UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT OF 1934
November 19, 2009
Commission File Number 1-10167
WESTPAC BANKING CORPORATION
(Translation of registrants name into English)
275 KENT STREET, SYDNEY, NEW SOUTH WALES 2000, AUSTRALIA
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F x |
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Form 40-F o |
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): o
Indicate by check mark whether the registrant by furnishing the information contained in this form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Act of 1934.
Yes o |
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No x |
If Yes is marked, indicate the file number assigned to the registrant in connection with Rule 12g3-2(b):82-
Incorporation by Reference
The exhibits attached to this Report on Form 6-K shall be incorporated by reference in Westpac Banking Corporations (the Registrant ) Registration Statement on Form F-3 (File No. 333-157381).
Index to Exhibits
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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WESTPAC BANKING CORPORATION |
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(Registrant) |
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Date: November19, 2009 |
By: |
/s/ Manuela Adl |
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Manuela Adl |
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SVP & Chief Operating Officer |
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Exhibit 1.1
Execution Copy
WESTPAC BANKING CORPORATION
US$2,000,000,000 2.25% Notes due November 19, 2012
US$2,000,000,000 4.875% Notes due November 19, 2019
Underwriting Agreement
November 16, 2009
Banc of America Securities LLC
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
As Representatives of the several Underwriters listed in Schedule 1 hereto
c/o Banc of America Securities LLC
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Westpac Banking Corporation, (A.B.N. 33 007 457 141) (the Bank), a company incorporated in the Commonwealth of Australia (Australia) under the Corporations Act 2001 of Australia (the Corporations Act) and registered in New South Wales, proposes to issue and sell to the several Underwriters named in Schedule 1 hereto (the Underwriters), for whom each of you is acting as representative (the Representatives), US$2,000,000,000 principal amount of its 2.25% Notes due November 19, 2012 (the 2012 Notes) and US$2,000,000,000 principal amount of its 4.875% Notes due November 19, 2019 (the 2019 Notes and, together with the 2012 Notes, the Securities). The Securities will be issued under the Senior Indenture, dated as of July 1, 1999 (the Base Indenture), between the Bank and The Bank of New York Mellon as successor to The Chase Manhattan Bank (the Trustee), as supplemented and amended by the First Supplemental Indenture, dated as of August 27, 2009, between the Bank and the Trustee (the First Supplemental Indenture) and as further supplemented by the Second Supplemental Indenture, to be dated as of November 19, 2009, between the Bank and the Trustee, providing for the Securities (the Second Supplemental Indenture; the Base Indenture, as supplemented and amended by the First Supplemental Indenture and as further supplemented by the Second Supplemental Indenture, is referred to herein as the Indenture).
The Bank has prepared and filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the Securities Act), a registration statement on Form F-3 (File No. 333-157381), including a prospectus, relating to the Securities. Such registration statement, as amended as of the Effective Date (as defined below), including the Prospectus (as defined below), all exhibits thereto (excluding the Form T-1, except where otherwise stated) and the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement as of the Effective Date (Rule 430 Information), is referred to herein as the Registration Statement; Effective Date means the effective date of the Registration Statement pursuant to Rule 430B under the Securities Act for purposes of liability under Section 11 of the Securities Act of the Bank or the Underwriters with respect to the offering of the Securities; Base Prospectus means the base prospectus filed as part of the Registration Statement, in the form in which it has most recently been filed with the Commission on or prior to the date hereof, relating to the Securities; Preliminary Prospectus means the Base Prospectus, as supplemented by the preliminary prospectus supplement specifically relating to the Securities, in the form in which it has most recently been filed with the Commission pursuant to Rule 424(b) under the Securities Act and provided to the Representatives for use by the Underwriters in connection with the offering of the Securities; Prospectus means the Base Prospectus, as supplemented by the definitive prospectus supplement specifically relating to the Securities, in the form in which it is filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with Section 3(a) hereof, including any documents incorporated by reference therein as of the date of such filing. If the Bank has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the Rule 462 Registration Statement), then any reference herein to the term Registration Statement shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 6 of Form F-3 under the Securities Act, as of the Effective Date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to amend, amendment or supplement with respect to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
As of 5:02 p.m., New York City time (the Time of Sale), the Bank had prepared the following information: a Preliminary Prospectus dated November 16, 2009, including all documents incorporated therein by reference, whether any such incorporated document is filed before or after the Preliminary Prospectus, so long as the incorporated document is filed before the Time of Sale, and each free-writing prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto as constituting part of the Time of Sale Information (collectively, the Time of Sale Information).
