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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 7, 2017

Registration No. 333-            


SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



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



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

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

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



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



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

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

         If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ý

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

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

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

CALCULATION OF REGISTRATION FEE

       
 
Title of each class of securities
to be registered

  Proposed maximum
aggregate offering
price(1)

  Amount of
registration fee(1)

 

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.

   


PROSPECTUS

LOGO

Westpac Banking Corporation

ABN 33 007 457 141

Securities

Ordinary Shares

        By this prospectus, we (acting through our head office or, with respect to the Securities (as defined herein), any of our branches) 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 Securities will be listed on any securities exchange. The Ordinary Shares are currently listed on the Australian Securities Exchange, which we refer to as ASX, and the New Zealand Exchange, and American Depository Shares representing Ordinary Shares are currently listed on the New York Stock Exchange.

        The Securities issued by Westpac acting through one of its branches are nevertheless obligations of Westpac, and holders of those Securities will have claims against the assets of Westpac pursuant to the terms of the Securities, and are not limited to claims against the assets of the issuing branch.

        The Securities are not protected accounts or deposit liabilities for the purpose of the Banking Act of 1959 of Australia, which we refer to as the Australian Banking Act, or the financial claims scheme established under the Australian Banking Act, which we refer to as the Financial Claims Scheme, are not subject to the depositor protection provisions of the Australian Banking Act, and are not insured by the United States Federal Deposit Insurance Corporation or any other governmental agency or instrumentality, any compensation scheme of the Commonwealth of Australia, the United States or any other jurisdiction or any party.

        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 September 7, 2017.


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TABLE OF CONTENTS

ABOUT THIS PROSPECTUS

 
1

FORWARD-LOOKING STATEMENTS

 
1

WESTPAC BANKING CORPORATION

 
4

USE OF PROCEEDS

 
6

DESCRIPTION OF THE SECURITIES

 
7

DESCRIPTION OF ORDINARY SHARES

 
46

TAXATION

 
48

PLAN OF DISTRIBUTION

 
57

WHERE YOU CAN FIND MORE INFORMATION

 
59

INCORPORATION OF INFORMATION FILED WITH THE SEC

 
59

ENFORCEABILITY OF FOREIGN JUDGMENTS IN AUSTRALIA

 
60

CURRENCY OF PRESENTATION AND EXCHANGE RATES

 
61

VALIDITY OF SECURITIES

 
61

EXPERTS

 
61

LIMITATION ON INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM'S LIABILITY

 
61

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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 "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 Corporations Act 2001 of Australia, 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",

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"would", "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 described in our Annual Report on Form 20-F for the financial year ended September 30, 2016, which we refer to as the 2016 Form 20-F, and our U.S. Interim Financial Results Announcement for the half-year ended March 31, 2017 furnished to the Securities and Exchange Commission on Form 6-K dated May 9, 2017, as applicable, 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 March 31, 2017, we had total assets of A$840 billion. Our market capitalization as of August 31, 2017, was approximately A$106 billion.

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

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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 SECURITIES

         The following discussion describes the general terms and conditions applicable to the Securities that we (acting through our head office or any of our branches) may offer. In addition to these general provisions, in connection with an investment in a particular series of the Securities, investors should review the description of the provisions and any risk factors applicable to that series of the Securities, including those described herein and in any applicable prospectus supplement or term sheet.

        The Securities will be issued under the indenture, dated as of September 7, 2017, between us and The Bank of New York Mellon, as the trustee, which we refer to as the indenture. The indenture provides that there may be more than one trustee, each with respect to one or more series of the Securities.

        Unless the context otherwise requires, references to "we", "us", "our" and "Westpac" in this description of the Securities refer only to the issuer of the Securities, which will be Westpac Banking Corporation ABN 33 007 457 141 or Westpac Banking Corporation acting through one of its branches, and do not include any of its subsidiaries.

        The Securities issued by Westpac acting through one of its branches are nevertheless obligations of Westpac, and holders of those Securities will have claims against the assets of Westpac pursuant to the terms of the Securities, and are not limited to claims against the assets of the issuing branch.

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

        The following description of the terms of the Securities sets forth certain general terms and provisions of the Securities to which any applicable prospectus supplement or term sheet may relate. The particular terms of the 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 Securities will be described in the applicable prospectus supplement or term sheet. Accordingly, for a description of the terms of a particular issue of the 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 Securities have the meanings given to them in Section 4 "—Additional Provisions Applicable to the Securities—Definitions."

Ranking

        The Securities are subordinate and junior in right of payment to Westpac's Senior Creditors in the manner and to the extent described in Section 1.2 "—General—Status and Subordination of the Securities" and Section 1.3 "—General—Ranking in a Winding-Up" under "—Additional Provisions Applicable to the Securities".

        Under Section 13A(3) and 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.

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        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 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 13A(3) 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 Securities are not protected accounts or deposit liabilities for the purpose of the Australian Banking Act or the Financial Claims Scheme, are not subject to the depositor protection provisions of the Australian Banking Act, and are not insured by the United States Federal Deposit Insurance Corporation or any other governmental agency or instrumentality, any compensation scheme of the Commonwealth of Australia, the United States or any other jurisdiction or any party.

General Terms of the Securities

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

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        General information about US and Australian tax considerations is set out under "Taxation." Certain US federal income tax and Australian tax considerations applicable to any series of the Securities due to its particular terms, as well as tax considerations for the jurisdiction of any branch of Westpac outside of Australia if that branch is the issuer of the Securities of that series, will be described in the applicable prospectus supplement or term sheet.

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

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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 indenture.)

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

        Subject to applicable law and the conditions described under " Redemption of the Securities" below, Westpac or any of its affiliates may at any time purchase or repurchase the Securities of any series in any manner and at any price, to the extent permitted by applicable laws and regulations and subject to APRA's prior written approval (which may or may not be given). The Securities of any series purchased by Westpac or any of its affiliates may be held or surrendered by the purchaser of the Securities for cancellation or may be resold.

Global Securities

        Westpac may issue the 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 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 indenture.)

        The specific terms of the depository arrangement with respect to any of the 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 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 Securities or by us if such 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 Securities represented by that global security for all purposes under the indenture. Except as provided below, owners of beneficial interests in a global security will not be entitled to have any of the definitive 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 of the Securities of such series in definitive form and will not be considered the owners or holders thereof under the indenture.

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        Payments of principal of, and interest, if any, on the definitive 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 Securities. None of Westpac, the trustee for the Securities, any paying agent, the registrar or any underwriter or agent for the 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 Securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

        We expect that the depository for a series of the Securities or its nominee, upon receipt of any payment of principal or interest in respect of a permanent global security representing the 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 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 the 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 Securities of that series in exchange for the global security or securities representing that series of the 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 Securities, determine not to have any of the Securities of a series represented by one or more global securities, and, in such event, will issue definitive Securities of that series in exchange for the global security or securities representing that series of the Securities. If definitive Securities are issued, an owner of a beneficial interest in a global security will be entitled to physical delivery of definitive Securities of the series represented by that global security equal in principal amount to that beneficial interest and to have the Securities registered in its name. Definitive 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 indenture provides that Westpac 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 a Relevant Tax Jurisdiction (as defined below), 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 Securities, after such withholding or deduction, will equal the amount that the holder would have received in respect of the Securities without such withholding or deduction. However, as described below, the indenture provides that, under certain circumstances, Westpac will not pay additional amounts.

        The indenture provides that Westpac will not pay additional amounts in respect of the Securities for or on account of:

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        In addition, the indenture provides that additional amounts will also not be payable by Westpac 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 a Relevant Tax Jurisdiction, 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 Securities.

        The term " Relevant Tax Jurisdiction " means Australia or any political subdivision or taxing authority thereof or therein and where Westpac is acting with respect to the Securities through a branch outside Australia, the jurisdiction in which the branch is located or any political subdivision or taxing authority thereof or therein. 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

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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 indenture and the Securities, the term Relevant Tax Jurisdiction shall also include the country in which such entity is organized or resident (or deemed resident for tax purposes) or any political subdivision or taxing authority thereof or therein.

        Westpac, 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.

        (Section 12.8 of the indenture).

Redemption of the Securities

        If the 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 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 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 Securities to be redeemed will be selected by the trustee by such method as it shall deem fair and appropriate. In the case of Securities in global form, such Securities will be selected for redemption in accordance with the procedures of the depository. Notice of such redemption will be mailed to holders of the Securities of such series to their addresses as they appear on the register of the Securities of such series.

        Westpac may redeem the 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:

        Holders should not expect that APRA's approval will be given for any redemption of the Securities.

        No holder of the Securities has the right to request redemption of their Securities at any time.

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

        The indenture provides that if an Adverse Tax Event (as defined below) has occurred, Westpac may, subject to the conditions described below and provided that Westpac has obtained a supporting opinion of legal or tax advisers of recognized standing in the applicable Relevant Tax Jurisdiction, redeem all, but not less than all, of any series of the Securities at a redemption price equal to the

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Outstanding Principal Amount of the Securities to be redeemed plus any unpaid interest on the Outstanding Principal Amount of the Securities of such series for the period from and including the most recent interest payment date to but excluding the date of redemption, except to the extent that Westpac has determined in its absolute discretion not to pay such interest or Westpac is obliged not to pay such interest because another Payment Condition (as defined below) is not satisfied.

        An " Adverse Tax Event " shall, with respect to any of the Securities of a series, mean that, as a result of:

in each case, by any legislative body, court, governmental authority (including, without limitation, a tax authority) or regulatory body in a Relevant Tax Jurisdiction, irrespective of the manner in which such amendment, clarification, change or Administrative Action is made known, which amendment, clarification, change or Administrative Action is effective, or is announced or made known, on or after the issue date and which on the issue date is not expected by Westpac to come into effect, there is a material risk that:

        If, after the issue date, ( A ) as a result of a Branch Change Notice (as defined below), Westpac changes the branch through which it acts in respect of the Securities to another branch of Westpac in a jurisdiction different from the jurisdiction of the branch through which Westpac was acting immediately before such notice, the references to "issue date" in the preceding paragraph shall be deemed to be to the date the Branch Change Notice is given or ( B ) 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 indenture and the Securities (which we refer to as 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 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

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is completed, provided that, the issue date will not be so amended if the location of the branch through which the Securities are issued is unchanged as a result of the Relevant Transaction.

        Westpac may redeem the 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:

        Holders should not expect that APRA's approval will be given for any redemption of the Securities.

        (Sections 13.1 and 13.8 of the indenture.)

        The indenture provides that if a Regulatory Event (as defined below) has occurred, Westpac may, subject to the conditions described 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 the Securities at a redemption price equal to the Outstanding Principal Amount of the Securities to be redeemed plus any unpaid interest on the Outstanding Principal Amount of the Securities of such series for the period from and including the most recent interest payment date to but excluding the date of redemption, except to the extent that Westpac has determined in its absolute discretion not to pay such interest or Westpac is obliged not to pay such interest because another Payment Condition (as defined below) is not satisfied.

