receive Ordinary Shares, it is obliged to accept Ordinary Shares upon Conversion notwithstanding anything that might otherwise affect a Conversion of Securities, including:

 

(i)                                      any change in the financial position of the Company since the issue of the Securities;

 

(ii)                                   any disruption to the market or potential market for Ordinary Shares or capital markets generally; or

 

(iii)                                any breach by the Company of any obligation in connection with the Securities;

 

(c)

 

(i)                                      Conversion is not subject to any conditions other than those expressly set forth in this Article V and Article VI of this Indenture;

 

(ii)                                   Conversion must occur immediately on the Non-Viability Trigger Event Date and Conversion may result in disruption or failures in trading or dealings in the Securities;

 

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(iii)                                it will not have any rights to vote in respect of any Conversion (whether as a Holder of a Security or as a prospective holder of an Ordinary Share); and

 

(iv)                               notwithstanding the provisions of Section 6.9 of this Indenture, Ordinary Shares issued on Conversion may not be quoted at the time of Conversion or at all;

 

(d)                                  where the provisions of Section 5.3 of this Indenture apply, no other conditions or events will affect the operation of such provisions and it will not have any rights to vote in respect of any Write-off under such provisions; and

 

(e)                                   it has no remedies on account of the failure of the Company to issue Ordinary Shares in accordance with the provisions of Section 6 of this Indenture other than, subject to the provisions of Section 5.3 of this Indenture, to seek specific performance of the Company’s obligation to issue Ordinary Shares.

 

Section 5.5.                                  Issue of Ordinary Shares of Successor Company .  If the Company shall cease to be the ultimate parent company of the Group and the successor company is an Approved Successor, the provisions of this Indenture may be amended in accordance with the provisions of Section 6.14 of this Indenture.

 

Section 5.6.                                  No Conversion at the Option of the Holders .  Holders of Securities do not have a right to request Conversion of their Securities at any time.

 

Section 5.7.                                  No Rights before Conversion .  Before Conversion, a Security confers no rights on a Holder of Securities:

 

(a)                                  to vote at, or receive notices of, any meeting of shareholders (referred to as “members” under the Company’s constitution) of the Company;

 

(b)                                  to subscribe for new securities or to participate in any bonus issues of securities of the Company; or

 

(c)                                   to otherwise participate in the profits or property of the Company,

 

except as otherwise provided herein or in an indenture supplemental hereto for the Securities of any series.

 

Section 5.8.                                  Trustee’s Rights upon Conversion or Write-off .

 

(a)                                  By its acquisition of the Securities, each Holder of the Securities (including each holder of beneficial interests in a Security in global form), to the extent permitted by law, waives any and all claims against the Trustee for, agrees

 

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not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the Conversion or Write-off of the Securities other than for the Trustee’s gross negligence or willful misconduct.

 

(b)                                  Holders of the Securities that acquire such Securities in the secondary market (including each holder of beneficial interests in a Security in global form) shall be deemed to acknowledge, agree to be bound by and consent to the same provisions specified herein to the same extent as the Holders of the Securities that acquire the Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by and consent to the terms of the Securities, including in relation to the Conversion and Write-off of the Securities.

 

(c)                                   The Company’s obligation to indemnify and reimburse the Trustee under this Indenture shall survive Conversion and Write-off of the Securities.

 

(d)                                  Unless otherwise required by APRA, the parties hereto hereby agree that they will not amend, change or modify the rights, immunities, indemnities and protections of the Trustee relating to the Conversion and Write-off of the Securities without the Trustee’s written consent and that any such amendment, change or modification will be made in an amendment or supplement to this Indenture.

 

(e)                                   By its acquisition of the Securities, each Holder of the Securities (including each holder of beneficial interests in a Security in global form) acknowledges and agrees that, upon Conversion or Write-off of the Securities, (a) the Trustee shall not be required to take any further directions from such Holder of the Securities (or holder of beneficial interests in a Security in global form) either under the terms of the Securities or this Indenture unless secured or indemnified to its satisfaction by such Holder of the Securities (or holder of beneficial interests in a Security in global form), (b) it may not direct the Trustee to take any action whatsoever, including without limitation, any challenge to the Conversion or Write-off of the Securities or request to call a meeting or take any other action under the Indenture in connection with the Conversion or Write-off of the Securities unless secured or indemnified to its satisfaction by such Holder of the Securities (or holder of beneficial interests in a Security in global form) and (c) neither this Indenture nor the Securities shall impose any duties upon the Trustee whatsoever with respect to the Conversion or Write-off of the Securities. Notwithstanding the foregoing, if, following the Conversion or Write-off of the Securities, any Securities remain outstanding, then the Trustee’s duties under this Indenture shall remain applicable with respect to the remaining Outstanding Securities which have not been so Converted or Written-off.

 

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ARTICLE VI

 

PROCEDURES FOR CONVERSION

 

Section 6.1.                                  Conversion .  On the Non-Viability Trigger Event Date, subject to the provisions of Section 5.3 and Section 6.10 of this Indenture, the following provisions will apply.

 

(a)                                  The Company will allot and issue to each Holder of a Security the Conversion Number of Ordinary Shares for each Security.  The Conversion Number is, subject always to the Conversion Number being no greater than the Maximum Conversion Number, either (x) the number specified in, or determined in accordance with the relevant provisions in, an indenture supplemental hereto for the Securities of any series or, (y) if no Conversion Number and no such provisions are specified in any such indenture supplemental hereto, calculated according to the following formula:

 

 

 

Outstanding Principal Amount of the

 

 

Security (translated into Australian Dollars

 

 

in accordance with paragraph (b) of the

Conversion Number for each

=

definition of Outstanding Principal Amount

Security

where the calculation date shall be the Non-

 

 

Viability Trigger Event Date)

 

 

P x VWAP

 

 

where:

 

Outstanding Principal Amount has the meaning given to it in Section 1.1 of this Indenture, as adjusted in accordance with Section 6.13 of this Indenture.

 

P means the number specified in any indenture supplemental hereto.

 

VWAP means the VWAP during the VWAP Period.

 

Maximum Conversion Number means a number calculated according to the following formula:

 

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Outstanding Principal Amount of the

 

 

Security (translated into Australian Dollars

 

 

in accordance with paragraph (b) of the

Maximum Conversion

=

definition of Outstanding Principal Amount

Number

where the calculation date shall be the ASX

 

 

Business Day prior to the issue date of the

 

 

Securities of a series)

 

 

0.20 x Issue Date VWAP

 

 

where:

 

Outstanding Principal Amount has the meaning given to it in Section 1.1 of this Indenture, as adjusted in accordance with Section 6.13 of this Indenture.

 

If any Securities are Converted following a Non-Viability Trigger Event, it is likely that the Maximum Conversion Number will apply and limit the number of Ordinary Shares to be issued. In this case, the value of the Ordinary Shares received is likely to be significantly less than the Outstanding Principal Amount of those Securities.  The Australian dollar may depreciate in value against the U.S. dollar by the time of Conversion.  In that case, the Maximum Conversion Number is more likely to apply.

 

(b)                                  Subject to the provisions of Section 6.10 of this Indenture, the rights of each Holder of Securities in relation to each Security that is being Converted as determined in accordance with Sections 5.1(a) and (b) will be immediately and irrevocably written-off and terminated for an amount equal to the Outstanding Principal Amount of such Security to be Converted as determined in accordance with Section 5.1 of this Indenture and the Company will apply such Outstanding Principal Amount of each such Security to be so Converted to subscribe for the Ordinary Shares to be allotted and issued under Section 6.1(a).  Each Holder of a Security shall be deemed to have irrevocably directed that any amount payable under the provisions of this Section 6.1 is to be applied in accordance with this Section 6.1 without delay (notwithstanding any other terms and conditions described in this Indenture providing for payments to be delayed) and Holders do not have any right to payment in any other manner.

 

(c)                                   Any calculation under Section 6.1(a) shall, unless the context requires otherwise, be rounded to four decimal places provided that if the total number of Ordinary Shares to be allotted and issued to a Holder of Securities in respect of such Holder’s aggregate holding of Securities includes a fraction of an

 

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Ordinary Share, that fraction of an Ordinary Share will not be issued or delivered on Conversion.

 

Section 6.2.                                  Adjustments to VWAP Generally .  For the purposes of calculating VWAP under the provisions of Section 6.1 of this Indenture:

 

(a)                                  where, on some or all of the ASX Business Days in the relevant VWAP Period, Ordinary Shares have been quoted on ASX as cum dividend or cum any other distribution or entitlement and Securities shall be Converted into Ordinary Shares after that date and those Ordinary Shares will no longer carry that dividend or that other distribution or entitlement, then the VWAP on the ASX Business Days on which those Ordinary Shares have been quoted cum dividend or cum any other distribution or entitlement shall be reduced by an amount (the “ Cum Value ”), equal to:

 

(i)                                      in the case of a dividend or other distribution, the amount of that dividend or other distribution including, if the dividend or distribution is franked, the amount that would be included in the assessable income of a recipient of the dividend or distribution who is a natural person resident in Australia under the Tax Legislation;

 

(ii)                                   in the case of any entitlement that is not a dividend or other distribution for which adjustment is made under the provisions of Section 6.2(a)(i) of this Indenture which is traded on the ASX on any of those ASX Business Days, the volume weighted average price of all such entitlements sold on ASX during the VWAP Period on the ASX Business Days on which those entitlements were traded (excluding trades of the kind that would be excluded in determining VWAP under the definition of that term); or

 

(iii)                                in the case of other entitlements for which adjustment is not made under the provisions of Sections 6.2(a)(i) or (ii) of this Indenture, the value of the entitlement as reasonably determined by the Company; and

 

(b)                                  where, on some or all of the ASX Business Days in the VWAP Period, Ordinary Shares have been quoted as ex dividend or ex any other distribution or entitlement, and Securities will be Converted into Ordinary Shares which would be entitled to receive the relevant dividend, distribution or entitlement, the VWAP on the ASX Business Days on which those Ordinary Shares have been quoted ex dividend or ex any other distribution or entitlement will be increased by the Cum Value.