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(A) (I) the aggregate amount payable on acceptance of the offer for the 2012 Notes or the 2019 Notes, as the case may be, by each offeree or invitee for the 2012 Notes or the 2019 Notes, as applicable, is a minimum amount (disregarding amounts, if any, lent by the Bank or other person offering the Securities or an associate (as defined in Division 2 of Part 1.2 of the Corporations Act) of either of them of A$500,000 (or its equivalent in an alternate currency); or (II) the offer or invitation is otherwise an offer or invitation for which no disclosure is required to be made under Part 6D.2 of the Corporations Act;
(B) the offer, invitation or distribution complies with all applicable Australian laws and regulations in relation to the offer, invitation or distribution; and
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(C) such action does not require any document to be lodged with the Australian Securities and Investments Commission.
(ii) it will solicit offers to purchase the Securities, and each of the Securities acquired by it as principal will be acquired, on the basis of the information contained in, and as a result of negotiations initiated following distribution of, the Registration Statement, the Time of Sale Information and the Prospectus.
(iii) it will offer such Securities for sale within 30 days of their issue date:
(A) to at least 10 persons each of whom at the time of the offer (I) was carrying on a business of providing finance, or investing in or dealing in securities, in the course of operating in financial markets and (II) was not known, or suspected, by the employees of each of the Underwriters directly involved in the sale to be an associate (as defined in Section 128F of the Tax Act)) of any other person covered by this subsection (d)(iii)(A);
(B) to at least 100 persons who it would be reasonable to regard as either having acquired debentures or debt interests (such as the Securities) in the past or is likely to be interested in acquiring debentures (such as the Securities); or
(C) as a result of negotiations being initiated by the Underwriters in electronic form (such as Reuters or the Bloomberg system or any other electronic financial information system) which is used by financial markets for dealing in debentures (such as the Securities) in accordance with Section 128F(3)(d) of the Tax Act.
(iv) in connection with the primary distribution of the Securities, will not sell any of the Securities (or any interest in any of the Securities) to any person, if, at the time of such sale, its employees directly involved in the sale knew that, as a result of the sale, such Securities would be acquired (directly or indirectly) by an Offshore Associate (other than in the capacity of dealer, manager or underwriter in relation to the placement of the Securities or in the capacity of a clearing house, custodian, funds manager or responsible entity of an Australian registered scheme). Offshore Associate means any party listed in Exhibit D attached hereto.
(v) it will provide, within 14 days after the receipt of the Banks request, such information and documentation which is reasonably requested by the Bank in relation to its marketing efforts to assist the Bank demonstrate (to the extent necessary) that the public offer test under Section 128F of the Tax Act has been satisfied, provided, however, that no Underwriter shall be obliged to disclose (I) any information which reveals the identity of any person to whom the offer or invitation was made or any purchaser of any Securities or any information from which such identity would be capable of being ascertained, (II) any information which is customarily regarded by it as confidential or the disclosure of which would be contrary or prohibited by any relevant
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law, regulation, directive or by any agreement or undertaking or (III) any information or documentation after a period of 7 years from the lodgement of the income tax return by the Bank for the financial year ending immediately following the issue date of the relevant issue of the Securities.
(vi) it is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering and will promptly notify the Bank if any such proceeding against it is initiated during the Prospectus Delivery Period (as defined in Section 3(e)).
(vii) it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any free writing prospectus, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Bank and not incorporated by reference into the Registration Statement and any press release issued by the Bank) in connection with any offer relating to the securities other than (i) a free writing prospectus that, solely as a result of use by such underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 1(a)(iii) or Section 3(b) hereof (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter and approved by the Bank in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an Underwriter Free Writing Prospectus). Notwithstanding the foregoing, prior to the preparation of the Final Term Sheet (as defined below) the Underwriters may use one or more term sheets substantially in the form of Annex B hereto describing the preliminary terms of the Securities or their offering. The Final Term Sheet shall mean the term sheet in the form of Annex B hereto prepared by the Bank and approved by the Representatives setting forth the final terms of the Securities.
(viii) each Underwriter severally represents, warrants and agrees that: in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), it has not made and will not make an offer of the Securities to the public in that Relevant Member State, except that it may make an offer of Securities to the public in that Relevant Member State at any time under the following exemptions under the Prospectus Directive (as defined below), if they have been implemented in that Relevant Member State: (i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (ii) to any legal entity which has two or more of the following: (1) an average of at least 250 employees during the last financial year, (2) a total balance sheet of more than 43,000,000 and (3) an annual net turnover of more than 50,000,000, as shown in its last annual or consolidated accounts; (iii) to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the Representatives for any such offer; or (iv) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Securities to the public shall result in a requirement for the publication by the Bank or the Underwriters of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this
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preceding paragraph, the expression offer of Securities to the public in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
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provided, however , that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Bank by any Underwriter through the Representatives expressly for use in the Indemnified Disclosure.