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

Westpac is not or will not be entitled to treat all of the Securities as Additional Tier 1 Capital in whole, provided that, in each case, Westpac did not expect at the issue date of the Securities of such series that the matter giving rise to the Regulatory Event would occur.

        Westpac may redeem the 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:

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        Holders should not expect that APRA's approval will be given for any redemption of the Securities.

        (Sections 13.1 and 13.8 of the indenture.)

Other Provisions

        The 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 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 9.1(g) of the indenture.)

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

Modification of the Indenture

        The 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 Securities in order to:

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        In addition, no amendment to the terms and conditions of the indenture or a Security that at the time of such amendment qualifies as Additional Tier 1 Capital is permitted without the prior written consent of APRA if such amendment may affect the eligibility of the Security as Additional Tier 1 Capital as described in the Prudential Standards.

        Subject to receiving APRA's prior written approval, and without the approval of holders of the Securities, Westpac may, by notice to holders of the Securities, which we refer to as a Branch Change Notice, change the branch through which it acts in respect of the Securities to another branch of Westpac in any jurisdiction, including in Australia, with effect from the date specified in the notice. Westpac will not change the branch through which it acts in respect of the Securities to a branch in a jurisdiction where it would be illegal by the laws of that jurisdiction to have the Securities on issue or to perform its obligations in respect of the Securities. A holder of the Securities has no right to require Westpac to change the branch through which it acts in respect of the Securities to another branch of Westpac.

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

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        (Section 11.2 of the indenture.)

        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 such Security.

        In addition, no amendment to the terms and conditions of a Security that at the time of such amendment qualifies as Additional Tier 1 Capital is permitted without the prior written consent of APRA if such amendment may affect the eligibility of the Security as Additional Tier 1 Capital as described in the Prudential Standards.

        Changes to or a waiver of the restrictions on Dividends, Buy Backs and Capital Reductions described in Section 1.6 "—General—Restrictions in the Case of Non-Payment of Interest" below under "—Additional Provisions Applicable to the Securities" may be made if approved by a Special Resolution.

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

Record Dates

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

Notice

        Notices to holders of the 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 Security is registered as the owner thereof for all purposes.

        (Sections 1.6 and 3.8 of the indenture.)

Governing Law

        The indenture and the Securities will 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

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mandatory provisions of law; except that the Trigger Event, Conversion, Write-off and subordination provisions contained in Articles IV (excluding Sections 4.6 and 4.7), V and VI of the indenture and any provisions in the indenture and the Securities which relate to, or define terms used in, such Articles, 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 indenture.)

        The 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 Security or the indenture, Westpac, to the extent permitted by applicable 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 1.11 of the indenture.)

Consolidation, Merger or Sale of Assets

        The 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:

        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 indenture and the Securities and all such obligations of Westpac shall terminate.

        Notwithstanding the above, the terms and conditions of the indenture and the 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:

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        (Section 10.1 of the 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 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 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 indenture.)

Additional Provisions Applicable to the Securities

1.     General

1.1   Acknowledgements

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

        Unless the applicable prospectus supplement or term sheet specifies otherwise, the primary method of loss absorption will be Conversion, subject to possible Write-off as described below in Section 2.2.

        (Section 4.1 of the indenture.)

1.2   Status and Subordination of the Securities

        The indenture provides that:

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        (Section 4.2 of the indenture.).

1.3   Ranking in a Winding-Up

        The indenture provides that, in a Winding-Up in Australia, Securities that have not been Converted or Written-off (or that have been partially Converted or Written-off) will be redeemable at their Outstanding Principal Amount and that:

        Unless and until Senior Creditors have been paid in full, neither the trustee nor any holder of the Securities will be entitled to claim in the Winding-Up in Australia 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 in Australia, the trustee and any holder of Securities that have not been Converted or Written-off (or that have been partially Converted or Written-off) 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 so that the holder receives, for each Security it holds, an amount equal to the amount it would have received if, in the Winding-Up, it had held an issued and fully paid Preference Share. Holders of the Securities waive in respect of any Security, to the fullest extent permitted by law, any right to prove in a Winding-Up in Australia as a creditor of Westpac ranking for payment in any other manner. Holders of the Securities shall not be entitled to place Westpac in administration or to seek the appointment of a receiver, receiver and manager, liquidator or provisional liquidator to Westpac. The trustee and any holder of Securities will have no further or other claim on Westpac in a Winding-Up other than the claim for the Outstanding Principal Amount and interest, if any, as described above, and in the case of the Trustee, its claims under Section 9.8.

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

        (Section 4.4 of the indenture.)

1.4   No Set-Off

        The indenture provides that neither Westpac nor the trustee or any holder of the Securities is entitled to set-off any amounts due in respect of the 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 indenture.)

1.5   Non-Payment of Interest

        Payments of interest on the Securities are within the absolute discretion of Westpac and will be non-cumulative.

        The payment of any interest on the Securities is subject to:

((a) through (d) above, each referred to as a Payment Condition and, collectively, as the Payment Conditions).

        If all or any part of any interest payment is not paid because of this Section 1.5 or because of any applicable law: ( i ) Westpac will have no liability to pay the unpaid amount of interest; ( ii ) neither holders of the Securities nor any other person will have a claim (including, without limitation, in a Winding-Up) or entitlement in respect of such non-payment; ( iii ) such non-payment will not constitute a breach of any conditions in the indenture or the Securities, as described herein or in the applicable prospectus supplement or term sheet; ( iv ) such non-payment will not give any holder of the Securities or any other person a right to apply for a Winding-Up, to place Westpac in administration or to seek the appointment of a receiver, receiver and manager, liquidator or provisional liquidator to Westpac or exercise any remedies in respect of the Securities; and ( v ) such non-payment will not constitute an event of default under the indenture (the indenture does not contain any events of default). Neither holders of the Securities nor any other person shall have any rights to receive any additional interest or compensation as a result of such non-payment and any rights of holders of the Securities to receive interest on the Outstanding Principal Amount of such Securities shall terminate mandatorily and automatically upon Conversion or Write-off as described under Section 2 below.

        (Section 4.6 of the indenture.)

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1.6   Restrictions in the Case of Non-Payment of Interest

        (Section 4.7 of the indenture.)

1.7   Clawback

        The indenture provides that each holder of the Securities 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 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.

        (Section 4.8 of the indenture.)

1.8   Other Provisions

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

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        No consent of any Senior Creditor shall be required for any amendment of the provisions described in Sections 1.2 and 1.3 above in relation to any of the outstanding Securities.

        (Section 4.9 of the indenture.)

2.     Conversion or Write-off of the Securities

2.1   Trigger Events

        The indenture provides that if a Trigger Event occurs, Westpac must:

        A " Trigger Event " means a Capital Trigger Event or a Non-Viability Trigger Event.

        A " Capital Trigger Event " means that:

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

2.2   Conversion or Write-off Following a Trigger Event

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        (Section 5.1 of the indenture.)

2.3   Automatic Conversion or Write-off Upon the Occurrence of a Trigger Event

        The indenture provides that if a Trigger Event has occurred and all or some of the Securities are (or a percentage of the Outstanding Principal Amount of each Security is) required to be Converted or Written-off in accordance with the provisions described in Section 2.2 above, then:

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        (Section 5.2 of the indenture.)

2.4   No Further Rights

        The indenture provides that if:

        then:

        (Section 5.3 of the indenture.)

2.5   Consent to Receive Ordinary Shares and Other Acknowledgments

        The indenture provides that subject to any Write-off required in accordance with the provisions described in Section 2.4 above, each holder of the Securities by its purchase or holding thereof will be deemed to have irrevocably agreed that:

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        (c)

        (Section 5.4 of the indenture.)

2.6   Issue of Ordinary Shares of Successor Company

        The 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 the Securities" may be amended in accordance with the provisions described in Section 3.14 below.

        (Section 5.5 of the indenture.)

2.7   Scheduled Conversion

        Westpac may provide for the scheduled Conversion of the Securities of a series in the applicable prospectus supplement or term sheet for such series, provided always that scheduled Conversion must occur in accordance with the Prudential Standards. For the avoidance of doubt, if the applicable prospectus supplement or term sheet provides for scheduled Conversion, the conditions applying to scheduled Conversion as described and defined in the applicable prospectus supplement or term sheet will not apply to Conversion as a result of a Trigger Event.

        (Section 5.6 of the indenture.)

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2.8   Conversion at the Option of Westpac

        Westpac may provide for the optional Conversion of the Securities of a series in the applicable prospectus supplement or term sheet for such series, provided always that optional Conversion must occur in accordance with the Prudential Standards. For the avoidance of doubt, if the applicable prospectus supplement or term sheet provides for optional Conversion, the restrictions applying to optional Conversion as described and defined in the applicable prospectus supplement or term sheet will not apply to Conversion as a result of a Trigger Event.

        (Section 5.7 of the indenture.)

2.9   No Conversion at the Option of Holders

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

        (Section 5.8 of the indenture.)

2.10 Priority of Early Conversion Obligations

        A Conversion or Write-off required because of a Trigger Event shall take place on the date, and in the manner, described herein or in the applicable prospectus supplement or term sheet, notwithstanding any other provision for Conversion, Write-off or redemption described herein or in the applicable prospectus supplement or term sheet.

        (Section 5.9 of the indenture.)

2.11 No Rights Before Conversion

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

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

        (Section 5.10 of the indenture.)

2.12 Trustee's Rights upon Conversion or Write-off

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3.     Procedures for Conversion

3.1   Conversion

        On the Conversion Date, subject to the provisions described in Section 2.4 above and Section 3.10 below, the following provisions will apply:




Conversion Number for
each Security
 



=
  Outstanding Principal Amount of the Security (translated into
Australian Dollars in accordance with paragraph (b) of the definition
of Outstanding Principal Amount where the calculation date shall be
the Conversion Date)

P × VWAP

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Maximum Conversion Number
 




=
  Outstanding Principal Amount of the 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
Securities of a series)

Relevant Percentage × Issue Date VWAP

3.2   Adjustments to VWAP Generally

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

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3.3   Adjustments to VWAP for Capital Reconstruction

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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 period in which the Issue Date VWAP is determined. On and from the issue date, adjustments to the Issue Date VWAP:

3.5   Adjustments to Issue Date VWAP for Bonus Issues

        The indenture provides that:

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3.6   Adjustments to Issue Date VWAP for Capital Reconstruction

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 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.

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 to the holders of the Securities as described above under "—Notice" within 10 ASX Business Days of Westpac determining the adjustment and the adjustment will be final and binding.

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3.9   Status and Listing of Ordinary Shares

3.10 Conversion; Receipt of Ordinary Shares; Where the Holder of the Securities Does Not Wish to Receive Ordinary Shares; Holders' Nominee

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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 the Securities due to Westpac's inability to satisfy the Payment Conditions described in Section 1.5 above.

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 Trigger Event occurs, then Conversion or Write-off shall occur (subject to the provisions described in Section 2.4 above) in accordance with the provisions described in Sections 2.2 and 2.3 above.