 

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Section 6.3.                                  Adjustments to VWAP for Capital Reconstruction .  (a) Where during the relevant VWAP Period there is a change to the number of Ordinary Shares on issue because the Ordinary Shares are reconstructed, consolidated, divided or reclassified (in a manner not involving any cash payment or the giving of another form of consideration to or by holders of Ordinary Shares) (a “ Reclassification ”), into a lesser or greater number, the daily VWAP for each day in the VWAP Period which falls before the date on which trading in Ordinary Shares is conducted on a post Reclassification basis will be adjusted by multiplying such daily VWAP by the following formula:

 

A

 

B

 

 

where:

 

A means the aggregate number of Ordinary Shares immediately before the Reclassification; and

 

B means the aggregate number of Ordinary Shares immediately after the Reclassification.

 

(b)                                  Any adjustment made by the Company in accordance with the provisions of Section 6.3(a) of this Indenture will be effective and binding on Holders of Securities.

 

Section 6.4.                                  Adjustments to Issue Date VWAP Generally .  For the purposes of determining the Issue Date VWAP pursuant to Section 6.1 of this Indenture, adjustments will be made pursuant to Sections 6.2 and 6.3 of this Indenture during the VWAP Period for the Issue Date VWAP.  On and from the issue date of the Securities of a series, adjustments to the Issue Date VWAP:

 

(a)                                  may be made by the Company in accordance with the provisions of Sections 6.5 and 6.6, and 6.7 of this Indenture; and

 

(b)                                  if so made, will be effective and binding on Holders.

 

Section 6.5.                                  Adjustments to Issue Date VWAP for Bonus Issues .  (a)  Subject to the provisions of Sections 6.5(b) and 6.5(c) of this Indenture, if the Company makes a pro-rata bonus issue of Ordinary Shares to holders of Ordinary Shares generally (in a manner not involving any cash payment or the giving of another form of consideration to or by holders of Ordinary Shares), the Issue Date VWAP will be adjusted immediately in accordance with the following formula:

 

V = Vo x RD / (RD +RN)

 

where:

 

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V means the Issue Date VWAP applying immediately after the application of this formula;

 

Vo means the Issue Date VWAP applying immediately prior to the application of this formula;

 

RD means the number of Ordinary Shares on issue immediately prior to the allotment of new Ordinary Shares pursuant to the bonus issue; and

 

RN means the number of Ordinary Shares issued pursuant to the bonus issue.

 

(b)           The adjustment set forth in Section 6.5(a) of this Indenture does not apply to Ordinary Shares issued as part of a bonus share plan, employee or executive share plan, executive option plan, share top up plan, share purchase plan or a dividend reinvestment plan.

 

(c)                                   For the purposes of this Section 6.5, an issue will be regarded as a bonus issue notwithstanding that the Company does not make offers to some or all holders of Ordinary Shares with registered addresses outside Australia, provided that in so doing the Company is not in contravention of the ASX Listing Rules.

 

Section 6.6.                                  Adjustments to Issue Date VWAP for Capital Reconstruction .  If at any time after the issue date of the Securities of a series there is a change to the number of Ordinary Shares on issue because of a Reclassification (in a manner not involving any cash payment or the giving of another form of consideration to or by holders of Ordinary Shares) into a lesser or greater number, the Issue Date VWAP will be adjusted by multiplying the Issue Date VWAP applicable on the ASX Business Day immediately before the date of any such Reclassification by the following formula:

 

A

 

B

 

 

where:

 

A means the aggregate number of Ordinary Shares on issue immediately before the Reclassification; and

 

B means the aggregate number of Ordinary Shares on issue immediately after the Reclassification.

 

Section 6.7.                                  No Adjustment to Issue Date VWAP in Certain Circumstances .  Notwithstanding the provisions of Section 6.5 of this Indenture, no adjustment will be made to the Issue Date VWAP where any such adjustment (expressed in Australian dollars

 

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and cents and rounded to the nearest whole cent with A$0.005 being rounded upwards) would be less than one per cent of the Issue Date VWAP then in effect.

 

Section 6.8.                                  Announcement of Adjustment to Issue Date VWAP .  The Company shall notify any adjustment to the Issue Date VWAP made as set forth in this Article VI to ASX and to the Trustee and Holders of Securities pursuant to Sections 1.6 and 3.8 of this Indenture within 10 ASX Business Days of the Company determining the adjustment and the adjustment will be final and binding.

 

Section 6.9.                                  Status and Listing of Ordinary Shares .  (a) Ordinary Shares issued or arising from Conversion will rank equally with, and will have the same rights as, all other fully paid Ordinary Shares provided that the rights attaching to the Ordinary Shares issued or arising from Conversion do not take effect until 5.00 pm (Sydney time) on the Non-Viability Trigger Event Date (or such other time required by APRA).

 

(b)                                  The Company shall use all reasonable endeavors to list the Ordinary Shares issued on Conversion of Securities on ASX.

 

Section 6.10.                           Conversion; receipt of Ordinary Shares; where the Holder of Securities does not wish to receive Ordinary Shares; Holders’ Nominee .

 

(a)                                  Where some or all of the Securities of a series (or a percentage of the Outstanding Principal Amount of a Security) are required to be Converted pursuant to Section 5.1, a Holder of Securities or portion thereof that are subject to Conversion wishing to receive Ordinary Shares must, no later than the Non-Viability Trigger Event Date (or, in the case where Section 6.10(b)(vii) of this Indenture applies, within 30 days of the date on which Ordinary Shares are issued upon such Conversion), have provided to the Company or (if then appointed) the Holders’ Nominee a notice setting out:

 

(i)                                      its name and address (or the name and address of any person in whose name it directs the Ordinary Shares to be issued) for entry into any register of title and receipt of any certificate or holding statement in respect of any Ordinary Shares;

 

(ii)                                   the security account details of such Holder of Securities in the Clearing House Electronic Subregister System of Australia, operated by the ASX or its affiliates or successors (“ CHESS ”), or such other account to which the Ordinary Shares may be credited; and

 

(iii)                                such other information as is reasonably requested by the Company for the purposes of enabling it to issue Ordinary Shares to the Holder of Securities.

 

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The Company shall have no duty to seek or obtain from any such Holder of Securities any of the information required to be submitted pursuant to this Section 6.10(a).

 

(b)                                  If a Security or a portion thereof is required to be Converted and:

 

(i)                                      the Holder of the Security has notified the Company that it does not wish to receive Ordinary Shares as a result of the Conversion (whether entirely or to the extent specified in the notice), which notice may be given at any time on or after the issue date of the Securities of a series and no less than 15 business days prior to the Non-Viability Trigger Event Date;

 

(ii)                                   the Security is held by a Foreign Holder;

 

(iii)                                the Holder of that Security is a Clearing System Holder;

 

(iv)                               for any reason (whether or not due to the fault of the Holder of the Security) the Company has not received the information required by Section 6.10(a) of this Indenture prior to the Non-Viability Trigger Event Date and the lack of such information would prevent the Company from issuing the Ordinary Shares to the Holder of the Security on the Non-Viability Trigger Event Date; or

 

(v)                                  a FATCA Withholding is required to be made in respect of the Ordinary Shares issued upon Conversion,

 

then, on the Non-Viability Trigger Event Date:

 

(vi)                               where Sections 6.10(b)(i) or 6.10(b)(ii) of this Indenture apply, the Company shall issue the Ordinary Shares to the Holder of the Security only to the extent (if at all) that:

 

(A)                                where Section 6.10(b)(i) of this Indenture applies, the Holder of the Security has subsequently notified the Company that it wishes to receive them (provided that the Company shall have no obligation to comply with any notification received after the Non-Viability Trigger Event Date); and

 

(B)                                where Section 6.10(b)(ii) of this Indenture applies, the Company is satisfied that the laws of both the Commonwealth of Australia and the Foreign Holder’s country of residence permit the unconditional issue of

 

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Ordinary Shares to the Foreign Holder (but as to which the Company is not bound to enquire and any decision is in its sole discretion),

 

and to the extent the Company is not required to issue Ordinary Shares directly to the Holder of the Security, the Company will issue the balance of the Ordinary Shares to the Holders’ Nominee in accordance with Section 6.10(b)(vii) of this Indenture;

 

(vii)                            otherwise, subject to applicable law, the Company will issue the balance of Ordinary Shares in respect of the Holder of the Security to a competent nominee (which may not be the Company or any of its Related Entities) (the “ Holders’ Nominee ”) and will promptly notify such Holder of the Security of the name of and contact information for the Holders’ Nominee and the number of Ordinary Shares issued to the Holders’ Nominee on its behalf and, subject to applicable law and:

 

(A)                                subject to Section 6.10(b)(vii)(B) of this Indenture, the Holders’ Nominee will as soon as reasonably possible and no later than 35 days after issue of the Ordinary Shares sell those Ordinary Shares and pay a cash amount equal to the net proceeds received, after deducting any applicable brokerage fees, stamp duty and other taxes (including, without limitation, FATCA Withholding) and charges, to the Holder of the Security, in each case arising in connection with the issuance or sale of such Ordinary Shares, and each Holders’ Nominee shall use the proceeds from such sale to pay any such fees, duties, taxes, charges and any FATCA Withholding arising in connection with such issuance or sale; and

 

(B)                                where Sections 6.10(b)(iii) or 6.10(b)(iv) of this Indenture apply, the Holders’ Nominee will hold such Ordinary Shares and will transfer Ordinary Shares to such Holder of the Securities (or, where Section 6.10(b)(iii) of this Indenture applies, the person for whom the Clearing System Holder holds the Securities) promptly after such person provides the Holders’ Nominee with the information required to be provided by such Holder of the Securities (as if a reference to the Company is a reference to the Holders’ Nominee and a reference to the issue of Ordinary Shares is a reference to the transfer of Ordinary Shares) but only

 

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where such information is provided to the Holders’ Nominee within 30 days of the date on which Ordinary Shares are issued to the Holders’ Nominee upon Conversion of such Securities and, where such Holder of the Securities fails to provide the Holders’ Nominee with the information required to be provided by such Holder of the Securities, the Holders’ Nominee will sell the Ordinary Shares and pay the proceeds to such person in accordance with Section 6.10(b)(vii)(A) of this Indenture;

 

(viii)                         nothing in this Section 6.10(b) shall affect the Conversion of the Securities of a Holder of the Securities who is not a person to which any of Sections 6.10(b)(i) to 6.10(b)(v) of this Indenture (inclusive) described in this Section 6.10 applies; and

 

(ix)                               for the purpose of this Section 6.10(b), neither the Company nor the Holders’ Nominee shall owe any obligations or duties to the Holders of Securities in relation to the price at which Ordinary Shares are sold or shall have any liability for any loss suffered by a Holder of the Securities as a result of the sale of Ordinary Shares.