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For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, each director of the Bank, each officer of the Bank who signed the Registration Statement, and each person, if any, who controls the Bank within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Bank. The Underwriters respective obligations to contribute pursuant to this Section 7 are several in proportion to the principal amount of securities sold to or through each Underwriter and not joint.
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(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Bank as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Bank shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriters pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Bank as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Bank shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Bank,
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except that the Bank will continue to be liable for the payment of expenses as set forth in Section 4 hereof and except that the provisions of Sections 6 and 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Bank or any non-defaulting Underwriter for damages caused by its default.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
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Very truly yours, |
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WESTPAC BANKING CORPORATION |
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By: |
/s/ Manuela Adl |
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Name: Manuela Adl |
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Title: Senior Vice President and |
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Chief Operating Officer |
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CONFIRMED AND ACCEPTED, as of the date first above written:
Banc of America Securities LLC |
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Citigroup Global Markets Inc. |
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Deutsche Bank Securities Inc. |
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As Representatives of the several Underwriters |
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listed in Schedule 1 hereto |
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By: |
BANC OF AMERICA SECURITIES LLC |
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By: |
/s/ Caspar Bentinck |
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Name: Caspar Bentinck |
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Title: Managing Director |
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By: |
CITIGROUP GLOBAL MARKETS INC. |
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By: |
/s/ Chandru M. Harjani |
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Name: Chandru M. Harjani |
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Title: Vice President |
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By: |
DEUTSCHE BANK SECURITIES INC. |
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By: |
DEUTSCHE BANK SECURITIES INC. |
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By: |
/s/ Tom Criqui |
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By: |
/s/ Nigel W. H. Cree |
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Name: Tom Criqui |
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Name: Nigel W. H. Cree |
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Title: Director |
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Title: Managing Director |
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With respect to the 2.25% Notes due November 19, 2012:
Underwriter |
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Principal Amount |
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Banc of America Securities LLC |
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$ |
666,667,000 |
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Citigroup Global Markets Inc. |
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$ |
666,667,000 |
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Deutsche Bank Securities Inc. |
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$ |
666,666,000 |
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Total |
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$ |
2,000,000,000 |
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With respect to the 4.875% Notes due November 19, 2019:
Underwriter |
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Principal Amount |
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Banc of America Securities LLC |
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$ |
666,667,000 |
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Citigroup Global Markets Inc. |
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$ |
666,666,000 |
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Deutsche Bank Securities Inc. |
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$ |
666,667,000 |
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Total |
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$ |
2,000,000,000 |
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1-1
Exhibit 4.1
EXECUTION COPY
SECOND
SUPPLEMENTAL INDENTURE
between
WESTPAC BANKING CORPORATION
and
THE BANK OF NEW YORK MELLON
(as successor to The Chase Manhattan Bank)
as Trustee
Dated as of November 19, 2009
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE , dated as of November 19, 2009 (the Second Supplemental Indenture), between WESTPAC BANKING CORPORATION (ABN 33 007 457 141), a company incorporated in the Commonwealth of Australia under the Corporations Act 2001 of Australia and registered in New South Wales (the Company), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as successor to The Chase Manhattan Bank, as trustee (the Trustee).
RECITALS:
WHEREAS, the Company and The Chase Manhattan Bank are parties to a Senior Indenture, dated as of July 1, 1999 (the Base Indenture), relating to the issuance from time to time by the Company of Securities in one or more series as therein provided;
WHEREAS, the Trustee has succeeded The Chase Manhattan Bank as trustee under the Base Indenture;
WHEREAS, the Company and the Trustee entered into the First Supplemental Indenture, dated as of August 27, 2009 (the First Supplemental Indenture ; the Base Indenture, as supplemented and amended by the First Supplemental Indenture and as further supplemented by this Second Supplemental Indenture , is referred to herein as the Indenture), to supplement and amend certain provisions of the Base Indenture and to establish the forms and terms of a series of Securities as provided therein.
WHEREAS, Section 8.1(7) of the Base Indenture provides that the Company may enter into a supplemental indenture to establish the forms or terms of Securities of any series as permitted by Sections 2.1 and 3.1 therein;
WHEREAS, in connection with the issuance of the 2012 Notes and the 2019 Notes (each as defined herein), the Company has duly authorized the execution and delivery of this Second Supplemental Indenture to establish the forms and terms of the 2012 Notes and the 2019 Notes as hereinafter described ; and
WHEREAS, all conditions and requirements of the Base Indenture necessary to make this Second Supplemental Indenture a valid, binding and legal instrument in accordance with its terms have been performed and fulfilled by the parties hereto.
NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, receipt of which is hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General Definitions . For purposes of this Second Supplemental Indenture:
(a) Capitalized terms used herein without definition shall have the meanings specified in the Base Indenture;
(b) All references to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of the Base Indenture; and
(c) The terms herein, hereof, hereunder and other words of similar import refer to this Second Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.