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

        If in accordance with the provisions described in Section 2.2 above, 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 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 Security were

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references to the relevant percentage of the Outstanding Principal Amount of each Security to be Converted or Written-off.

3.14 Amendment of Terms and Conditions Relating to Conversion for Approved Successor

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        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 the Securities or Westpac's members.

3.15 Power of Attorney

        The indenture provides that by holding a 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 of the Securities with power in the name and on behalf of such holder of the Securities 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 of the Securities to observe or perform such holder's obligations under the provisions described in Sections 2 and 3.

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        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 indenture.)

3.16 Cancellation

        The indenture provides that all of the Securities so Converted or Written-off will forthwith be canceled and may not be re-issued or resold.

        (Section 6.16 of the indenture.)

3.17 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, Westpac and the holders shall direct any questions or concerns regarding such calculations to Westpac or such other persons performing such calculations or adjustments. In no event shall the Trustee be required to perform such calculations unless otherwise agreed.

        (Section 6.17 of the indenture.)

4.     Definitions

        In this "Description of the Securities", the following expressions have the following meanings:

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

        " Administrative Action " has the meaning set out in "—Redemption of the Securities—Redemption for Taxation Reasons."

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

        " Approved Replacement Notice " has the meaning set out in Section 3.14(a) of "—Additional Provisions Applicable to the Securities".

        " 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:

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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 Westpac and appointed by Westpac to provide the opinions referred to in paragraphs (e) and (f) of this definition.

        " APRA " means the Australian Prudential Regulation Authority or any authority succeeding to its powers or responsibilities.

        " Approved Successor Share " means a fully paid ordinary share in the capital of the Approved Successor.

        " 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 Banking Act " means the Banking Act 1959 of Australia.

        " Australian Corporations Act " means the Corporations Act 2001 of Australia.

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

        " Australian Tax Act " means the Income Tax Assessment Act 1936 of Australia and the Income Tax Assessment Act 1997 of Australia, or any successor acts.

        " Branch Change Notice " has the meaning set out in "—Modification of the Indenture".

        " Business Day " has the meaning given to it in the applicable prospectus supplement or term sheet.

        " Buy Back " means a transaction involving the acquisition by Westpac of its Ordinary Shares pursuant to the provisions of Part 2J of the Australian Corporations Act.

        " Capital Reduction " means a reduction in capital by Westpac of its Ordinary Shares in any way permitted by the provisions of Part 2J of the Australian Corporations Act.

        " Capital Trigger Event " has the meaning set out in Section 2.1 of "—Additional Provisions Applicable to the Securities".

        " CHESS " has the meaning set out in Section 3.10(a)(ii) of "—Additional Provisions Applicable to the Securities".

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

        " Code " has the meaning set out in "—Payment of Additional Amounts".

        " Common Equity Capital Ratio " means either or both of:

in each case, as prescribed by APRA from time to time.

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

        " Conversion " means the conversion of all or some of the Securities (or a percentage of the Outstanding Principal Amount of each Security) into Ordinary Shares in accordance with the terms of the indenture. " Convert ," " Converting " and " Converted " have corresponding meanings.

        " Conversion Date " means the applicable:

        " Conversion Number " has the meaning set out in Section 3.1(a) of "—Additional Provisions Applicable to the Securities".

        " Cum Value " has the meaning set out in Section 3.2 of "—Additional Provisions Applicable to the Securities".

        " Denomination " has the meaning given in the applicable prospectus supplement or term sheet.

        " Dividend " means any interim, final or special dividend payable in accordance with the Australian Corporations Act and Westpac's Constitution in relation to Ordinary Shares.

        " Equal Ranking Instruments " means:

        " FATCA " has the meaning set out in "—Payment of Additional Amounts".

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

        " Financial Claims Scheme " means the financial claims scheme established under the Australian Banking Act.

        " Foreign Holder " means a holder of the 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 set out in Section 3.10(b)(vii) of "—Additional Provisions Applicable to the Securities".

        " Ineligible Holder " means a holder of Securities that is prohibited or restricted by any applicable law or regulation in force in:

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from being offered, holding or acquiring Ordinary Shares (provided that if the relevant prohibition or restriction only applies to the holder in respect of some of its Securities, it shall only be treated as an Ineligible Holder in respect of those Securities and not in respect of the balance of its Securities).

        " 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 of "—Additional Provisions Applicable to the Securities".

        " Level 1 " and " Level 2 " have the meaning prescribed by APRA in the Prudential Standards.

        " Maximum Conversion Number " has the meaning set out in Section 3.1(a) of "—Additional Provisions Applicable to the Securities".

        " Non-Viability Trigger Event " has the meaning set out in Section 2.1 of "—Additional Provisions Applicable to the Securities".

        " Optional Conversion Date " has the meaning given in the applicable prospectus supplement or term sheet.

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

        " 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:

        " Payment Condition " has the meaning set out in Section 1.5 of "—Additional Provisions Applicable to the Securities".

        " Preference Share " means a notional preference share in the capital of Westpac conferring a claim in a Winding-Up that ranks equally with the Securities and which is equal to the Outstanding Principal Amount of a Security.

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

        " Reclassification " has the meaning set out in Section 3.3(a) of "—Additional Provisions Applicable to the Securities".

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        " Recognized Exchange " means a recognized stock exchange or securities market in an Organization for Economic Cooperation and Development member state.

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

        " Related Entities " means entities over which Westpac or any parent of Westpac exercises control or significant influence, as determined by APRA from time to time.

        " Relevant Securities " means a security forming part of the Tier 1 Capital of Westpac on a Level 1 basis or Level 2 basis.

        " Relevant Tax Jurisdiction " has the meaning set out in "—Payment of Additional Amounts".

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

        " Replacement " has the meaning set out in Section 3.14(a)(i) of "—Additional Provisions Applicable to the Securities".

        " Scheduled Conversion Date " has the meaning given in the applicable prospectus supplement or term sheet.

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

        " 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 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.

        " Special Resolution " means:

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

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

        " Trigger Event " "has the meaning set out in Section 2.1 of "—Additional Provisions Applicable to the Securities".

        " Trigger Event Date " means the date on which Conversion or Write-off occurred as a result of a Capital Trigger Event or a Non-Viability Trigger Event, as applicable.

        " VWAP " means, subject to any adjustments under the provisions described in Section 3 of "—Additional Provisions Applicable to the Securities", the average of the daily volume weighted

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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 five ASX Business Days on which trading in Ordinary Shares took place immediately preceding (but not including) the Conversion Date.

        " Westpac Convertible Preference Shares 2012 " means the convertible preference shares issued by Westpac under a prospectus dated February 24, 2012.

        " Westpac Capital Notes " means the notes issued by Westpac under a prospectus dated February 7, 2013.

        " Westpac Capital Notes 2 " means the notes issued by Westpac under a prospectus dated May 15, 2014.

        " Westpac Capital Notes 3 " means the notes issued by Westpac, acting through its London Branch, under a prospectus dated August 6, 2015.

        " Westpac Capital Notes 4 " means the notes issued by Westpac under a prospectus dated May 26, 2016.

        " Westpac Level 1 Group " means either:

        " Westpac Level 2 Group " means Westpac and each subsidiary that is recognized by APRA as part of Westpac's Level 2 Group in accordance with the Prudential Standards.

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

other than in connection with a Solvent Reconstruction.

        " Write-off " has the meaning set out in Section 2.4(c). " Written-off " has a corresponding meaning.

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DESCRIPTION OF ORDINARY SHARES

Share Capital

        As at August 31, 2017, Westpac had 3,394,364,279 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 the 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 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

        The following is a general discussion of the material US federal income tax considerations relating to the purchase, ownership and disposition of the Securities by US Holders (as defined below) who purchase the Securities in an offering of the Securities at their issue price (generally the first price at which a substantial amount of the 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 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, 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, US Holders who hold the 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, administrative and judicial pronouncements and the tax treaty between the United States and Australia, as amended, which we refer to as 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 Security with a scheduled Conversion, a Security where we have the option to Convert such Security into Ordinary Shares, a Security that is issued with an issue price that exceeds such Security's principal amount or a Security where the amount of principal and/or interest scheduled to be paid 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 Security is denominated, and a general discussion of any materially different US federal income tax considerations relating to any such particular 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 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 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 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.

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        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 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 circumstances. There is no statutory, judicial or administrative authority that directly addresses the US federal income tax treatment of securities similar to the Securities. It is therefore unclear whether the Securities should be treated as indebtedness or equity for US federal income tax purposes. Based upon an analysis of the relevant facts and circumstances, under applicable law as of the date hereof, the Securities should be treated as equity for US federal income tax purposes. This classification will be binding on a US Holder, unless the US Holder expressly discloses that it is adopting a contrary position on its income tax return. However, this treatment is not binding on the US Internal Revenue Service, which we refer to as the IRS, and it is possible that a Security could be treated as indebtedness for US federal income tax purposes. If a Security were so treated, the material US federal income tax considerations for US Holders would be materially different than as described below. Each US Holder should consult its own tax advisor regarding the US federal income tax considerations relating to the purchase, ownership and disposition of the Securities if the Securities are treated as indebtedness for US federal income tax purposes. The remainder of this discussion assumes the Securities will be treated as equity for US federal income tax purposes.

        Payments of interest on the Securities will be treated as distributions paid with respect to our stock. A US Holder that receives a distribution of cash with respect to a 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 US Holder's adjusted tax basis in such 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 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 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 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 US Holder. Such 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 US Holder generally will be treated as ordinary income or loss from sources within the United States.

        A distribution on a 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 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 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 US Holder that does not elect to claim a US foreign tax credit for non-US income tax withheld may

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instead claim a deduction for such withheld tax, but only for a taxable year in which the US Holder elects to do so with respect to all non-US income taxes paid or accrued by such US Holder in such taxable year. The rules relating to US foreign tax credits are very complex, and each US Holder should consult its own tax advisor regarding the application of such rules.

        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 2016, 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. Therefore, no assurance can be given that a distribution on a Security held by a 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 Security will be treated as long-term capital loss to the extent of such "extraordinary dividend", irrespective of such US Holder's holding period for such Security. Each 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 US Holder generally will recognize gain or loss for US federal income tax purposes upon the sale, exchange or other disposition of a Security (other than Conversion into Ordinary Shares as described below under "—Conversion of the 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 US Holder's adjusted tax basis in such Security, except to the extent that any cash received in a redemption that is treated as a sale or exchange is attributable to any unpaid interest on the Security for the period from and including the most recent interest payment date to but excluding the date of redemption, which might be treated as a distribution paid with respect to our stock, with the consequences described above under "—Interest Payments on the Securities". Any 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 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 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 Security generally will be treated as a sale, exchange or other disposition of such Security. It is unclear how a partial Write-off of a Security should be treated for US federal income tax purposes, and each US Holder should consult its own tax advisor regarding the US federal income tax consequences of a partial Write-off.