 

(c)                                   Subject to Section 5.3, if, in respect of a Conversion of Securities where Section 6.10(b)(vii) of this Indenture applies, the Company fails to issue the Conversion Number of Ordinary Shares in respect of the Securities or percentage of the relevant Outstanding Principal Amount of such Securities on the Non-Viability Trigger Event Date to any Holders’ Nominee, a Holder of Securities has no further right or claim in respect of such Securities or the relevant portion thereof that is subject to Conversion except such Holder’s entitlement to the Ordinary Shares issued upon Conversion to the Holders’ Nominee and to receive the Ordinary Shares or the proceeds from their sale pursuant to Section 6.10(b) of this Indenture, and such Holder has no remedies on account of the Company’s failure to issue Ordinary Shares other than as is provided in Section 5.4(e) of this Indenture.  For the avoidance of doubt, if in respect of a Conversion of Securities where Section 6.10(b)(vii) applies, a Write-off occurs under Section 5.3, a Holder of Securities has no further right or claim in respect of such Securities or the relevant portion thereof that is subject to Conversion (including that such Holder has no entitlement to Ordinary Shares nor any right to seek specific performance of the Company’s obligation to issue Ordinary Shares as is provided in Section 5.4(e) above).

 

Section 6.11.                           Conversion or Write-off if Amounts Not Paid .  Conversion or Write-off may occur even if an amount shall not have been paid to a Holder of Securities

 

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due to the Company’s inability to satisfy the solvency condition of Section 4.3 of this Indenture.

 

Section 6.12.                           Conversion or Write-off After Winding-Up Commences .  If an order is made by a court, or an effective resolution is passed, for a Winding-Up, and a Non-Viability Trigger Event occurs, then Conversion or Write-off shall occur (subject to the provisions of Section 5.3 of this Indenture) in accordance with the provisions of Sections 5.1 and 5.2 of this Indenture.

 

Section 6.13.                           Conversion or Write-off of a Percentage of Outstanding Principal Amount .  If in accordance with the provisions of Section 5.1 of this Indenture, a percentage of the Outstanding Principal Amount of each Security of a series is required to be Converted or Written-off upon the occurrence of a Non-Viability Trigger Event, then this Article VI will apply to the Conversion or Write-off as if references to the Outstanding Principal Amount of each Security were references to the relevant percentage of the Outstanding Principal Amount of each Security to be Converted or Written-off.

 

Section 6.14.                           Amendment of Terms and Conditions Relating to Conversion for Approved Successor .  (a) If:

 

(i)                                      it is proposed that the Company be replaced as the ultimate parent company of the Group by an Approved Successor (the “ Replacement ”); and

 

(ii)                                   the Approved Successor agrees to expressly assume, by supplemental indenture to this Indenture, the Company’s obligations in respect of the Securities for the benefit of Holders of Securities under which it agrees (among other things):

 

(A)                                to deliver fully paid ordinary shares in the capital of the Approved Successor (the “ Approved Successor Shares ”), under all circumstances when the Company would have otherwise been obliged to deliver Ordinary Shares on a Conversion, subject to the same terms and conditions set forth in this Indenture, as amended in accordance with the provisions of this Section 6.14; and

 

(B)                                to use all reasonable endeavors and furnish all such documents, information and undertakings as may be reasonably necessary in order to procure quotation of the Approved Successor Shares issued under the terms and conditions of this Indenture on the stock exchanges on which the other Approved Successor Shares are quoted at the time of a Conversion,

 

the Company may, with APRA’s prior written approval, but without the authority, assent or approval of Holders of Securities, give a notice (an “ Approved

 

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Replacement Notice ”), to Holders of Securities pursuant to Sections 1.6 and 3.8 of this Indenture (which, if given, must be given as soon as practicable before the Replacement and in any event no later than 10 ASX Business Days before the Replacement occurs).

 

(b)                                  An Approved Replacement Notice must specify the amendments to the terms and conditions of the Securities which will be made in accordance with the provisions of this Section 6.14, being those amendments which in the Company’s reasonable opinion are necessary, expedient or appropriate to effect the substitution of the Approved Successor as the debtor in respect of Securities and the issuer of ordinary shares on Conversion (including such amendments as are necessary, expedient or appropriate for the purposes of complying with the provisions of Chapter 2L of the Australian Corporations Act where the Approved Successor is not an authorized deposit-taking institution under the Australian Banking Act) or which are necessary, expedient or convenient in relation to taxes where the Approved Successor is incorporated outside Australia.

 

(c)                                   An Approved Replacement Notice, once given, shall be irrevocable.

 

(d)                                  If the Company gives an Approved Replacement Notice to Holders of Securities in accordance with the provisions of Section 6.14(a) of this Indenture, then with effect on and from the date specified in the Approved Replacement Notice:

 

(i)                                      the Approved Successor shall assume all of the obligations of, and succeed to, and be substituted for, and may exercise every right and power of, the Company in respect of the Securities with the same effect as if the Approved Successor had been the original issuer of the Securities;

 

(ii)                                   the Company (or any corporation which has previously assumed the obligations of the Company) shall be released from its liability in respect of the Securities; and

 

(iii)                                references to the Company herein shall be deemed to be references to the Approved Successor and references to Ordinary Shares herein shall be deemed to be references to Approved Successor Shares.

 

(e)                                   If the Company gives an Approved Replacement Notice in accordance with the provisions of Section 6.14(a) of this Indenture, then each Holder of Securities (including each holder of beneficial interests in a Security in global form) by its purchase and holding of a Security shall be deemed to have irrevocably consented to becoming a member of the Approved Successor in respect of Approved Successor Shares issued on Conversion and to have agreed to be bound by the constitution or other organizational documents of the Approved Successor.

 

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(f)                                    The Company shall not be permitted to issue an Approved Replacement Notice unless:

 

(i)                                      APRA is satisfied that the capital position of the Company on a “Level 1 basis” and “Level 2 basis” in accordance with the Prudential Standards shall not be adversely affected by the Replacement; or

 

(ii)                                   the Approved Successor or another entity which is not a Related Entity of the Company (other than an entity which is a direct or indirect parent entity of the Company) and is approved by APRA subscribes for Ordinary Shares or other capital instruments acceptable to APRA in such amount as may be necessary, or take other steps acceptable to APRA to ensure that the capital position of the Company on a “Level 1 basis” and “Level 2 basis” in accordance with the Prudential Standards shall not be adversely affected by the Replacement, including, if required by APRA or the Prudential Standards, undertaking any capital injection in relation to the Company to replace the Securities.

 

Any capital injection carried out pursuant to the provisions of Section 6.14(f)(ii) of this Indenture must:

 

(A)                                be unconditional;

 

(B)                                occur simultaneously with the substitution of the Approved Successor; and

 

(C)                                be of equal or better quality capital and at least the same amount as the Securities, unless otherwise approved by APRA in writing.

 

The foregoing provisions of this Section 6.14 shall not prevent the Company from proposing, or limit, any scheme of arrangement or other similar proposal that may be put to Holders of Securities or the Company’s members.

 

Section 6.15.                           Power of Attorney .  By holding a Security, each such Holder is deemed to irrevocably appoint each of the Company, its directors or authorized signatories and any of the Company’s liquidators or administrators (each an Attorney) severally to be the attorney of such Holder with power in the name and on behalf of such Holder to sign all documents and transfers and do any other thing as may in the Attorney’s opinion be necessary or desirable to be done in order to give effect to, or for such Holder to observe or perform such Holder’s obligations under, the provisions of Articles V and VI.  Such power of attorney is given for valuable consideration and to secure the performance by such Holder of such Holder’s obligations under the provisions of Articles V and VI and is irrevocable.

 

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Section 6.16.                           Cancellation .  All Securities so Converted shall forthwith be canceled and may not be re-issued or resold.

 

Section 6.17.                           Calculations .  For the avoidance of doubt, any and all calculations relating to the Conversion or Write-off of the Securities and any adjustments thereto shall be performed by, or on behalf of, the Company and the Holders shall direct any questions or concerns regarding such calculations to the Company or Persons performing such calculations or adjustments.

 

ARTICLE VII

 

SATISFACTION AND DISCHARGE

 

Section 7.1.                                  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 the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities when the Company has delivered to the Trustee for cancellation all Securities of, or within, that series.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligation of the Company to the Trustee and any predecessor Trustee under Section 9.8, the obligations of the Company to any Authenticating Agent under Section 9.13, the obligations of the Trustee under the last paragraph of Section 12.3 shall survive.

 

Section 7.2.                                  Repayment to Company .  The Trustee (and any Paying Agent) shall promptly pay to the Company upon Company Request any excess money 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.

 

ARTICLE VIII

 

EVENTS OF DEFAULT, DEFAULTS AND REMEDIES

 

Section 8.1.                                  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 fails to pay (A) any Outstanding Principal Amount in respect of the Securities of the relevant series on the Maturity Date or within seven days thereafter, or (B) any amount of interest in respect of the Securities of

 

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the relevant series on the due date for payment thereof or within fourteen days thereafter, unless, in each case, prior to the commencement of a Winding-Up, the failure to make such payment is the result of the Company not being Solvent on the date such payment is due or the Company would not be Solvent on such date as a result of making such payment; or

 

(2)                                  a Winding-Up.

 

Upon the occurrence of an Event of Default pursuant to (1) above, the sole remedies for the Trustee or, subject to Section 8.6, the Holder of Securities of the relevant series shall be to bring proceedings:

 

·                                           to recover any amount then due and payable but unpaid on such Securities (subject to the Company being able to make the payment and remain Solvent);

 

·                                           to obtain an order for specific performance of any other obligation in respect of such Securities; or

 

·                                           for a Winding-Up.

 

In the event of a Winding-Up pursuant to (2) above, the Securities of the relevant series shall, without any further action on the part of the Trustee or any Holder thereof, become immediately due and payable by the Company, unless they have been Converted or Written-off, and the Trustee or any such Holder may institute proceedings for a Winding-Up and, subject to the limitations set forth in Article IV, prove or claim in such Winding-Up in respect of such Securities.  However, it is unlikely a Winding-Up of the Company will occur without a Non-Viability Trigger Event having occurred first and the Securities being Converted or Written-off.  In that event:

 

·                                           if the Securities have Converted into Ordinary Shares, holders will rank equally with existing holders of Ordinary Shares; and

 

·                                           if the Securities are Written-off, all rights in relation to the Securities will be terminated, and holders will not have their Outstanding Principal Amount repaid or receive any outstanding interest or accrued interest, or have the right to have the Subordinated Debt Securities Converted into Ordinary Shares.  In such an event, a Holder’s investment in the Securities will lose all of its value and such Holder will not receive any compensation.

 

In the event of the occurrence of any Event of Default, no remedy against the Company (including, without limitation, any right to sue for a sum of damages which has

 

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the same economic effect as an acceleration of the Company’s payment obligations) shall be available to the Trustee or any Holder of any Securities for the recovery of amounts owing in respect of the Securities or in respect of any breach by the Company of any obligation, condition or provision binding on it under the terms of the Securities other than as described in an indenture supplemental hereto for the Securities of any series.

 

A Holder of Securities shall have no right to accelerate payment or exercise any other remedies (including any right to sue for damages) as a consequence of any default other than as set forth herein.  In the event of a Winding-Up, the Securities of the relevant series will become immediately due and payable, unless they have been Converted or Written-off.  This shall be the only circumstance in which the payment of principal on Securities of the relevant series may be accelerated.

 

If any Security becomes due and payable as a result of an Event of Default, the Company shall pay such amount as is equal to the Outstanding Principal Amount (or such other amount specified in or determined in accordance with an indenture supplemental hereto for the Securities of any series) together with all accrued but unpaid interest, if any.

 

Section 8.2.                                  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 brought proceedings for the recovery of any overdue principal, 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, subject to the limitations set forth in Section 8.1.  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 9.8.

 

Section 8.3.                                  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

 

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possession of any of the Securities or the production thereof in any proceeding relating thereto.

 

Section 8.4.                                  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 8.5.                                  Control by Majority .  The Holders of at least a majority in aggregate Outstanding Principal Amount of the Securities of each series affected 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 8.6.                                  Limitation on Suits by Holders .  No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture unless:

 

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

 

(2)                                  the Holders of at least 25% in aggregate Outstanding Principal Amount of the 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 Outstanding Principal Amount of the Securities of that series have not given to the Trustee a direction inconsistent with such written request.

 

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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 8.7.                                  Rights of Holders to Receive Payment .   Notwithstanding any other provision of this Indenture, but subject to Sections 8.1, 8.6 and 12.2 and Articles IV, V and VI, the right of any Holder of a Security to receive payment of principal of 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), 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 8.8.                                  Application of Money Collected .  If the Trustee collects any money pursuant to this Article, it shall, subject to the provisions of Articles IV, V and VI, 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 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 9.8;

 

Second :  to Holders of Securities 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 and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal 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 8.8.  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 8.9.                                  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

 

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rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

Section 8.10.                           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 8.11.                           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 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 8.12.                           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, 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 of any series or 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.

 

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ARTICLE IX

 

THE TRUSTEE

 

Section 9.1.                                  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 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 9.1(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 8.5.

 

(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, 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 9.2.                                  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, 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 9.3.                                  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 9.4.                                  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, except that the Trustee represents and warrants that it is duly

 

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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 9.5.                                  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, that, except in the case of a default in payment on the Securities of any 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 interests of the Holders of Securities of that series.  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 9.6.                                  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, as provided in Section 313(d) of the Trust Indenture Act.  The Company will promptly notify the Trustee when the Securities are listed on any stock exchange and of any delisting thereof.

 

Section 9.7.                                  Security Holder Lists .  The Trustee shall, in compliance with Section 312(a) of the Trust Indenture Act, 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.

 

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Section 9.8.                                  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 of and interest on particular Securities.

 

(e)                                   When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 8.1, 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 or the earlier resignation or removal of the Trustee.

 

Section 9.9.                                  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 9.10.

 

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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 9.10 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 Outstanding Principal Amount of the 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 9.10 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 9.11 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

 

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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 9.10.  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 Outstanding Principal Amount of the 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 9.10, 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 9.10, 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 9.10.                           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 9.8 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

 

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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 9.11.                           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.

 

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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 or acting in such other specified capacity under ( i ) the Senior Indenture, dated as of July 1, 1999, between the Company and The Bank of New York Mellon, as trustee, as amended ( ii ) 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; (iii) the Amended and Restated Fiscal Agency Agreement, dated as of November 18, 2008, between the Company and The Bank of New York Mellon, as fiscal agent, as amended; and (iv) the Issuing and Paying Agency Agreement, dated as of September 29, 1989, between the Company and The Bank of New York Mellon (as successor to JPMorgan Chase Bank), as amended.

 

Section 9.12.                           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 9.13.                           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

 

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

 

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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 Bank of New York Mellon, as Trustee

 

 

 

By

 

 

 

as Authenticating Agent

 

 

 

 

 

By

 

 

 

Authorized Signature

 

Section 9.14.                           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 X

 

CONSOLIDATION, MERGER OR SALE BY THE COMPANY

 

Section 10.1.                           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 expressly assumes by supplemental indenture delivered to the Trustee all the obligations of the Company under the Securities 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 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

 

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Company hereunder and under the Securities and all such obligations of the Company shall terminate.  Notwithstanding the above, nothing herein will prevent the Company from consolidating with or merging into any other person or conveying, transferring or leasing its properties and assets substantially as an entirety to any person, or from permitting any person to consolidate with or merge into the Company or to convey, transfer or lease its properties and assets substantially as an entirety to the Company where such consolidation, merger, transfer or lease is:

 

·                   required by APRA (or any statutory manager or similar official appointed by it) under law and prudential regulation applicable in the Commonwealth of Australia (including, without limitation, the Australian Banking Act or the Financial Sector Transfer (Business Transfer and Group Restructure) Act 1999 of Australia, which terms, as used herein, include any amendments thereto, rules thereunder and any successor laws, amendments and rules)); or

 

·                   determined by the board of directors of the Company or by APRA (or any statutory manager or similar official appointed by it) to be necessary in order for the Company to be managed in a sound and prudent manner or for the Company or APRA (or any statutory manager or similar official appointed by it) to resolve any financial difficulties affecting the Company, in each case in accordance with prudential regulation applicable in the Commonwealth of Australia.

 

ARTICLE XI

 

SUPPLEMENTAL INDENTURES

 

Section 11.1.                           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

 

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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 to or change any of the provisions of this Indenture or any Securities to such extent as shall be necessary to facilitate the issuance of Securities in global form, or to alter the terms of the Securities to align them with any Relevant Tier 2 securities issued after the date of such Securities, provided that such alteration is not materially prejudicial to the interests of the Holders of the Securities as a whole; or

 

(4)                                  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

 

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

 

(6)                                  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 pdf or email; or

 

(7)                                  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 IX; or

 

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

 

(9)                                  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

 

(10)                           to modify the provisions of Article IV (except, with respect to any Outstanding Securities of any series, to the extent prohibited by Section 11.2(6)); or

 

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(11)                           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 APRA, a Supplemental Indenture under this Section may not make any change to the Indenture or any supplemental indenture that may affect the eligibility of any Outstanding Securities of any series to continue to qualify as Tier 2 capital.

 

Section 11.2.                           With Consent of Holders .  With the written consent of the Holders of not less than a majority of the aggregate Outstanding Principal Amount of the 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 APRA, a Supplemental Indenture under this Section may not make any change to the Indenture or any supplemental indenture that may affect the eligibility of any Outstanding Securities of any series to continue to qualify as 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 Outstanding Principal Amount of, or any installment of principal of or interest on, any Security, provided that the Stated Maturity for the Securities may not be earlier than the fifth anniversary of the issue date of such series of Securities, or reduce the Outstanding Principal Amount thereof or the rate of interest thereon payable upon the redemption thereof, or change the coin or currency in which any Security 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 of Outstanding Principal Amount of the 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) 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 12.2;

 

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(4)                                  except to the extent provided in Section 11.1(8), make any change in Sections 8.4 or 8.7 or this Section 11.2 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;

 

(5)                                  modify any Conversion or Write-off provision; or

 

(6)                                  modify the provisions of Article IV of this Indenture with respect to the subordination of Outstanding Securities of any series in a manner adverse to the Holders thereof.

 

In addition, no amendment to the terms and conditions of a Security that at the time of such amendment qualifies as Tier 2 Capital is permitted without the prior written consent of APRA if such amendment may affect the eligibility of the Security as Tier 2 Capital as described in the Prudential Standards.

 

Any such consent given by the Holder of a Security of a series shall be conclusive and binding upon such Holder and all future Holders of the Securities of such series and of any Securities of such series issued on registration thereof, the transfer thereof or in exchange therefor or in lieu thereof, whether or not notation of such consent is made upon the Securities of such series.

 

For the purposes of this Section 11.2, 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 Outstanding Principal Amount of the Securities of any series pursuant to this Section 11.2, 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 showing that the conditions precedent to the right of the Company to do so have occurred.

 

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It is not necessary under this Section 11.2 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 11.3.                           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 11.4.                           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 11.5.                           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 shall be bound thereby; provided that if such supplemental indenture makes any of the changes in clauses (1) through (5) of the first proviso to Section 11.2 of this Indenture, 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 11.6.                           Reference in Securities to Supplemental Indentures .  Securities 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 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 of such series.

 

ARTICLE XII

 

COVENANTS

 

Section 12.1.                           Payment of Principal and Interest .  The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and

 

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punctually pay the principal of and interest on the Securities of that series in accordance with the terms of the Securities of such series and this Indenture.  An installment of principal 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 12.2.                           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.   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.

 

Subject to the preceding paragraphs, the Company may also from time to time designate one or more other offices or agencies where the Securities 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  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 12.3.                           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 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 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:

 

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(1)                                  hold all sums held by it for the payment of the principal of 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 of 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 or interest or other amounts on any Security of any series and remaining unclaimed for two years after such principal 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 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 12.4.                           Corporate Existence .  Subject to Article X, 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 12.4 shall prevent the abandonment or termination of any right or franchise of the

 

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Company if, in the opinion of the Company, such abandonment or termination is in the best interests of the Company.

 

Section 12.5.                           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 12.6.                           Reports by the Company .  The Company covenants, as provided in Section 314 of the Trust Indenture Act:

 

(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 12.6, as may be required by rules and regulations prescribed from time to time by the Commission.

 

Section 12.7.                           Annual Review Certificate .  As provided in Section 314(a)(4) of the Trust Indenture Act, 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

 

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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 12.7, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.