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        Depending on the circumstances, a redemption of a 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 Security will be treated as a sale or exchange if it:

        In determining whether any of these tests has been met, a US Holder must take into account not only the Securities and other of our equity interests that the US Holder actually owns, but also the Securities and other of our equity interests that the 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 Securities". Each US Holder should consult its own tax advisor regarding the US federal income tax consequences of a redemption of a Security, including the treatment of adjusted tax basis where the redemption is treated as a distribution.

        A US Holder that receives non-US currency from the sale, exchange or other disposition of a 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 US Holder is a cash basis or electing accrual basis taxpayer and the 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 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 US Holder generally will be treated as ordinary income or loss from sources within the United States. Each 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 Security in cases not described in the first sentence of this paragraph.

        In general, a corporation organized outside the United States will be treated as a passive foreign investment company, which we refer to as 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 2016, 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, US Holders could suffer adverse consequences, including the possible characterization of any gain from the sale, exchange or other disposition of a Security as ordinary income (rather than capital gain) and an interest charge on a portion of the resulting tax

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liability. Each 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 Securities.

        If a Security is Converted and a US Holder receives solely Ordinary Shares, such US Holder generally will not recognize any income, gain or loss upon such Conversion. A US Holder's tax basis in Ordinary Shares received upon Conversion of a Security generally will be the same as such US Holder's adjusted tax basis in such Security at the time of Conversion, and the holding period for Ordinary Shares so received generally will include the holding period of the 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 US Holder. Such a sale should be treated for US federal income tax purposes as a sale of such Ordinary Shares by such US Holder. See "—Sale, Exchange, Redemption, Write-off or Other Disposition of the 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 the Securities described herein.

        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 income arising from a distribution with respect to a Security and net gain from the sale, exchange, redemption or other disposition of a 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 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 Securities or any amounts received with respect to the 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

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asset" generally includes any financial account maintained with a non-US financial institution and may also include the 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.

FATCA Withholding

        It is possible that, in order to comply with FATCA, we (or, if the 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 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 Securities, with respect to the issuance of any Ordinary Shares upon any Conversion or with 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 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 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 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 Securities, any Conversion and the Ordinary Shares.

Australian Taxation

         THE FOLLOWING IS A GENERAL SUMMARY OF THE AUSTRALIAN TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP, CONVERSION AND DISPOSAL OF THE SECURITIES BY NON-AUSTRALIAN RESIDENT HOLDERS. THIS SUMMARY IS NOT EXHAUSTIVE AND DOES NOT CONSIDER ALL AUSTRALIAN TAX CONSEQUENCES RELATING TO THE SECURITIES THAT MAY BE RELEVANT TO PARTICULAR HOLDERS. IN PARTICULAR, WITHOUT LIMITATION, IT DOES NOT ADDRESS THE TAX CONSEQUENCES WHICH MAY ARISE FOR NON-AUSTRALIAN RESIDENT HOLDERS WHO ACQUIRE THEIR SECURITIES OR THE ORDINARY SHARES (OR AN INTEREST IN THE SECURITIES OR THE ORDINARY SHARES) OTHERWISE THAN UNDER THE OFFERING OF THE SECURITIES UNDER THIS PROSPECTUS, WHO HOLD THE SECURITIES ON REVENUE ACCOUNT OR AS TRADING STOCK, OR WHO ARE SUBJECT TO THE 'TAXATION OF FINANCIAL ARRANGEMENTS' PROVISIONS IN DIVISION 230 OF THE INCOME TAX ASSESSMENT ACT 1997 (1997 ACT) IN RELATION TO THEIR HOLDING OF THE SECURITIES OR ORDINARY SHARES. IN ADDITION, THIS SUMMARY DOES NOT RELATE TO HOLDERS WHO ARE RESIDENT IN AUSTRALIA FOR AUSTRALIAN INCOME TAX PURPOSES OR WHO CARRY ON BUSINESS IN AUSTRALIA THROUGH A PERMANENT ESTABLISHMENT IN AUSTRALIA. ALL PROSPECTIVE INVESTORS ARE ADVISED TO OBTAIN ADVICE RELEVANT TO THEIR OWN CIRCUMSTANCES.

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         THIS SUMMARY IS BASED ON THE RELEVANT AUSTRALIAN TAX LAWS AS AT THE DATE OF THIS PROSPECTUS WHICH MAY BE SUBJECT TO CHANGE, SOMETIMES WITH RETROSPECTIVE EFFECT. IT IS NOT INTENDED TO BE, NOR SHOULD IT BE CONSTRUED AS, LEGAL OR TAX ADVICE TO ANY PARTICULAR HOLDER. THIS SUMMARY ASSUMES THAT THE SECURITIES AND THE ORDINARY SHARES WILL BE ISSUED AND HELD IN ACCORDANCE WITH THIS PROSPECTUS AND THEIR TERMS OF ISSUE.

        The Securities should be "non-share equity interests" for the purposes of Australian taxation law.

        Westpac proposes to issue the Securities in a manner that will satisfy the requirements of section 215-10 of the 1997 Act. On the basis that the issue of the Securities will satisfy the requirements of section 215-10 of the 1997 Act, payments of interest on the Securities to non-Australian resident holders will not be subject to Australian interest or dividend withholding tax, nor will Westpac be required to frank payments of interest on the Securities.

        If interest payments on the Securities do become subject to Australian withholding tax in the future, Westpac will, subject to certain exceptions and limitations, be required to pay additional amounts to ensure that the net amount received by holders after such withholding will equal the amount the holders would have received had there been no such withholding.

        Non-Australian resident holders that have never held their Securities in the course of carrying on business at or through a permanent establishment within Australia should also generally not be subject to Australian ordinary income tax on interest paid on the Securities.

        Westpac could be required to deduct a form of "back-up" withholding tax from payments of interest in respect of the Securities, at the rate specified in the Taxation Administration Regulations 1976 of Australia (currently 47%), and remit such amounts to the Australian Taxation Office, unless a Tax File Number or an Australian Business Number has been quoted by a holder, or a relevant exemption applies and has been notified to Westpac. While the Securities are registered in the name of a securities depository, these withholding requirements are applicable to that securities depository as the holder.

        Westpac will be obliged to pay additional amounts on account of such taxes deducted or withheld on payments made in respect of the Securities unless Westpac has requested the holder (which may be a securities depository) to provide to Westpac information, such as that described below, by which the holder could have lawfully avoided such deduction or withholding and the holder has failed to do so.

        Non-Australian resident holders (which may be a securities depository) may notify an exemption from this withholding by having (among other persons) their public officer, a director or secretary, or an employee authorized by one of those officers, notify Westpac of:

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        Under the Australian capital gains tax provisions, any capital gain or capital loss made by a non-Australian resident holder of the Securities from the disposal of their Securities is likely to be disregarded on the basis that the Securities are not likely to be "taxable Australian property" at the time of disposal, unless the Securities were used by the non-resident in carrying on business through a permanent establishment in Australia. Any non-Australian resident holders who held their Securities in the course of carrying on a business in Australia should obtain specific advice in respect of the potential consequences of a disposal of their Securities in their particular circumstances.

        Non Australian residents that have never held their Securities in the course of carrying on business at or through a permanent establishment within Australia will not be subject to Australian ordinary income tax on gains realized by them on the sale or redemption of the Securities provided that such gains do not have an Australian source. A gain arising on the sale of the Securities by a non-Australian resident to another non-Australian resident where the 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. A gain arising on the redemption of the Securities by a foreign branch of an Australian resident where the Securities were acquired outside Australia would not generally be expected to have an Australian source.

        Any gain or loss made by a holder on Conversion of the Securities will be disregarded for the purposes of Australian taxation law.

        In broad terms, distributions on Ordinary Shares may be "franked" to the extent that the distributions have been paid out of Westpac profits that have borne tax in Australia at the Australian corporate tax rate. To the extent that dividends paid to non-Australian resident holders, who do not hold their Ordinary Shares through a permanent establishment in Australia, are franked, the franked part of those distributions will not be subject to Australian dividend withholding tax or Australian ordinary income tax. An unfranked distribution will also be exempt from dividend withholding tax and Australian ordinary income tax to the extent that it is declared to be "conduit foreign income".

        The unfranked portion of any distribution that is not the subject of a conduit foreign income declaration will be subject to Australian dividend withholding tax at the rate of 30%, unless the rate is reduced under an applicable tax treaty.

        If a holder of Ordinary Shares is resident in the United States for the purposes of the Tax Treaty, and is entitled to the benefits conferred under that treaty, the rate of Australian dividend withholding tax on unfranked distributions on Ordinary Shares will generally be reduced to 15%, unless the holder was also a company which holds at least a 10% voting interest in Westpac, in which case the rate of withholding tax would be reduced to 5%.

        The circumstances in which a holder would be liable for Australian income tax, including under the capital gains provisions, on a disposal of the Ordinary Shares are broadly the same as those described above in relation to a disposal of Securities.

        The Commissioner of Taxation for Australia may give a direction under section 255 of the Income Tax Assessment Act 1936 of Australia or section 260-5 of Schedule 1 to the Tax Administration Act 1953 of Australia or any similar provision requiring Westpac to deduct or withhold from any payment to any other party (including any holder of the Securities or Ordinary Shares) any amount in respect of

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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.

        No GST will be payable by a holder on the acquisition of the Securities or on a sale, Conversion or redemption of the Securities. No GST will be payable by holders on the acquisition or sale of Ordinary Shares.

        No Australian stamp duty will be payable on the issue of the Securities, or on a sale, Conversion or redemption of the Securities. No Australian stamp duty will be payable on the acquisition or sale of Ordinary Shares.

        Under current Australian law, there are no gift, estate or other inheritance taxes or duties.

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PLAN OF DISTRIBUTION

        We may sell the 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 only to purchasers (a) in the United States that are reasonably believed to qualify as "qualified institutional buyers" as defined in Rule 144A of the Securities Act; and (b) outside of the United States, in accordance with (i) the selling restrictions set forth in the applicable prospectus supplement or term sheet, and (ii) all other applicable laws and regulations relating to or governing similar restrictions on the offer and sale of the securities in the jurisdictions in which such offers or sales occur.. 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.

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        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:

        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 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 FILED WITH THE SEC

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

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

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        We also incorporate by reference each of the following documents that we 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.


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. 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.

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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)

    0.7980     0.7635     0.7991     0.7174  

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

(2)
Through September 1, 2017.

        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 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 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 consolidated 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 2016 Form 20-F, 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 the Chartered Accountants Australia and New Zealand Professional Standards Scheme (NSW) 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

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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:

        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 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 extensive judicial consideration and therefore how the limitation might be applied by the courts and the effect of the limitation remain untested in a number of respects, including its effect in respect of the enforcement of foreign judgments.

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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS

Item 8.    Indemnification of Directors and Officers

        Except as hereinafter described, 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.

Item 10.    Undertakings

(a)
Rule 415 Offering.

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      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, 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.

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      (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 purpose 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

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    to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)
SEC Position on Indemnification for Securities Act Liabilities.

    Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.