 

Section 12.8.                           Withholding Tax and Payment of Additional Amounts .  (a)  The Company will pay all amounts that it is required to pay in respect of the Securities without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges imposed or levied by or on behalf of the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein, unless such withholding or deduction is required by law.  In that event, the Company will pay such additional amounts as may be necessary so that the net amount received by the Holder of the Security, after such withholding or deduction, will equal the amount that the Holder would have received in respect of the Security without such withholding or deduction; provided that the Company will pay no additional amounts in respect of the Security for or on account of:

 

(1)                                  any tax, duty, assessment or other governmental charge that would not have been imposed but for the fact that the Holder, or the beneficial owner, of the Security was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein or otherwise had some connection with the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein other than merely holding such Security or receiving payments under such Security;

 

(2)                                  any tax, duty, assessment or other governmental charge that would not have been imposed but for the fact that the Holder of the Security presented such Security for payment in the Commonwealth of Australia, unless the Holder was required to present such Security for payment and it could not have been presented for payment anywhere else;

 

(3)                                  any tax, duty, assessment or other governmental charge that would not have been imposed but for the fact that the Holder of the Security presented such Security for payment more than 30 days after the date such payment became due and was provided for, whichever is later, except to the extent that the Holder would have been entitled to the additional amounts on presenting such Security for payment on any day during that 30 day period;

 

(4)                                  any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or other governmental charge;

 

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(5)                                  any tax, duty, assessment or other governmental charge which is payable otherwise than by withholding or deduction;

 

(6)                                  any tax, duty, assessment or other governmental charge that would not have been imposed if the Holder, or the beneficial owner, of the Security complied with the Company’s request to provide information concerning his, her or its nationality, residence or identity or to make a declaration, claim or filing or satisfy any requirement for information or reporting that is required to establish the eligibility of the Holder, or the beneficial owner, of such Security to receive the relevant payment without (or at a reduced rate of) withholding or deduction for or on account of any such tax, duty, assessment or other governmental charge;

 

(7)                                  any tax, duty, assessment or other governmental charge that would not have been imposed but for the Holder, or the beneficial owner, of the Security being an associate of the Company’s for purposes of Section 128F of the Australian Tax Act (other than in the capacity of a clearing house, paying agent, custodian, funds manager or responsible entity of a registered scheme under the Australian Corporations Act);

 

(8)                                  any tax, duty, assessment or other governmental charge that is imposed or withheld as a consequence of a determination having been made under Part IVA of the Australian Tax Act (or any modification thereof or provision substituted therefor) by the Australian Commissioner of Taxation that such tax, duty, assessment or other governmental charge is payable in circumstances where the Holder, or the beneficial owner, of such Security is a party to or participated in a scheme to avoid such tax which the Company was not a party to;

 

(9)                                  any tax, duty, assessment or other governmental charge to, or to a third party on behalf of, a Holder of the Security, or any beneficial owner of any interest in, or rights in respect of, such Securities, upon, with respect to, or by reason of, such person being issued Ordinary Shares;

 

(10)                           any tax, duty, assessment or other governmental charge arising under or in connection with FATCA; or

 

(11)                           any combination of the foregoing.

 

(b)                                  Subject to the foregoing, additional amounts will also not be payable by the Company with respect to any payment on any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that payment would, under the laws of the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein, be treated as being derived or received for tax purposes by a beneficiary or settler of that fiduciary or member of that

 

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partnership or a beneficial owner, in each case, who would not have been entitled to those additional amounts had it been the actual Holder of such Security.

 

(c)                                   If, as a result of the Company’s consolidation or merger with or into an entity 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 Australia or the sale, conveyance or transfer by the Company of all or substantially all its assets to such an entity, such an entity assumes the obligations of the Company, such entity will pay additional amounts on the same basis, except that references to “the Commonwealth of Australia” (other than in Section 12.8(a)(7)) will be treated as references to both the Commonwealth of Australia and the country in which such entity is organized or resident (or deemed resident for tax purposes).

 

(d)                                  The Company, and any other Person to or through which any payment with respect to the Securities may be made, shall be entitled to withhold or deduct from any payment with respect to such Securities amounts required to be withheld or deducted under or in connection with FATCA, and Holders and beneficial owners of such Securities shall not be entitled to receive any gross up or other additional amounts on account of any such withholding or deduction.

 

(e)                                   All references in this Indenture to the payment of the principal of or interest on any Security shall be deemed to include the payment of additional amounts to the extent that, in that context, additional amounts are, were or would be payable under this Section 12.8.

 

Section 12.9.                           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 12.10.                    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 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

 

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order as aforesaid.  The term “spot rate of exchange” shall include any costs of exchange payable in connection with the purchase of, or conversion into, the Specified Currency.

 

Section 12.11.                    Waiver of Certain Covenants .  Company may omit in any particular instance to comply with any term, provision or condition set forth in Section 12.4 and 12.9 with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in Outstanding Principal Amount  of the 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 XIII

 

REDEMPTION

 

Section 13.1.                           Applicability of Article .  Securities 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 in accordance with this Article.

 

If an indenture supplemental hereto for the Securities of any series provides that the Securities of such series may be redeemed at the Company’s election (subject to APRA’s prior written approval, which may or not be given), unless otherwise provided in such indenture supplemental hereto, the Company may redeem the Securities of such series in whole or in part, and such redemption shall not be permitted earlier than the fifth anniversary of the issue date of the Securities of such series.

 

The Company may redeem Securities of a series only if the Company has received the prior written approval of APRA (approval is at the discretion of APRA and may or may not be given), and:

 

(a)                                  before or concurrently with the redemption, the Company replaces the Securities of such series with a capital instrument which is of the same or better quality (for the purposes of the Prudential Standards) than the Securities of such series and the replacement of the Securities of such series is done under conditions that are sustainable for the income capacity of the Company (for the purposes of the Prudential Standards); or

 

(b)                                  the Company obtains confirmation from APRA that APRA is satisfied, having regard to the capital position of the Company and the Group, that the Company does not have to replace the Securities of such series.

 

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Section 13.2.                           Election to Redeem; Notice to Trustee .  The election of the Company to redeem any Securities 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 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 Outstanding 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 13.3.                           Selection of Securities to Be Redeemed .  Unless otherwise specified as contemplated by Section 3.1, if less than all the Securities 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 of that series or any integral multiple thereof) of the Outstanding Principal Amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.  In the case of Securities in global form, such Securities will be selected for redemption in accordance with the procedures of the Depositary.  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 Outstanding Principal Amount thereof to be redeemed.

 

For purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the Outstanding Principal Amount of such Securities that has been or is to be redeemed.

 

Section 13.4.                           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;

 

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(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 Outstanding 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 Outstanding Principal Amount thereof remaining unredeemed;

 

(5)                                  the Place or Places of Payment where such Securities maturing after the Redemption Date, are to be surrendered for payment for the Redemption Price;

 

(6)                                  that Securities of the series called for redemption 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; and

 

(8)                                  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 13.5.                           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, segregate and hold in trust as provided in Section 12.3) 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 accrued but unpaid interest to, but excluding, the Redemption Date on, all Securities or portions thereof which are to be redeemed on that date.

 

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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 13.6.                           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.  Except as provided in the next succeeding paragraph, upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued but unpaid interest to, but excluding, the Redemption Date.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the Outstanding Principal Amount shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

Section 13.7.                           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 Outstanding Principal Amount to the unredeemed portion of the Outstanding Principal Amount of the Security surrendered.

 

Section 13.8.                           Redemption for Taxation or Regulatory Reasons .  Subject to the provisions of this Article XIII, the Company may redeem the Securities of a series in whole, but not in part, upon the occurrence of an Adverse Tax Event or a Regulatory Event, provided that the Company has obtained, in the case of an Adverse Tax Event, a supporting opinion of legal or tax advisers of recognized standing in Australia (or, if a Relevant Transaction occurs and the home jurisdiction for tax purposes of such other entity is not Australia, legal or tax advisers of recognized standing in such other jurisdiction) or, in the case of a Regulatory Event, a supporting opinion of advisers of recognized standing in Australia or confirmation from APRA.  The Redemption Price for the Securities of a series redeemed in accordance with this Section 13.8 shall equal 100% of the Outstanding Principal Amount of the Securities of such series plus accrued but unpaid interest to, but excluding, the Redemption Date.

 

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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/ Sean Crellin

 

 

Name:

Sean Crellin

 

 

Title:

Director — Corporate, Legal and

 

 

 

Secretariat

 

 

 

 

 

 

 

 

THE BANK OF NEW YORK MELLON, as Trustee

 

 

 

 

 

 

By:

/s/ Laurence J. O’Brien

 

 

Name:

Laurence J. O’Brien

 

 

Title:

Vice President

 

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Exhibit 4.20

 

 

 

SEVENTEENTH SUPPLEMENTAL INDENTURE

 

between

 

WESTPAC BANKING CORPORATION

 

and

 

THE BANK OF NEW YORK MELLON

 

as Trustee

 

Dated as of November 9, 2016

 



 

SEVENTEENTH SUPPLEMENTAL INDENTURE

 

SEVENTEENTH SUPPLEMENTAL INDENTURE , dated as of November 9, 2016 (the “Seventeenth Supplemental Indenture”), between WESTPAC BANKING CORPORATION (ABN 33 007 457 141), a company incorporated in the Commonwealth of Australia under the Corporations Act 2001 of Australia and registered in New South Wales (the “Company”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as trustee (the “Trustee”).

 

RECITALS:

 

WHEREAS, the Company and The Chase Manhattan Bank are parties to a Senior Indenture, dated as of July 1, 1999 (the “Base Indenture”), relating to the issuance from time to time by the Company of Securities in one or more series as therein provided;

 

WHEREAS, the Trustee has succeeded The Chase Manhattan Bank as trustee under the Base Indenture;

 

WHEREAS, the Company and the Trustee entered into the First Supplemental Indenture, dated as of August 27, 2009 (the “First Supplemental Indenture” ), and the Fifth Supplemental Indenture, dated as of August 14, 2012 (the “Fifth Supplemental Indenture”), among other things, to supplement and amend certain provisions of the Base Indenture (the Base Indenture, as supplemented and amended by the First Supplemental Indenture and the Fifth Supplemental Indenture is referred to herein as the “Amended Base Indenture” and the Amended Base Indenture as further supplemented and amended by this Seventeenth Supplemental Indenture, is referred to herein as the “Indenture”);

 

WHEREAS, Section 8.1(5) of the Amended Base Indenture provides that the Company may enter into a supplemental indenture to change or eliminate any of the provisions of the Amended Base 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;

 

WHEREAS, Section 8.1(13) of the Amended Base Indenture provides that the Company may enter into a supplemental indenture to make any other provisions with respect to matters or questions arising under the Amended Base Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any series;

 

WHEREAS, the Company deems it advisable to enter into this Seventeenth Supplemental Indenture for the purpose of amending and supplementing certain provisions of the Amended Base Indenture; and

 

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WHEREAS, all conditions and requirements of the Amended Base Indenture necessary to make this Seventeenth Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto.