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EXHIBIT INDEX

Number   Description
  1.1   Form of Underwriting Agreement for offering of the 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   Indenture, dated as of September 7, 2017, between Westpac Banking Corporation and The Bank of New York Mellon, as trustee
  5.1   Opinion of Debevoise & Plimpton LLP
  5.2   Opinion of King & Wood Mallesons
  23.1   Consent of PricewaterhouseCoopers
  23.3   Consent of Debevoise & Plimpton LLP (included in Exhibit 5.1)
  23.4   Consent of King & Wood Mallesons (included in Exhibit 5.2)
  24.1   Power of Attorney
  25.1   Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon, as trustee under the Indenture, dated as of September 7, 2017.

*
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

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SIGNATURES

        Pursuant to the requirements of the Securities Act, 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 September 7, 2017.

    WESTPAC BANKING CORPORATION

 

 

By:

 

/s/ SEAN CRELLIN

Sean Crellin
Director—Corporate, Legal and Secretariat

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

Name
 
Title
 
Date

 

 

 

 

 

 

 
*

Lindsay Maxsted
  Chairman   September 7, 2017

*

Ewen Crouch

 

Director

 

September 7, 2017

*

Alison Deans

 

Director

 

September 7, 2017

*

Craig Dunn

 

Director

 

September 7, 2017

*

Robert Elstone

 

Director

 

September 7, 2017

*

Peter Hawkins

 

Director

 

September 7, 2017

*

Peter Marriott

 

Director

 

September 7, 2017

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Name
 
Title
 
Date

 

 

 

 

 

 

 
*

Brian Hartzer
  Managing Director and Chief Executive Officer (Principal Executive Officer)   September 7, 2017

*

Peter King

 

Chief Financial Officer (Principal Financial Officer)

 

September 7, 2017

*

David Lees

 

Deputy Chief Financial Officer (Principal Accounting Officer)

 

September 7, 2017

*

Sean Crellin

 

Authorized Representative in the United States

 

September 7, 2017

*By:

 

/s/ SEAN CRELLIN

Attorney-in-fact

 

 

 

September 7, 2017

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Exhibit 4.2

 

 

INDENTURE

 

between

 

WESTPAC BANKING CORPORATION

 

and

 

THE BANK OF NEW YORK MELLON

 

as Trustee

 

Dated as of September 7, 2017

 

Providing for Issuance of Subordinated Contingent Convertible
Securities in Series

 

 



 

Reconciliation and tie between this Indenture, dated as of September 7, 2017, and the Trust Indenture Act of 1939, as amended.

 

Trust Indenture Act of 1939
Section

 

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

(a) (1)(A)

 

Not Applicable

 

i



 

Trust Indenture Act of 1939
Section

 

Indenture Section

 

 

 

(a) (1)(B)

 

TIA

(b)

 

TIA

(c)

 

TIA

 

 

 

317 (a) (1)

 

TIA

(a) (2)

 

TIA

(b)

 

12.3

 

 

 

318 (a)

 

1.11

(b)

 

TIA

(c)

 

1.11; TIA

 

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

 

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Page

 

 

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

 

 

 

Section 1.1.

Definitions

1

Section 1.2.

Compliance Certificates and Opinions

18

Section 1.3.

Form of Documents Delivered to Trustee

18

Section 1.4.

Acts of Holders

19

Section 1.5.

Notices, etc., to Trustee and Company

21

Section 1.6.

Notice to Holders; Waiver

21

Section 1.7.

Headings and Table of Contents

22

Section 1.8.

Successors and Assigns

22

Section 1.9.

Separability

23

Section 1.10.

Benefits of Indenture

23

Section 1.11.

Governing Law

23

Section 1.12.

Legal Holidays

24

Section 1.13.

No Recourse Against Others

24

Section 1.14.

Consent to Service

25

Section 1.15.

Waiver of Jury Trial

25

Section 1.16.

Counterparts

26

 

 

 

ARTICLE II

 

SECURITY FORMS

 

Section 2.1.

Forms Generally

26

Section 2.2.

Form of Trustee’s Certificate of Authentication

27

Section 2.3.

Securities in Global Form

27

Section 2.4.

Form of Legend for Securities in Global Form

28

 

 

 

ARTICLE III

 

THE SECURITIES

 

Section 3.1.

Amount Unlimited; Issuable in Series

28

Section 3.2.

Denominations

31

Section 3.3.

Execution, Authentication, Delivery and Dating

32

Section 3.4.

Temporary Securities

34

Section 3.5.

Registration, Transfer and Exchange

35

Section 3.6.

Replacement Securities

38

 

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(continued)

 

 

 

Page

 

 

 

Section 3.7.

Payment of Interest; Interest Rights Preserved

39

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

47

 

 

 

ARTICLE IV

 

STATUS OF THE SECURITIES

 

Section 4.1.

Acknowledgements

47

Section 4.2.

Status and Subordination of Securities

48

Section 4.3.

Reserved

48

Section 4.4.

Winding-Up

48

Section 4.5.

No Set-Off

49

Section 4.6.

Non-Payment of Interest

50

Section 4.7.

Restrictions in the Case of Non-Payment of Interest

51

Section 4.8.

Clawback

52

Section 4.9.

Other Provisions

52

 

 

 

ARTICLE V

 

TRIGGER EVENT, CONVERSION AND WRITE-OFF

 

Section 5.1.

Trigger Event

53

Section 5.2.

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

55

Section 5.3.

No Further Rights

56

Section 5.4.

Consent to Receive Ordinary Shares and Other Acknowledgements

56

Section 5.5.

Issue of Ordinary Shares of Successor Company

58

Section 5.6.

Scheduled Conversion

58

Section 5.7.

Conversion at the Option of the Company

58

Section 5.8.

No Conversion at the Option of the Holders

58

Section 5.9.

Priority of Early Conversion Obligations

58

Section 5.10.

No Rights before Conversion

58

Section 5.11.

Trustee’s Rights upon Conversion or Write-off

59

 

iv



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

ARTICLE VI

 

PROCEDURES FOR CONVERSION

 

Section 6.1.

Conversion

60

Section 6.2.

Adjustments to VWAP Generally

62

Section 6.3.

Adjustments to VWAP for Capital Reconstruction

63

Section 6.4.

Adjustments to Issue Date VWAP Generally

63

Section 6.5.

Adjustments to Issue Date VWAP for Bonus Issues

64

Section 6.6.

Adjustments to Issue Date VWAP for Capital Reconstruction

65

Section 6.7.

No Adjustment to Issue Date VWAP in Certain Circumstances

65

Section 6.8.

Announcement of Adjustment to Issue Date VWAP

65

Section 6.9.

Status and Listing of Ordinary Shares

65

Section 6.10.

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

66

Section 6.11.

Conversion or Write-off if Amounts Not Paid

69

Section 6.12.

Conversion or Write-off After Winding-Up Commences

69

Section 6.13.

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

69

Section 6.14.

Amendment of Terms and Conditions Relating to Conversion for Approved Successor

69

Section 6.15.

Power of Attorney

72

Section 6.16.

Cancellation

72

Section 6.17.

Calculations

72

 

 

 

ARTICLE VII

 

SATISFACTION AND DISCHARGE

 

Section 7.1.

Termination of Company’s Obligations Under the Indenture

72

Section 7.2.

Repayment to Company

72

 

 

 

ARTICLE VIII

 

RESERVED

 

Section 8.1.

Reserved

73

 

 

 

ARTICLE IX

 

THE TRUSTEE

 

Section 9.1.

Rights, Duties and Responsibilities of Trustee

73

 

v



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

Section 9.2.

Trustee May Hold Securities

75

Section 9.3.

Money Held in Trust

75

Section 9.4.

Trustee’s Disclaimer

75

Section 9.5.

Reserved

75

Section 9.6.

Reports by Trustee to Holders

75

Section 9.7.

Security Holder Lists

76

Section 9.8.

Compensation and Indemnity

76

Section 9.9.

Replacement of Trustee

77

Section 9.10.

Acceptance of Appointment by Successor

78

Section 9.11.

Eligibility; Disqualification

79

Section 9.12.

Merger, Conversion, Consolidation or Succession to Business

80

Section 9.13.

Appointment of Authenticating Agent

80

Section 9.14.

Preferential Collection of Claims Against Company

83

Section 9.15.

FATCA

83

 

 

 

ARTICLE X

 

CONSOLIDATION, MERGER OR SALE BY THE COMPANY

 

Section 10.1.

Consolidation, Merger or Sale of Assets Permitted

83

 

 

 

ARTICLE XI

 

SUPPLEMENTAL INDENTURES

 

Section 11.1.

Supplemental Indentures Without Consent of Holders

84

Section 11.2.

With Consent of Holders

86

Section 11.3.

Changes Requiring a Special Resolution

88

Section 11.4.

Compliance with Trust Indenture Act

88

Section 11.5.

Execution of Supplemental Indentures

88

Section 11.6.

Effect of Supplemental Indentures

88

Section 11.7.

Reference in Securities to Supplemental Indentures

88

 

 

 

ARTICLE XII

 

COVENANTS

 

Section 12.1.

Payment of Principal and Interest (If Payable)

89

Section 12.2.

Maintenance of Office or Agency

89

Section 12.3.

Money for Securities to Be Held in Trust; Unclaimed Money

89

Section 12.4.

Corporate Existence

90

Section 12.5.

Insurance

91

Section 12.6.

Reports by the Company

91

 

vi



 

Table of Contents

(continued)

 

 

 

Page

 

 

 

Section 12.7.

Annual Review Certificate

92

Section 12.8.

Withholding Tax and Payment of Additional Amounts

92

Section 12.9.

Payment of Stamp Taxes

94

Section 12.10.

Indemnification of Judgment Currency

94

Section 12.11.

Waiver of Certain Covenants

94

 

 

 

ARTICLE XIII

 

REDEMPTION

 

Section 13.1.

Applicability of Article

95

Section 13.2.

Election to Redeem; Notice to Trustee

95

Section 13.3.

Selection of Securities to Be Redeemed

96

Section 13.4.

Notice of Redemption

96

Section 13.5.

Deposit of Redemption Price

97

Section 13.6.

Securities Payable on Redemption Date

97

Section 13.7.

Securities Redeemed in Part

98

Section 13.8.

Redemption for Taxation or Regulatory Reasons

98

 

vii


 

INDENTURE (this “ Indenture ”), dated as of September 7, 2017, between WESTPAC BANKING CORPORATION ABN 33 007 457 141, a bank incorporated in the Commonwealth of Australia (“ Australia ”) and registered in the State of 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 has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of contingent convertible securities to be issued in one or more series as herein provided (the “ Securities ”); 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:

 

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) affecting the taxation treatment of the Securities in a Relevant Tax Jurisdiction.