 

NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:

 

ARTICLE I
DEFINITIONS

 

Section 1.01                              General Definitions .  For purposes of this Seventeenth Supplemental Indenture:

 

(a)                                  Capitalized terms used herein without definition shall have the meanings specified in the Amended Base Indenture;

 

(b)                                  All references to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of the Amended Base Indenture; and

 

(c)                                   The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Seventeenth Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.

 

ARTICLE II

AMENDMENTS TO AMENDED BASE INDENTURE

 

Section 2.01                              Amendment to Section 1.1 .

 

(a)                                  The definition of “Authorized Officer” in Section 1.1(a) of the Amended Base Indenture is hereby amended and restated, with respect to all series of Securities, to read in its entirety as follows:

 

““Authorized Officer” means the Company’s Chairman of the Board, its Managing Director, its Chief Financial Officer, its Deputy Chief Financial Officer, any Group Executive, any General Manager, its Group Treasurer, its Deputy Group Treasurer, its Head of Global Funding, its Head of Structured Funding and Capital, its General Counsel, Treasury & Corporate, its Counsel & Head of Legal, Group Treasury, any Executive Director, Group Treasury, any Director, Group Treasury, any Senior Manager, Group Treasury, its Group Financial Controller, any Senior Vice President or any Vice President or such officers of equivalent status as may be designated from time

 

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to time by the Company, and any other persons duly authorized from time to time by the Company.”

 

(b)                                  The definition of “FATCA” in Section 1.1(a) of the Amended Base Indenture is hereby amended and restated, with respect to all series of Securities issued on or after the date hereof, to read in its entirety as follows:

 

““FATCA” means Section 1471 to 1474 of the U.S. Internal Revenue Code of 1986, as amended, including any regulations or official interpretations issued, agreements (including, without limitation, intergovernmental agreements) entered into or non-U.S. laws enacted with respect thereto.”

 

(c)                                   The definition of “Offshore Associate” in Section 1.1(a) of the Amended Base Indenture is hereby deleted.

 

Section 2.02                              Amendment to Section 7.1 .  Section 7.1 of the Amended Base Indenture is hereby amended, with respect to all series of Securities issued on or after the date hereof, to read in its entirety as follows:

 

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 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 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 .”

 

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Section 2.03                              Amendment to Section 8.1(8) .  Section 8.1(8) of the Amended Base Indenture is hereby amended, with respect to all series of Securities issued on or after the date hereof, to read in its entirety as follows:

 

“(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 pdf or email; or”

 

Section 2.04                              Amendment to Section 9.8 .  Section 9.8 of the Amended Base Indenture is hereby amended and restated, with respect to all series of Securities issued on or after the date hereof, to read in its entirety as follows:

 

Withholding Tax and Payment of Additional Amounts .                                 (a)                                  Unless otherwise specified as contemplated by Section 3.1, the Company will pay all amounts that it is required to pay in respect of the Securities without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges imposed or levied by or on behalf of the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein, unless such withholding or deduction is required by law.  In that event, the Company will pay such additional amounts as may be necessary so that the net amount received by the Holder of the Security, after such withholding or deduction, will equal the amount that the Holder would have received in respect of the Security without such withholding or deduction; provided that the Company will pay no additional amounts in respect of the Security for or on account of:

 

(1)                                  any tax, duty, assessment or other governmental charge that would not have been imposed but for the fact that the Holder, or the beneficial owner, of the Security was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein or otherwise had some connection with the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein other than merely holding such Security or receiving payments under such Security;

 

(2)                                  any tax, duty, assessment or other governmental charge that would not have been imposed but for the fact that the Holder of the Security presented such Security for payment in the Commonwealth of Australia, unless the Holder was required to present such Security for payment and it could not have been presented for payment anywhere else;

 

(3)                                  any tax, duty, assessment or other governmental charge that would not have been imposed but for the fact that the Holder of the Security presented

 

5



 

such Security for payment more than 30 days after the date such payment became due and was provided for, whichever is later, except to the extent that the Holder would have been entitled to the additional amounts on presenting such Security for payment on any day during that 30 day period;

 

(4)                                  any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or other governmental charge;

 

(5)                                  any tax, duty, assessment or other governmental charge which is payable otherwise than by withholding or deduction;

 

(6)                                  any tax, duty, assessment or other governmental charge that would not have been imposed if the Holder, or the beneficial owner, of the Security complied with the Company’s request to provide information concerning his, her

 

or its nationality, residence or identity or to make a declaration, claim or filing or satisfy any requirement for information or reporting that is required to establish the eligibility of the Holder, or the beneficial owner, of such Security to receive the relevant payment without (or at a reduced rate of) withholding or deduction for or on account of any such tax, duty, assessment or other governmental charge;

 

(7)                                  any tax, duty, assessment or other governmental charge that would not have been imposed but for the Holder, or the beneficial owner, of the Security being an associate of the Company’s for purposes of Section 128F of the Australian Tax Act (other than in the capacity of a clearing house, paying agent, custodian, funds manager or responsible entity of a registered scheme under the Australian Corporations Act);

 

(8)                                  any tax, duty, assessment or other governmental charge that is imposed or withheld as a consequence of a determination having been made under Part IVA of the Australian Tax Act (or any modification thereof or provision substituted therefor) by the Australian Commissioner of Taxation that such tax, duty, assessment or other governmental charge is payable in circumstances where the Holder, or the beneficial owner, of such Security is a party to or participated in a scheme to avoid such tax which the Company was not a party to;

 

(9)                                  any tax, duty, assessment or other governmental charge arising under or in connection with FATCA; or

 

(10)                           any combination of the foregoing.

 

(b)                                  Subject to the foregoing, additional amounts will also not be payable by the Company with respect to any payment on any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that payment would, under the laws of the Commonwealth of Australia or any

 

6



 

political subdivision or taxing authority thereof or therein, be treated as being derived or received for tax purposes by a beneficiary or settler of that fiduciary or member of that partnership or a beneficial owner, in each case, who would not have been entitled to those additional amounts had it been the actual Holder of such Security.

 

(c)                                   If, as a result of the Company’s consolidation or merger with or into an entity 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 Australia or the sale, conveyance or transfer by the Company of all or substantially all its assets to such an entity, such an entity assumes the obligations of the Company, such entity will pay additional amounts on the same basis, except that references to “the Commonwealth of Australia” (other than in Section 9.8(a)(7)) will be treated as references to both the Commonwealth of Australia and the country in which such entity is organized or resident (or deemed resident for tax purposes).

 

(d)                                  The Company, and any other Person to or through which any payment with respect to the Securities may be made, shall be entitled to withhold or deduct from any payment with respect to such Securities amounts required to be withheld or deducted under or in connection with FATCA, and Holders and beneficial owners of such Securities shall not be entitled to receive any gross up or other additional amounts on account of any such withholding or deduction.

 

(e)                                   All references in this Indenture to the payment of the principal of, or any premium or interest on, any Security shall be deemed to include the payment of additional amounts to the extent that, in that context, additional amounts are, were or would be payable under this Section 9.8.”

 

ARTICLE III
MISCELLANEOUS

 

Section 3.01                              Integral Part; Effect of Supplement on Indenture .  This Seventeenth Supplemental Indenture constitutes an integral part of the Indenture. Except for the amendments and supplements made by this Seventeenth Supplemental Indenture, the Amended Base Indenture shall remain in full force and effect as executed.

 

Section 3.02                              Adoption, Ratification and Confirmation .  The Indenture, as supplemented by this Seventeenth Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.

 

Section 3.03                              Trustee Not Responsible for Recitals .  The recitals in this Seventeenth Supplemental Indenture shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness.  The Trustee makes no representations as to the validity or adequacy of this Seventeenth Supplemental

 

7



 

Indenture.

 

Section 3.04                              Counterparts .  This Seventeenth Supplemental 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.

 

Section 3.05                              Separability .  In case any provision of this Seventeenth Supplemental Indenture 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 3.06                              Governing Law .  This Seventeenth Supplemental Indenture 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.

 

[signature page follows]

 

8



 

IN WITNESS WHEREOF, the Company and the Trustee have executed this Seventeenth Supplemental Indenture as of the date first above written.

 

 

WESTPAC BANKING CORPORATION

 

 

 

 

 

 

 

By:

/s/ Sean Crellin

 

 

Name:

Sean Crellin

 

 

Title:

Director — Corporate, Legal and

 

 

 

Secretariat

 

 

 

 

THE BANK OF NEW YORK MELLON, as Trustee

 

 

 

 

 

 

 

By:

/s/ Laurence J. O’Brien

 

 

Name:

Laurence J. O’Brien

 

 

Title:

Vice President

 

9




Exhibit 5.1

 

[Letterhead of Debevoise & Plimpton LLP]

 

November 9, 2016

 

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 New York 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 (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Act ”), of Post-Effective Amendment No.1 to its 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 “ Base 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 ”), as supplemented and amended by the First Supplemental Indenture, dated as of August 27, 2009, between the Bank and the Senior Trustee (the “ First Supplemental Indenture ”), and the Fifth Supplemental Indenture, dated as of August 14, 2012, between the Bank and the Senior Trustee (the “ Fifth Supplemental Indenture ”), and as further supplemented and amended by the Seventeenth Supplemental Indenture, dated as of November 9, 2016, between the Bank and the Senior Trustee (collectively with the Base Senior Indenture, the First Supplemental Indenture and the Fifth Supplemental Indenture, the “ Senior Indenture ”), 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 a Second Amended and Restated Subordinated Indenture (the “ Subordinated Indenture ” and, together with the Senior Indenture, the “ Indentures ”), dated as of November 9, 2016, between the Bank and The Bank of New York Mellon (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 and others 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

 

2



 

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, except that we express no opinion as to the provisions of Articles IV, V and VI of the Subordinated Indenture, which are governed by the laws of the State of New South Wales, Australia.

 

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 in equity or at law) and ( iii ) concepts of good faith, reasonableness and fair dealing, and standards of materiality.

 

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 King & Wood Mallesons, the Bank’s Australian counsel, 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 or the rules and regulations of the Commission thereunder.