 

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

 

(a)           any amendment to, clarification of, or change (including any announcement of a change that will be introduced) in, the laws or treaties or any regulations affecting taxation in a Relevant Tax Jurisdiction;

 

(b)           any Administrative Action; or

 

(c)           any amendment to, clarification of, or change in, an Administrative Action that provides for a position that differs from the current generally accepted position,

 

in each case, by any legislative body, court, governmental authority (including, without limitation, a tax authority) or regulatory body in a Relevant Tax Jurisdiction, irrespective of the manner in which such amendment, clarification, change or Administrative Action is made known, which amendment, clarification, change or Administrative Action is effective, or is announced or made known, on or after the issue date and which on the issue date is not expected by the Company to come into effect, there is a material risk that:

 

(i)            the Company is or would be required to increase the amount of any interest scheduled to be paid on the Securities by payment of an additional amount in respect of any withholding tax and such an increase cannot be avoided within 60 days of such Adverse Tax Event by the Company filing a form, making an election or taking some reasonable measure that in the Company’s sole judgment will not be adverse to the Company and will involve no cost to the Company that is material in the context of the Securities;

 

2



 

(ii)           the Company is or would be no longer entitled to claim a deduction for any payments in respect of the Securities in computing its taxation liabilities in or relating to such Relevant Tax Jurisdiction or the amount of such deduction is or would be materially reduced; or

 

(iii)          any interest scheduled to be paid on the Securities is or would be a frankable dividend or distribution within the meaning of Division 202 of the Australian Tax Act.

 

If, after the issue date, ( A ) as a result of a Branch Change Notice, the Company changes the branch through which it acts in respect of the Securities to another branch of the Company in a jurisdiction different from the jurisdiction of the branch through which the Company was acting immediately before such notice, the references to “issue date” in the preceding paragraph shall be deemed to be to the date the Branch Change Notice is given or ( B ) a Relevant 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, provided that, the issue date will not be so amended if the location of the branch through which the Securities are issued is unchanged as a result of the Relevant Transaction.

 

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);

 

3



 

(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 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

 

(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,

 

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 ” means the Australian Prudential Regulation Authority or any authority succeeding to its powers or responsibilities.

 

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.

 

4



 

Australian Tax Act ” means the Income Tax Assessment Act 1936 of Australia and the Income Tax Assessment Act 1997 of Australia, or any successor acts.

 

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 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, and in the case of Securities issued by any branch of the Company, such branch’s Chief Executive Officer, Chief Financial Officer or Chief Operating Officer, or such branch’s officers of equivalent status as may be designated 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.

 

Branch Change Notice ” means notice to Holders by which the Company changes the branch through which the Company acts in respect of the Securities to another branch of the Company in any jurisdiction, including Australia, with effect from the date specified in the notice.

 

Buy Back ” means a transaction involving the acquisition by the Company of its Ordinary Shares pursuant to the provisions of Part 2J of the Australian Corporations Act.

 

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.

 

5



 

calculation agent ” means the Person, if any, authorized by the Company to calculate the interest rate or other amounts from time to time in relation to any series of the Securities.

 

Capital Notes ” means the notes issued by the Company under a prospectus dated February 7, 2013.

 

Capital Notes 2 ” means the notes issued by the Company under a prospectus dated May 15, 2014.

 

Capital Notes 3 ” means the notes issued by the Company, acting through its London Branch, under a prospectus dated August 6, 2015.

 

Capital Notes 4 ” means the notes issued by the Company under a prospectus dated May 26, 2016.

 

Capital Reduction ” means a reduction in capital by the Company of its Ordinary Shares in any way permitted by the provisions of Part 2J of the Australian Corporations Act.

 

Capital Trigger Event ” means that:

 

(a) the Company determines; or

 

(b) APRA notifies the Company in writing that it believes,

 

that a Common Equity Capital Ratio is equal to or less than 5.125%.

 

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 Capital Ratio ” means either or both of:

 

(a)           in respect of the Company’s Level 1 Group, the ratio of Common Equity Tier 1 Capital to risk weighted assets of the Company’s Level 1 Group; and

 

(b)           in respect of the Company’s Level 2 Group, the ratio of Common Equity Tier 1 Capital to risk weighted assets of the Company’s Level 2 Group,

 

in each case, as prescribed by APRA from time to time.

 

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

 

6



 

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 the conversion of all or some of the Securities (or a percentage of the Outstanding Principal Amount of each Security) into Ordinary Shares in accordance with the terms of the Indenture.  “Convert,” “Converting” and “Converted” have corresponding meanings.

 

Conversion Date ” means the applicable:

 

(a)           Trigger Event Date;

 

(b)           Optional Conversion Date; or

 

(c)           Scheduled Conversion Date.

 

Convertible Preference Shares 2012 ” means the convertible preference shares issued by the Company under a prospectus dated February 24, 2012.

 

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

 

7



 

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.

 

Dividend ” means any interim, final or special dividend payable in accordance with the Australian Corporations Act and the Company’s Constitution in relation to Ordinary Shares.

 

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:

 

(a)           in the case of a dividend, distribution or payment of interest in respect of the Securities, any securities or other instruments (including the Convertible Preference Shares 2012, the Capital Notes, the Capital Notes 2, the Capital Notes 3 and the Capital Notes 4) which ranks or is expressed to rank for payment of the dividend, distribution or interest equally with the Securities; and

 

(b)           in the case of redemption or repayment of, reduction of capital on, cancellation of or acquisition of the Securities, any securities or other instruments (including the Convertible Preference Shares 2012, the Capital Notes, the Capital Notes 2, the Capital Notes 3 and the Capital Notes 4) which ranks or is expressed to rank equally with the Securities for repayment or a return of capital if the Company is wound up.

 

FATCA ” means Sections 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.

 

Financial Claims Scheme ” means the financial claims scheme established under the Australian Banking Act.

 

Foreign Holder ” means a Holder ( 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.

 

8



 

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

 

Ineligible Holder ” means a Holder that is prohibited or restricted by any applicable law or regulation in force in:

 

(a)           Australia (including but not limited to Chapter 6 of the Australian Corporations Act, the Foreign Acquisitions and Takeovers Act 1975 of Australia, the Financial Sector (Shareholdings) Act 1998 of Australia and Part IV of the Competition and Consumer Act 2010 of Australia);

 

(b)           New Zealand (including but not limited to the Overseas Investment Act 2005 of New Zealand, the Financial Markets Conduct Act 2013 of New Zealand and the Reserve Bank of New Zealand Act 1989 of New Zealand); or

 

(c)           any other jurisdiction in which the Company carries on business,

 

from being offered, holding or acquiring Ordinary Shares (provided that if the relevant prohibition or restriction only applies to the Holder in respect of some of its Securities, it shall only be treated as an Ineligible Holder in respect of those Securities and not in respect of the balance of its Securities).

 

Interest Payment Date ,” when used with respect to any Security, means the date specified in such Security, if any, as the fixed date on which the installment of interest, if any, is scheduled to be paid on such Security.

 

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.

 

Level 1 ” and “ Level 2 ” have the meaning prescribed by APRA in the Prudential Standards.

 

Level 1 Group ” means either:

 

(a)           the Company; or

 

(b)           the “extended licensed entity” which is comprised of the Company and each subsidiary of the Company as specified in any approval granted by APRA in accordance with the Prudential Standards.

 

9



 

Level 2 Group ” means the Company and each subsidiary that is recognized by APRA as part of the Company’s Level 2 Group in accordance with the Prudential Standards.

 

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

 

(a)           Conversion or Write-off of all or some of the Securities, or conversion, write-off or write-down 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.

 

Optional Conversion Date ” has the meaning given in an indenture supplemental hereto for the Securities of any series.

 

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

 

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

 

(a)           the Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;

 

(b)           the 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

 

10


 

has been duly given pursuant to this Indenture or provisions therefor satisfactory to the Trustee have been made; and

 

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

 

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;

 

11



 

(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 interest, if any, and any other payments, if any, on any of the Securities on behalf of the Company.

 

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

 

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

 

Place of Payment ,” when used with respect to the Securities of or within any series, means the place or places where interest, if any, and any other payments, if any, on such Securities are scheduled to be paid 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 instrument 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.

 

12



 

Preference Share ” means a notional preference share in the capital of the Company conferring a claim in a Winding-Up that ranks equally with the Securities and which is equal to the Outstanding Principal Amount of a Security.

 

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

 

Recognized Exchange ” means a recognized stock exchange or securities market in an Organization for Economic Cooperation and Development member state.

 

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 scheduled to be paid 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 of the 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 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 judicial decision is announced, on or after the issue date of the Securities of such series; or

 

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

 

the Company is not or will not be entitled to treat all of the Securities of such series as Additional Tier 1 Capital in whole, provided that, in each case, the Company did not

 

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expect at the issue date of the Securities of such series that the matter giving rise to the Regulatory Event would occur.

 

Related Entities ” means entities 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 a Security forming part of the Tier 1 Capital of the Company on a Level 1 basis or Level 2 basis.

 

Relevant Tax Jurisdiction ” means Australia or any political subdivision or taxing authority thereof or therein and where the Company is acting with respect to the Securities through a branch outside Australia, the jurisdiction in which the branch is located or any political subdivision or taxing authority thereof or therein.  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 Australia or a political subdivision of a country other than 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 under this Indenture and the Securities, the term Relevant Tax Jurisdiction shall also include the country in which such entity is organized or resident (or deemed resident for tax purposes) or any political subdivision or taxing authority thereof or therein.

 

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 the 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 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.

 

Scheduled Conversion Date ” has the meaning given in an indenture supplemental hereto for the Securities of any series.

 

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

 

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acting through its head office or any of its branches, issued, authenticated and delivered under this Indenture.

 

Senior Creditors ” means all creditors of the Company (present and future), including depositors of the Company and all holders of the Company’s senior or subordinated 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)                                   an Ordinary Share.

 

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 Resolution ” means:

 

(a)                                  a resolution passed at a meeting of Holders of the Securities of a series by a majority of at least 75% of the votes validly cast by Holders of the Securities of such series in person or by proxy and entitled to vote on the resolution; or

 

(b)                                  the written approval of Holders of the Securities of a series holding at least 75% of the Securities of such series.

 

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

 

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).

 

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

 

Trigger Event ” means a Capital Trigger Event or a Non-Viability Trigger Event.

 

Trigger Event Date ” means the date on which Conversion or Write-off occurred as a result of a Capital Trigger Event or a Non-Viability Trigger Event, as applicable.

 

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.

 

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

 

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.

 

VWAP Period ” means the period of 5 ASX Business Days on which trading in Ordinary Shares took place immediately preceding (but not including) the Conversion 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 or deemed to have been passed by members for the winding-up of the Company,

 

other than in connection with a Solvent Reconstruction.

 

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(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(a)(ii)

 

 

 

“Approved Successor Shares”

 

6.14(a)(ii)

 

 

 

“Attorney”

 

6.15

 

 

 

“CHESS”

 

6.10(a)(ii)

 

 

 

“Claims”

 

9.8(b)

 

 

 

“Conversion Number”

 

6.1(a)

 

 

 

“Cum Value”

 

6.2(a)

 

 

 

“Expiration Date”

 

1.4(g)

 

 

 

“Holders’ Nominee”

 

6.10(b)(vii)

 

 

 

“Judgment Currency”

 

12.10

 

 

 

“Market Exchange Rate”

 

3.11(h)

 

 

 

“Maximum Conversion Number”

 

6.1(a)

 

 

 

“Payment Condition”

 

4.6

 

 

 

“Reclassification”

 

6.3

 

 

 

“Register”

 

3.5

 

 

 

“Registrar”

 

3.5

 

 

 

“Replacement”

 

6.14(a)(i)

 

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Term

 

Section

 

 

 

“Specified Currency”

 

12.10

 

 

 

“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 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.

 

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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, 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 may provide its proxy or proxies to the beneficial owners of interests in any such Security through such Depositary’s standing instructions and customary practices.

 

(c)                                   The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate

 

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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 the Securities 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 the Securities 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 the Securities 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 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

 

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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 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 the 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 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

 

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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 their 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.

 

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

 

22



 

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 (excluding Sections 4.6 and 4.7), V and VI and any provisions in this Indenture and the Securities which relate to, or define terms used in, such Articles, 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.

 

(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

 

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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.

 

(5)                                  To the extent that the Company or any properties, assets or revenues of the Company may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with any Security 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 consents to such relief and enforcement.

 

Section 1.12.                           Legal Holidays .  Unless otherwise provided with respect to any Security or the Securities pursuant to Section 3.1, and subject to Section 6.1(b), in any case where any Interest Payment Date, Redemption Date 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 Outstanding Principal Amount or interest, if any, 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 scheduled to be paid for the period from and after such Interest Payment Date, Redemption Date 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

 

24



 

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 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

 

25



 

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

 

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 the 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 the 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.

 

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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

 

Section 2.3.                                  Securities in Global Form .  If the 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 the 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 Outstanding Principal Amount of and interest, if any, on any Security in permanent global form shall be made to the registered Holder thereof.

 

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Section 2.4.                                  Form of Legend for Securities in Global Form .  Unless otherwise provided with respect to any of the 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 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 the 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 the 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)                                  location of the issuing branch, if applicable;

 

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

 

(3)                                  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 the Securities authenticated and

 

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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, 11.7, or 13.7);

 

(4)                                  any additional subordination provisions;

 

(5)                                  percentage(s) of principal amount at which such series of the Securities will be issued;

 

(6)                                  the rate or rates at which interest, if any, on the Securities of the series will be paid, or the dates on which any interest rate may reset and the method of calculating and/or resetting such rate or rates of interest, the date or dates on which such interest is scheduled to be paid or the method by which such date or dates shall be determined, the Interest Payment Dates on which any such interest will be scheduled to be paid and, with respect to Registered Securities, the Regular Record Date, if any, for the interest scheduled to be paid on any Registered Security on any Interest Payment Date;

 

(7)                                  the calculation agent, if any;

 

(8)                                  the place or places where the Outstanding Principal Amount and interest, if any, on the Securities of the series shall be scheduled to be paid;

 

(9)                                  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, the Securities of the series may be redeemed, in whole or in part, at the option of the Company (including any change or addition to the definitions of Adverse Tax Event and Regulatory Event in this Indenture) and, if other than as provided in Section 13.3, the manner in which the particular Securities of such series (if less than all of the Securities of such series are to be redeemed) are to be selected for redemption;

 

(10)                           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;

 

(11)                           any 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, and whether the Conversion provisions are automatic, scheduled and/or optional;

 

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

 

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(13)                           if other than Dollars, the currency or currencies (including currency unit or units) in which the Outstanding Principal Amount, interest, if any, or other payments, if any, on the Securities of the series shall be scheduled to be paid, 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;

 

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

 

(15)                           if other than as provided in Section 3.7, the Person to whom interest, if any, on any Registered Security of the series shall be payable;

 

(16)                           provisions, if any, granting special rights to the Holders of the 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, the 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

 

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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 of the Securities of the series in global form may exchange such interests for certificated Securities of such series and of like tenor of any authorized form and denomination, and ( iv ) if other than as provided in Section 3.5, the circumstances under which any such exchange may occur;

 

(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 (excluding Section 4.6 and 4.7), V and VI and any provisions in the Securities which relate to, or define terms used in, such Articles, the laws of New South Wales, Commonwealth of Australia;

 

(25)         any terms relating to withholding tax and payment of additional amounts which modify or are in addition to those included in this Indenture; and

 

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

 

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

 

The 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 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 the 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 the 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 the 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 the 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 the 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

 

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

 

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

 

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

 

With respect to the 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 the 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

 

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the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more of the 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 the Securities in global form, ( ii ) shall be registered in the name of the Depositary for such Security or the Securities in global form or the nominee of such Depositary, ( iii ) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and ( iv ) shall bear the legend set forth in Section 2.4.

 

Unless otherwise established pursuant to Section 3.1, each Depositary designated pursuant to Section 3.1 for a Registered Security in global form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934, 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 the 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

 

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

 

Except in the case of temporary Securities in global form, each of which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay.  After preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company pursuant to Section 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)

 

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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.

 

Unless otherwise specified pursuant to Section 3.1 with respect to a series of the Securities or as otherwise provided below in this Section 3.5, owners of beneficial interests in the Securities of such series represented by a Security issued in global form will not be entitled to have the Securities of such series registered in their names, will not receive or be entitled to receive physical delivery of the 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 the 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)(23) 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, the 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 the Securities of a series issued in global form shall no longer be represented by such a Security or the 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 the Securities of such series of like tenor, shall authenticate and deliver, the Securities of

 

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

 

(1)           to each Person specified by such Depositary a new certificated Security or Securities of the same series of like tenor, of any authorized denomination as requested by such Person in aggregate 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 of the 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 the Securities shall be the valid obligations of the Company, evidencing the same obligations, 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

 

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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 the 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 the Securities, other than exchanges pursuant to Section 3.4 or 13.7 not involving any transfer.

 

Unless otherwise provided as contemplated by Section 3.1, the Company shall not be required ( i ) to issue, register the transfer of, or exchange any of the Securities for a period beginning at the opening of business 15 days before any selection for redemption of the 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 the 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 the 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, 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.

 

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

 

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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 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, interest, if any, on any Registered Security which is scheduled to be paid, and is 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 on which interest is scheduled to be paid 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 the Securities of such series or ( ii ) to a Holder of $1,000,000 or more in aggregate Outstanding Principal Amount of the Securities by wire transfer to an account maintained by the Person entitled thereto as specified in the Register of Holders of the Securities of such series. Any payment of interest on the Securities must be made in the form of cash.

 

(b)           Subject to this Section 3.7 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 any unpaid interest which were carried by such other Security, except to the extent that the Company has determined in its absolute discretion not to pay such interest or the Company is obliged not to pay such interest because another Payment Condition is not satisfied.

 

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 Outstanding Principal Amount of and (subject to Section 3.7) interest, if any, and any other payments on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security shall be overdue, and

 

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neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

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

 

Section 3.9.           Cancellation .  The Company at any time may deliver Securities 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 of the 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 Outstanding Principal Amount 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 of the 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 Outstanding Principal Amount of or interest, if any, on

 

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such Registered Securities in any of the currencies or currency units which may be designated for such election by delivering to the Trustee (or the applicable Paying Agent) a written election with signature guarantees and in the applicable form established pursuant to Section 3.1, not later than the close of business on the Election Date immediately preceding the applicable payment date.  If a Holder so elects to receive such payments in any such currency or currency unit, such election will remain in effect for such Holder or any transferee of such Holder until changed by such Holder or such transferee by written notice to the Trustee (or any applicable Paying Agent) for such series of Registered Securities (but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date, and no such change of election may be made with respect to payments to be made on any Registered Security of such series with respect to which 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 Outstanding Principal Amount 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

 

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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 Outstanding Principal Amount of and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency or such other currency unit occurring after the last date on which such Foreign Currency or such other currency unit was used (the “ 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

 

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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 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 the Securities of or within any series, shall mean, unless otherwise specified with respect to any of the Securities pursuant to Section 3.1, a New York Clearing House bank designated pursuant to Section 3.1 or Section 3.12.  In no event shall the Trustee serve as the Exchange Rate Agent.

 

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 Outstanding Principal Amount 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

 

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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.

 

Market Exchange Rate ” shall mean, unless otherwise specified with respect to any of the 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 of the 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

 

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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 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 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

 

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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 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 the 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 the 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 Outstanding Principal Amount 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 the Securities accepting such appointment executed by the successor Exchange Rate Agent.

 

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

 

ARTICLE IV

 

STATUS OF THE SECURITIES

 

Section 4.1.           Acknowledgements .  Each Holder (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 Additional Tier 1 Capital and be able to absorb losses at the point of non-viability of the Company or if the Company does not meet certain capital adequacy requirements as described in the Prudential Standards;

 

(b)           the Company’s obligations in respect of the Securities are subordinated (and senior only to its obligation to holders of Ordinary Shares) pursuant to Section 4.2 of this Indenture;

 

(c)           the Securities are perpetual and have no stated maturity date or other fixed redemption date; and

 

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

 

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

 

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

 

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

 

Section 4.3.           Reserved .

 

Section 4.4.           Winding-Up .  In a Winding-Up in Australia Securities that have not been Converted or Written-off (or that have been partially Converted or Written Off) will be redeemable at their Outstanding Principal Amount and ( a ) neither the Trustee nor any Holder shall have any right or claim against the Company in respect of the principal of or interest, if any, on the 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 against the Company to recover any Outstanding Principal Amount or interest, if any, in respect of the Securities that have not been Converted or Written-off shall:

 

(i)            be subordinate to, and rank junior in right of payment to, the obligations of the Company to Senior Creditors (including in respect of any entitlement to interest under section 563B of the Australian Corporations Act) and all such obligations to Senior 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)           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

 

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(iii)          rank prior to, and senior in right of payment to, the obligations of the Company to holders of Ordinary Shares.

 

Unless and until Senior Creditors have been paid in full, neither the Trustee nor any Holder will be entitled to claim in the Winding-Up in Australia 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 in Australia, the Trustee and any Holder of Securities that have not been Converted or Written-off (or that have been partially Converted or Written-off) 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 so that the Holder receives, for each Security it holds, an amount equal to the amount it would have received if, in the Winding-Up, it had held an issued and fully paid Preference Share.  Holders waive in respect of any Security, to the fullest extent permitted by law, any right to prove in a Winding-Up in Australia as a creditor of the Company ranking for payment in any other manner.  Holders shall not be entitled to place the Company in administration or to seek the appointment of a receiver, receiver and manager, liquidator or provisional liquidator to the Company.  The Trustee and any Holder will have no further or other claim on the Company in a Winding-Up other than the claim for the Outstanding Principal Amount and interest, if any, as described above, and in the case of the Trustee, its claims under Section 9.8.