 

 

Very truly yours,

 

/s/ Debevoise & Plimpton LLP

 

3




Exhibit 5.2

 

GRAPHIC

 

GRAPHIC

 

 

 

 

 

 

 

 

 

9 November 2016

 

Philip Harvey

Partner

T + 61 2 9296 2484

 

Jo Dodd

Partner

T + 61 2 9296 2154

 

To

Westpac Banking Corporation

Westpac Place

275 Kent Street

SYDNEY   NSW   2000

 

 

 

 

Dear Sirs

 

Westpac Banking Corporation ( Bank )

SEC registered shelf for the issuance of Senior Debt Securities and Subordinated Debt Securities (together, the “Debt Securities”)

 

We refer to the filing with the Securities and Exchange Commission (“ SEC ”) under the United States Securities Act 1933, as amended (“ Securities Act ”), of the following documents in respect of which we have acted as your legal advisers in New South Wales (“ NSW ”) and the Commonwealth of Australia (“ Australia ”) (together the “ Relevant Jurisdictions ”):

 

·                                            the Post-Effective Amendment No. 1 to the Registration Statement of the Bank on Form F-3 (File No. 333-207931) dated 9 November 2016 (“ Amended Registration Statement ”); and

 

·                                            the Prospectus dated 9 November 2016 (which forms part of the Amended Registration Statement) (“ Prospectus ”).

 

This opinion relates only to the laws of the Relevant Jurisdictions and is given on the basis that it will be construed in accordance with the laws of NSW.  We express no opinion about the laws of another jurisdiction or (except as expressly provided in paragraph 4) factual matters.

 

1                                           Documents

 

We have examined copies (certified or otherwise identified to our satisfaction) of the following documents:

 

(a)                                   the Registration Statement and the Prospectus and the following documents which are incorporated by reference into the Prospectus:

 

(i)                                       the Form 20-F for the year ended 30 September 2016;

 

(ii)                                    the information contained in Exhibit 1 to the Bank’s report on Form 6-K dated 8 November 2016;

 

 

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GRAPHIC

 

 

 

 

 

 

 

 

Westpac Banking Corporation

 

9 November 2016

 

 

 

 

 

(b)                                  the Senior Indenture dated as of 1 July 1999 between the Bank and The Bank of New York Mellon (“ Trustee ”) as successor to The Chase Manhattan Bank relating to Senior Debt Securities (as supplemented and amended by the First Supplemental Indenture dated 27 August 2009 between the Bank and the Trustee and the Fifth Supplemental Indenture dated 14 August 2012 between the Bank and the Trustee) and the Second Amended and Restated Subordinated Indenture dated as of 9 November 2016 between the Bank and the Trustee relating to Subordinated Debt Securities (together, the “ Indentures ”);

 

(c)                                   the certificate of registration and the constitution (“ Constitution ”) of the Bank; and

 

(d)                                  the resolutions of the board of directors of the Bank and the approvals of officers of the Bank pursuant to those resolutions authorising the filing of the Registration Statement and the Prospectus and the execution and delivery of each Indenture.

 

In this opinion “ laws ” means the common law , principles of equity and laws constituted or evidenced by documents available to the public generally and “ Ordinary Share ” is a reference to an ordinary share in the capital of the Bank into which a Subordinated Debt Security may be required to be converted.

 

2                                           Assumptions

 

We have assumed:

 

(a)                                   the authenticity of all signatures, seals, duty stamps and markings;

 

(b)                                  the completeness, and conformity to originals, of all documents submitted to us;

 

(c)                                   that:

 

(i)                                       all authorisations specified above remain in full force and effect; and

 

(ii)                                  all authorisations required for the Trustee to enter into the Indentures have been obtained and remain in full force and effect;

 

(d)                                  that:

 

(i)                                    any future amendment to an Indenture does not in any way affect the matters opined upon in this opinion;

 

(ii)                                 there has been no breach or repudiation of, or waiver of any rights or obligations under an Indenture; and

 

(iii)                              the Bank and the Trustee remain ready, willing and able to perform their respective obligations under the Indentures;

 

(e)                                   that the Indentures have been executed and delivered by duly authorised signatories and delivered outside Australia in the form which we have examined and that all formalities required under the laws of the place of execution of the Indentures have been complied with by the Bank and the Trustee;

 

 

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Westpac Banking Corporation

 

9 November 2016

 

 

 

 

 

(f)                                     that the Indentures are valid and binding obligations of the Bank and the Trustee under all relevant laws (including the laws of the Relevant Jurisdictions except insofar as they affect the obligations of the Bank);

 

(g)                                  that all the provisions in the Indentures have been, and will be, strictly complied with by the Bank and the Trustee;

 

(h)                                   that:

 

(i)                                     the resolutions of the boards of directors referred to in paragraph 1(d) were properly passed (including that any meeting convened was properly convened);

 

(ii)                                  all directors who participated and voted were entitled so to do;

 

(iii)                               the directors and officers of the Bank granting the approvals referred to in paragraph 1(d) have properly performed their duties; and

 

(iv)                              all provisions relating to the declaration of directors’ interests or the power of interested directors to vote were duly observed,

 

but there is nothing in the searches referred to in paragraph 3 or on the face of the extract of the authorisations referred to in paragraph 1(d) that would lead us to believe otherwise;

 

(i)                                       that, if an obligation is to be performed in a jurisdiction outside Australia, its performance will not be contrary to an official directive, impossible or illegal under the law of that jurisdiction;

 

(j)                                       that neither the Australian Commissioner of Taxation nor any other governmental authority having the power to do so has given nor will give a statutory notice or direction requiring the Bank (or any person on its behalf) to deduct from sums payable by it to a person under the relevant Indenture any taxes or other charges payable by the payee.  It is unlikely that such a notice or direction would be given unless the amount of tax or other charges was in dispute or the payee had failed to pay tax or other charges payable by it;

 

(k)                                   that immediately following execution of the Indentures, the Bank was solvent;

 

(l)                                       that the Trustee is not a related party of the Bank for the purposes of the Corporations Act 2001 of Australia (“ Corporations Act ”); and

 

(m)                               that no person has been, or will be, engaged in conduct that is unconscionable, dishonest or misleading or deceptive or likely to mislead or deceive.

 

We have not taken any steps to verify these assumptions and assume that you do not know or suspect that any of these assumptions is incorrect.

 

3                                           Searches

 

We have examined:

 

(a)                                   an extract of company information for the Bank obtained from Australian Securities and Investments Commission (“ ASIC ”) in Sydney; and

 

 

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GRAPHIC

 

 

 

 

 

 

 

 

Westpac Banking Corporation

 

9 November 2016

 

 

 

 

 

(b)                                  the list of Authorised Deposit-taking Institutions available from the website of the Australian Prudential Regulation Authority (“ APRA ”),

 

in each case as at, respectively, approximately 9.00 am local time on 9 November 2016.

 

These records are not necessarily complete or up to date.  We have not examined documents filed by the Bank with ASIC or APRA nor have we made any other searches.

 

4                                           Opinion

 

On the foregoing basis and subject to the qualifications set out below, we are of the opinion that:

 

(a)                                   the Bank is incorporated and validly existing under the laws of Australia, is capable of suing and being sued in its corporate name and is authorised to carry on banking business under the Banking Act 1959 of Australia (“ Banking Act ”);

 

(b)                                  the Bank has the corporate power and authority to:

 

(i)                                    enter into the Indentures and observe its obligations under them; and

 

(ii)                                    issue the Debt Securities and observe its obligations under them;

 

(c)                                   the Bank has taken all corporate action required on its part to authorise:

 

(i)                                       the filing of the Amended Registration Statement, including the Prospectus, for the issue and sale of the Debt Securities in an unlimited amount; and

 

(ii)                                    the execution, delivery and observance of its obligations under the Indentures and each Indenture has been duly executed and delivered by the Bank; and

 

(d)                                  insofar as the laws of the Relevant Jurisdictions are applicable, the Indentures are legal, valid, binding and (subject to the terms of the relevant Indenture) enforceable obligations of the Bank;

 

(e)                                   under the laws of the Relevant Jurisdictions it is not necessary for the Bank to reserve Ordinary Shares for issuance upon conversion of Subordinated Debt Securities;

 

(f)                                     the Ordinary Shares that may be issued upon conversion of Subordinated Debt Securities will be validly issued and fully paid and, accordingly, the holder of such Ordinary Shares is not by virtue of that holding liable to make any further contribution to pay the Bank’s debts and liabilities; and

 

(g)                                  no ad valorem stamp duty is payable in the Relevant Jurisdictions on the Indentures or in connection with the observance of obligations under them.

 

The expression “ enforceable ” means that the relevant obligations are of a type that the courts in the Relevant Jurisdictions enforce and does not mean that the obligations will necessarily be enforced in all circumstances in accordance with their terms.

 

 

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Westpac Banking Corporation

 

9 November 2016

 

 

 

 

 

5                                           Qualifications

 

This opinion is subject to the following qualifications:

 

(a)                                   the nature and enforcement of obligations may be affected by lapse of time, failure to take action or laws (including, without limitation, laws relating to bankruptcy, insolvency, liquidation, receivership, administration, reorganisation, reconstruction, fraudulent transfer or moratoria), certain equitable remedies and defences generally affecting creditors’ rights;

 

(b)                                  a creditor’s rights may be affected by a specific court order obtained under laws and defences generally affecting creditors’ rights (including, in the case of the Bank, sections 13A and 16 of the Banking Act and section 86 of the Reserve Bank Act 1959 of Australia as described in the Prospectus);

 

(c)                                   the rights of a party to enforce its rights against the Bank may be limited or affected by:

 

(i)                                     breaches by that party of its obligations under the relevant Indenture, or misrepresentations made by it in, or in connection with, the relevant Indenture;

 

(ii)                                  conduct of that party which is unlawful;

 

(iii)                               conduct of that party which gives rise to an estoppel or claim by the Bank; or

 

(iv)                              the Australian Code of Banking Practice if adopted by that party;

 

(d)                                  the availability of certain equitable remedies (including, without limitation, injunctions and specific performance) is at the discretion of a court in the Relevant Jurisdictions;

 

(e)                                   an obligation to pay an amount may be unenforceable if the amount is held to constitute a penalty;

 

(f)                                     a provision that a statement, opinion, determination or other matter is final and conclusive will not necessarily prevent judicial enquiry into the merits of a claim by an aggrieved party;

 

(g)                                  the laws of the Relevant Jurisdictions may require that:

 

(i)                                       parties act reasonably and in good faith in their dealings with each other;

 

(ii)                                    discretions are exercised reasonably; and

 

(iii)                                 opinions are based on good faith;

 

(h)                                   a party entering into an Indenture may, in doing so, be acting, or later be held to have acted, in the capacity of a trustee under an undocumented or partially documented constructive, implied or resulting trust which may have arisen as a consequence of that party’s conduct;

 

(i)                                       the question whether a provision of an Indenture which is invalid or unenforceable may be severed from other provisions is determined at the discretion of a court in the Relevant Jurisdictions;

 

(j)                                       an indemnity for legal costs may be unenforceable;

 

 

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Westpac Banking Corporation

 

9 November 2016

 

 

 

 

 

(k)                                   we express no opinion as to:

 

(i)                                     provisions precluding oral amendments or waivers;

 

(ii)                                  Australian tax law;

 

(iii)                               whether the Bank is or will be complying with, or is or will be required to do or not to do anything by, the prudential standards, prudential regulations or any directions made by APRA or under the Banking Act;

 

(iv)                              the capital treatment of the Subordinated Debt Securities or the Ordinary Shares (in each case, when issued);

 

(v)                                 the accuracy, completeness or suitability of any formula; or

 

(vi)                                any:

 

(A)                                 proposal to introduce or change a law, or any pending change in law;

 

(B)                                 law which has been enacted and has not commenced, or if it has commenced, has not started to apply; or

 

(C)                                 pending judgment, or the possibility of an appeal from a judgment, of any court,

 

or the implications of any of them;

 

(l)                                       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;

 

(m)                               a court will not give effect to a currency indemnity, a choice of laws to govern a document or a submission to the jurisdiction of certain courts if to do so would be contrary to public policy in the Relevant Jurisdictions.  However, we consider it is unlikely that a court in the Relevant Jurisdictions would reach such a conclusion in relation to New York law;

 

(n)                                   under the Banking Act, any other party to a contract to which the Bank is a party may not deny any obligations under that contract, accelerate any debt under that contract or close out any transaction relating to that contract on the grounds that the Bank is subject to a direction by APRA under the Banking Act or an ADI statutory manager (as defined in the Banking Act):

 

(i)                                       is in control of the Bank’s business; or

 

(ii)                                    takes various actions in respect of any shares in the Bank ;

 

(o)                                  a payment made under mistake may be liable to restitution;

 

(p)                                  we express no opinion in respect of the Amended Registration Statement or the Prospectus (and for the avoidance of doubt, including the documents incorporated by reference in those documents) and we have not been, nor are we, responsible for verifying the accuracy of the facts, or the reasonableness of any statements of opinion, contained in those documents, or

 

 

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Westpac Banking Corporation

 

9 November 2016

 

 

 

 

 

that no material facts have been omitted from them.  Furthermore, we express no opinion as to whether the Amended Registration Statement or the Prospectus contain all the information required in order for the issuance, offer and sale of any Debt Securities or Ordinary Shares not to constitute misleading or deceptive conduct within the meaning of the Corporations Act or any analogous prohibited conduct under any other law; and

 

(q)                                  in relation to an issuance of Subordinated Debt Securities:

 

(i)                                       the issue of the Subordinated Debt Securities (and any Ordinary Shares required to be issued on conversion of the Subordinated Debt Securities) requires the approval of the Managing Director and Chief Executive Officer or the Chief Financial Officer of the Bank in accordance with the resolutions of the directors of the Bank passed on 5 March 2014;

 

(ii)                                    in order to issue the Ordinary Shares it is necessary that the Bank at the time of issue does all acts required under its Constitution and the Corporations Act to issue those Ordinary Shares;

 

(iii)                                 an obligation relating to the issue of Ordinary Shares by the Bank may not be able to be observed by the Bank and may not be enforceable against the Bank if performance of the obligation could result in or contribute to a contravention of the listing rules of ASX Limited, the takeover provisions of the Corporations Act, the Foreign Acquisitions and Takeovers Act 1975 of Australia, the Financial Sector (Shareholdings) Act 1998 of Australia, Part IV of the Competition and Consumer Act 2010 of Australia or any other law in force in Australia which limits or restricts the number of shares in an Australian company in which a person may have an interest or over which it may have a right or power; and

 

(iv)                                an obligation relating to the issue of Ordinary Shares may be cancelled, and the Ordinary Shares or rights attaching to them may be varied or cancelled by an ADI Statutory Manager (as defined in the Banking Act) under section 14AA of the Banking Act.

 

We consent to the filing of this opinion as an exhibit to the Amended Registration Statement when filed by the Bank with the SEC, to this opinion being incorporated by reference in the Amended Registration Statement and to the reference to our firm under the heading “Validity of Securities” in the Prospectus.  In giving such consent, we do not thereby concede or admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder.

 

We also consent to Debevoise & Plimpton LLP relying on this opinion for the purpose of the opinion given by them and filed as an exhibit to the Amended Registration Statement.

 

This opinion is strictly limited to the matters stated in it and does not apply by implication to other matters and we have no obligation to update it.

 

This opinion is given in respect of the laws of the Relevant Jurisdictions which are in force at 9.00 am local time on the date of this letter.

 

Yours faithfully

 

/s/ King & Wood Mallesons

 

Page 7




Exhibit 24.2

 

POWER OF ATTORNEY

 

The undersigned does hereby:

 

(i)                                              make, constitute and appoint each of, Philip Coffey, Deputy Chief Executive Officer, Peter King, Chief Financial Officer, Curt Zuber, Group Treasurer, Joanne Dawson, Deputy Group Treasurer, David Lees, Deputy Chief Financial Officer, Christopher Bannister, General Manager Europe and America, Paddy Rennie, General Counsel — Treasury & Corporate, Michael Clayton, Counsel and Head of Legal, Group Treasury and Sean Crellin, Director - Corporate, Legal and Secretariat, acting alone, as his true and lawful attorney-in-fact and agent, with full power to act in his name, place and stead to execute on his behalf, as an officer of Westpac Banking Corporation (the “Bank”), a post-effective amendment, on Form POSASR, to the registration statement of the Bank, on Form F-3, for the registration of the offer and sale, at any time or from time to time, of senior and subordinated debt securities of the Bank, including Tier 2 capital instruments (the “Amendment”), including a prospectus and exhibits to such Amendment, and any and all amendments or supplements to the Amendment, 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 Bank 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 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 7th day of November 2016

 

 

 

 

/s/ David Lees

 

Deputy Chief Financial Officer

David Lees

 

(Principal Accounting Officer)

 




 

Exhibit 25.2

 

 

 

UNITED STATES
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)          
o

 


 

THE BANK OF NEW YORK MELLON

(Exact name of trustee as specified in its charter)

 

New York
(Jurisdiction of incorporation
if not a U.S. national bank)

 

13-5160382
(I.R.S. employer
identification no.)

 

 

 

225 Liberty Street, New York, N.Y.
(Address of principal executive offices)

 

10286
(Zip code)

 


 

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 the Department of Financial Services 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

 

550 17 th  Street, NW
Washington, D.C. 20429

 

 

 

The Clearing House Association L.L.C.

 

100 Broad Street
New York, N.Y. 10004

 

(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. 333-207042).

 

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. 333-188382).

 

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 Woodland Park, and State of New Jersey, on the 7th day of November, 2016.

 

 

THE BANK OF NEW YORK MELLON

 

 

 

By:

/s/ Laurence J. O’Brien

 

 

Name:

Laurence J. O’Brien

 

 

Title:

Vice President

 

4



 

EXHIBIT 7

 

Consolidated Report of Condition of

 

THE BANK OF NEW YORK MELLON

 

of 225 Liberty 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, 2016, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

 

 

 

Dollar amounts in thousands

 

ASSETS

 

 

 

Cash and balances due from depository institutions:

 

 

 

Noninterest-bearing balances and currency and coin

 

5,045,000

 

Interest-bearing balances

 

97,696,000

 

Securities:

 

 

 

Held-to-maturity securities

 

40,504,000

 

Available-for-sale securities

 

72,663,000

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

Federal funds sold in domestic offices

 

5,000

 

Securities purchased under agreements to resell

 

16,902,000

 

Loans and lease financing receivables:

 

 

 

Loans and leases held for sale

 

217,000

 

Loans and leases, net of unearned income

 

35,107,000

 

LESS: Allowance for loan and lease losses

 

137,000

 

Loans and leases, net of unearned income and allowance

 

34,970,000

 

Trading assets

 

5,254,000

 

Premises and fixed assets (including capitalized leases)

 

1,071,000

 

Other real estate owned

 

5,000

 

Investments in unconsolidated subsidiaries and associated companies

 

527,000

 

Direct and indirect investments in real estate ventures

 

0

 

Intangible assets:

 

 

 

Goodwill

 

6,301,000

 

Other intangible assets

 

985,000

 

Other assets

 

16,574,000

 

Total assets

 

298,719,000

 

 



 

LIABILITIES

 

 

 

Deposits:

 

 

 

In domestic offices

 

138,076,000

 

Noninterest-bearing

 

90,728,000

 

Interest-bearing

 

47,348,000

 

In foreign offices, Edge and Agreement subsidiaries, and IBFs

 

114,024,000

 

Noninterest-bearing

 

8,485,000

 

Interest-bearing

 

105,539,000

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

Federal funds purchased in domestic offices

 

224,000

 

Securities sold under agreements to repurchase

 

636,000

 

Trading liabilities

 

5,507,000

 

Other borrowed money:
(includes mortgage indebtedness and obligations under capitalized leases)

 

7,363,000

 

Not applicable

 

 

 

Not applicable

 

 

 

Subordinated notes and debentures

 

515,000

 

Other liabilities

 

8,594,000

 

Total liabilities

 

274,939,000

 

 

 

 

 

EQUITY CAPITAL

 

 

 

Perpetual preferred stock and related surplus

 

0

 

Common stock

 

1,135,000

 

Surplus (exclude all surplus related to preferred stock)

 

10,397,000

 

Retained earnings

 

13,218,000

 

Accumulated other comprehensive income

 

-1,320,000

 

Other equity capital components

 

0

 

Total bank equity capital

 

23,430,000

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

350,000

 

Total equity capital

 

23,780,000

 

Total liabilities and equity capital

 

298,719,000

 

 



 

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

 

Catherine A. Rein

Directors

Joseph J. Echevarria