 

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

 

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

 

(ii)                                   if the Securities are Written-off, all rights in relation to the Securities will be terminated, and holders will not be paid the Outstanding Principal Amount or receive interest or have the right to have the 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 is entitled to set-off any amounts due in respect of the 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.           Non-Payment of Interest .  (a) Payments of interest on the Securities are within the absolute discretion of the Company and will be non-cumulative.  The payment of any interest on the Securities is subject to:

 

(i)            the Company’s absolute discretion;

 

(ii)           the interest payment not resulting in a breach of the Company’s capital requirements (on a Level 1 basis) or of the Group’s capital requirements (on a Level 2 basis) under the then current Prudential Standards at the time of the interest payment;

 

(iii)          the interest payment not resulting in the Company becoming, or being likely to become, insolvent for the purposes of the Australian Corporations Act; and

 

(iv)          APRA not otherwise objecting to the interest payment

 

((i) through (iv) above, each referred to as a “ Payment Condition ” and, collectively, as the Payment Conditions).

 

(b)           If all or any part of any interest payment is not paid because of this Section 4.6 or because of any applicable law:

 

(i)            the Company will have no liability to pay the unpaid amount of interest;

 

(ii)           neither Holders nor any other person will have a claim (including, without limitation, in a Winding-Up) or entitlement in respect of such non-payment;

 

(iii)          such non-payment will not constitute a breach of any conditions in this Indenture or the Securities, as described herein or in any indenture supplemental hereto;

 

(iv)          such non-payment will not give any Holders or any other person a right to apply for a Winding-Up, to place the Company in administration or to seek the appointment of a receiver, receiver and manager, liquidator or provisional liquidator to the Company or exercise any remedies in respect of the Securities; and

 

(v)           such non-payment will not constitute an event of default under the indenture (this Indenture does not contain any events of default).

 

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Neither the Holders nor any other person shall have any rights to receive any additional interest or compensation as a result of such non-payment and any rights of the Holders to receive interest on the Outstanding Principal Amount of such Securities shall terminate mandatorily and automatically upon Conversion or Write-off as set forth under Section 5.2 of this Indenture.

 

Section 4.7.                                  Restrictions in the Case of Non-Payment of Interest .  (a) Subject to Section 4.7(b) of this Indenture, if for any reason an interest payment has not been paid in full on the relevant Interest Payment Date, the Company must not:

 

(i)                                      determine or pay any Dividends; or

 

(ii)                                   undertake any discretionary Buy Back or Capital Reduction,

 

unless the amount of the unpaid interest payment is paid in full within 20 Business Days of the relevant Interest Payment Date or:

 

(iii)                                the Securities have been Converted, Written-off or redeemed;

 

(iv)                               on a subsequent Interest Payment Date, an interest payment for the subsequent interest period is paid in full; or

 

(v)                                  a Special Resolution of the Holders has been passed approving such action,

 

and, in respect of the actions contemplated by paragraphs (iii), (iv) and (v) above, APRA does not otherwise object.

 

(b)                                  The restrictions in Section 4.7(a) of this Indenture do not apply in connection with:

 

(i)                                      any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants of the Company or any member of the Group; or

 

(ii)                                   the Company or any of its controlled entities (within the meaning of Section 50AA of the Australian Corporations Act) purchasing shares in the Company in connection with transactions for the account of customers of the Company or any of its controlled entities (within the meaning of Section 50AA of the Australian Corporations Act) or in connection with the distribution or trading of shares in the Company in the ordinary course of business (such distribution or trading of shares in the ordinary course of business is subject to the prior written approval of APRA); or

 

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(iii)                                to the extent that at the time an interest payment has not been paid on the relevant Interest Payment Date, the Company is legally obliged to pay on or after that date a Dividend or complete on or after that date a Buy Back or Capital Reduction.

 

Section 4.8.                                  Clawback .  Each Holder (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 of this Indenture.

 

Section 4.9.                                  Other Provisions .  Each Holder (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 Sections 4.2 and 4.4 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, that it must not exercise its voting rights or other rights as an unsecured creditor in the Winding-Up of the Company in any jurisdiction until after all Senior Creditors have been paid in full or otherwise to defeat, negate or in any way challenge the enforceability of the subordination provisions of Sections 4.2 and 4.4 of this Indenture;

 

(c)                                   that the debt subordination effected by the provisions of Sections 4.2 and 4.4 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; and

 

(d)                                  that it does not have, and waives to the maximum extent permitted by law, any entitlement to interest under section 563B of the Australian Corporations Act to the extent that a holder of a Preference Share would not be entitled to such interest.

 

No consent of any Senior Creditor shall be required for any amendment of the provisions of Sections 4.2 and 4.4 of this Indenture in relation to any Outstanding Securities.

 

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ARTICLE V

 

TRIGGER EVENT, CONVERSION AND WRITE-OFF

 

Section 5.1.           Trigger Event .  (a) If a 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:

 

(A)                                in the case of a Capital Trigger Event, subject to the provisions described in Section 5.1(b) of this Indenture, all or some of the Securities (or a percentage of the Outstanding Principal Amount of each Security), such that the aggregate Outstanding Principal Amount of all of the 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 as described in Section 5.1(b) of this Indenture, is sufficient to increase each relevant Common Equity Capital Ratio of the Company to above 5.125%, as determined by the Company in consultation with APRA; or

 

(B)                                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 of the Securities (or a percentage of the Outstanding Principal Amount of each Security), such that the aggregate Outstanding Principal Amount of all of the 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 of the 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); or

 

(C)                                if paragraph (b) of the definition of “Non-Viability Trigger Event” applies, all of the Securities.

 

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(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 any other Relevant Securities whose terms require them to be converted, written-off or written-down before Conversion or Write-off of the Securities; and

 

(ii)                                   second, if conversion, write-off or write-down of those Relevant Securities is not sufficient to satisfy the requirements of Section 5.1(a)(ii)(A) or 5.1(a)(ii)(B), as applicable, Convert or Write-off (in the case of the Securities) and convert, write-off or write-down (in the case of any other Relevant 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 the outstanding principal amount of all other Relevant Securities whose terms require or permit them to be converted, written-off or written-down in that manner (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 Security or other Relevant Securities remaining on issue, and the need to effect the conversion, write-off or write-down  immediately).  If the currency of the principal amount of such Relevant 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 Trigger Event occurs:

 

(i)                                      the Securities or the percentage of the Outstanding Principal Amount of each Security determined pursuant to Section 5.1(b) of this Indenture shall be Converted or Written-off immediately upon the occurrence of the Trigger Event pursuant to Sections 5.1 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 the affected Securities pursuant to Sections 1.6 and 3.8 of this Indenture and ASX as soon as practicable that a Trigger Event has occurred and that Conversion or Write-off has occurred on the Trigger Event Date;

 

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(iii)                                the notice must specify ( A ) the 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 of the 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.

 

(d)                                  If clause (a) of the definition of “Capital Trigger Event” applies, the Company must immediately notify APRA in writing of its determination.

 

Section 5.2.                                  Automatic Conversion or Write-off upon the Occurrence of a Trigger Event .  If a Trigger Event has occurred and all or some of the 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 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 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 the 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

 

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any appropriate procedural steps to effect such Conversion, including updating the Ordinary Share register); and

 

(c)                                   a Holder of the 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 the Outstanding Principal Amount and any interest), except such Holder’s entitlement, if any, to the Securities which have not been required to be Converted or Written-off or the 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 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 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 and Outstanding Principal Amount 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 Trigger Event Date (“ Write-off ”; “ Written-off ” shall have a corresponding meaning); and

 

(d)                                  the Outstanding Principal Amount of such Securities shall be reduced on the 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 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 (including each holder of beneficial interests

 

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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 Section 6.10(b) applies, it (or the Holder’s Nominee on its behalf) is obliged to accept Ordinary Shares upon Conversion notwithstanding anything that might otherwise affect a Conversion of the 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 Trigger Event Date and Conversion may result in disruption or failures in trading or dealings in the Securities;

 

(iii)                                it will not have any rights to vote in respect of any Conversion (whether as a Holder 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 Article 6 of this

 

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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 6.15 of this Indenture.

 

Section 5.6.                                  Scheduled Conversion .  The Company may provide for the scheduled Conversion of the Securities of a series in any indenture supplemental hereto for such series, provided always that scheduled Conversion must occur in accordance with the Prudential Standards.  For the avoidance of doubt, if any indenture supplemental hereto provides for scheduled Conversion, the conditions applying to scheduled Conversion as set forth and defined in such indenture supplement will not apply to Conversion as a result of a Trigger Event.

 

Section 5.7.                                  Conversion at the Option of the Company .  The Company may provide for the optional Conversion of the Securities of a series in any indenture supplemental hereto for such series, provided always that optional Conversion must occur in accordance with the Prudential Standards.  For the avoidance of doubt, if any indenture supplemental hereto provides for optional Conversion, the restrictions applying to optional Conversion as set forth and defined in such indenture supplement will not apply to Conversion as a result of a Trigger Event.

 

Section 5.8.                                  No Conversion at the Option of the Holders .  Holders do not have a right to request Conversion of their Securities at any time.

 

Section 5.9.                                  Priority of Early Conversion Obligations .  A Conversion or Write-off required because of a Trigger Event shall take place on the date, and in the manner set forth herein or in any indenture supplemental hereto, notwithstanding any other provision for Conversion, Write-off or redemption set forth herein or in such indenture supplement.

 

Section 5.10.                           No Rights before Conversion .  Before Conversion, a Security confers no rights on a Holder:

 

(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,

 

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

 

Section 5.11.                           Trustee’s Rights upon Conversion or Write-off .  (a) By its acquisition of the Securities, each Holder (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 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 that acquire the 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 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 (including each holder of beneficial interests in a Security in global form) acknowledges and agrees that, upon Conversion or Write-off of the Securities, ( i ) the Trustee shall not be required to take any further directions from such Holder (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 (or holder of beneficial interests in a Security in global form), ( ii ) 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 (or holder of beneficial interests in a Security in global form) and ( iii ) 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 of the Securities remain outstanding, then the Trustee’s duties under

 

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this Indenture shall remain applicable with respect to the remaining Outstanding Securities which have not been so Converted or Written-off.

 

ARTICLE VI

 

PROCEDURES FOR CONVERSION

 

Section 6.1.                                  Conversion .  On the Conversion 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 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:

 

Conversion Number for each Security

=

Outstanding Principal Amount of the Security (translated into Australian Dollars in accordance with paragraph (b) of the definition of Outstanding Principal Amount where the calculation date shall be the Conversion 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.

 

and where

 

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

 

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Maximum Conversion Number

=

Outstanding Principal Amount of the 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 Securities of a series)

 

 

Relevant Percentage x Issue Date VWAP

 

where:

 

Relevant Percentage means the number specified in any indenture supplemental hereto.

 

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 of the Securities are Converted following a 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 may (in the case of a Capital Trigger Event) and is likely to (in the case of a Non-Viability Trigger Event) 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 (including to payment of interest, if any, with respect to such Outstanding Principal Amount) 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 shall be deemed to have irrevocably directed that any amount scheduled to be paid 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.

 

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