ARTICLE II
THE 2012 NOTES
Section 2.01 Title of Securities . There shall be a series of Securities of the Company designated the 2.25% Notes due November 19, 2012 (the 2012 Notes ).
Section 2.02 Limitation of Aggregate Principal Amount . The aggregate principal amount of the 2012 Notes shall initially be limited to US$2,000,000,000. The Company may from time to time, without the consent of the Holders of the 2012 Notes, create and issue additional notes having the same terms and conditions as the 2012 Notes in all respects or in all respects except for issue date, issue price and, if applicable, the first date on which interest accrues and the first payment of interest thereon ( Additional 2012 Notes ). Additional 2012 Notes issued in this manner will be consolidated with, and will form a single series with, the 2012 Notes, unless such Additional 2012 Notes will not be treated as fungible with the 2012 Notes for U.S. federal income tax purposes. The 2012 Notes and any such Additional 2012 Notes would rank equally and ratably.
Section 2.03 Principal Payment Date . The principal amount of the 2012 Notes Outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on November 19, 2012, which date shall be the Stated Maturity of the 2012 Notes.
Section 2.04 Interest and Interest Rates . The 2012 Notes will bear interest at a rate of 2.25% per year from November 19, 2009, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, and interest on the 2012 Notes shall be payable semi-annually in arrears on May 19 and November 19 of each year, beginning on May 19, 2010 and ending on November 19, 2012, to the Holders
of record on the preceding May 4 or November 4 (whether or not a Business Day), as the case may be. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period less than a full interest period shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual days elapsed in a partial month in such period. Any payment of principal, premium or interest required to be made on an Interest Payment Date that is not a Business Day shall be made on the next succeeding Business Day, and no interest will accrue on that payment for the period from and after such Interest Payment Date to the date of payment on the next succeeding Business Day. For purposes of the 2012 Notes, Business Day shall mean any calendar day that is not a Saturday, Sunday or legal holiday in New York, London or Sydney and on which commercial banks are open for business in New York, London and Sydney.
Section 2.05 Place of Payment . The Place of Payment where the 2012 Notes may be presented or surrendered for payment, where the 2012 Notes may be surrendered for registration of transfer or exchange and where notices and demand to or upon the Company in respect of the 2012 Notes and the Indenture may be served initially shall be the Corporate Trust Office of the Trustee maintained for that purpose in the Borough of Manhattan, City of New York.
Section 2.06 Redemption . The Company shall not have the right to redeem the 2012 Notes other than pursuant to Section 10.8 of the Base Indenture.
Section 2.07 No Sinking Fund . The 2012 Notes are not entitled to the benefit of any sinking fund.
Section 2.08 Form . The 2012 Notes shall be issued initially as Registered Securities (as defined in the Base Indenture) in the form of one or more permanent notes in global form, without coupons, substantially in the form attached hereto as Exhibit A, deposited with The Bank of New York Mellon, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as herein provided.
Section 2.09 Denomination . The 2012 Notes shall be issuable only in denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. The 2012 Notes shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the Officers of the Company executing the same may determine with the approval of the Trustee.
Section 2.10 Depositary . The Depository Trust Company shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Base Indenture, and thereafter, Depositary shall mean or include such successor.
Section 2.11 Defeasance; Discharge . The provisions of Sections 4.3, 4.4, 4.5
and 4.6 of the Base Indenture will apply to the 2012 Notes.
ARTICLE III
THE 2019 NOTES
Section 3.01 Title of Securities . There shall be a series of Securities of the Company designated the 4.875% Notes due November 19, 2019 (the 2019 Notes ).
Section 3.02 Limitation of Aggregate Principal Amount . The aggregate principal amount of the 2019 Notes shall initially be limited to US$2,000,000,000. The Company may from time to time, without the consent of the Holders of the 2019 Notes, create and issue additional notes having the same terms and conditions as the 2019 Notes in all respects or in all respects except for issue date, issue price and, if applicable, the first date on which interest accrues and the first payment of interest thereon ( Additional 2019 Notes ). Additional 2019 Notes issued in this manner will be consolidated with, and will form a single series with, the 2019 Notes, unless such Additional 2019 Notes will not be treated as fungible with the 2019 Notes for U.S. federal income tax purposes. The 2019 Notes and any such Additional 2019 Notes would rank equally and ratably.
Section 3.03 Principal Payment Date . The principal amount of the 2019 Notes Outstanding (together with any accrued and unpaid interest) shall be payable in a single installment on November 19, 2019, which date shall be the Stated Maturity of the 2019 Notes.
Section 3.04 Interest and Interest Rates . The 2019 Notes will bear interest at a rate of 4.875% per year from November 19, 2009, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, and interest on the 2019 Notes shall be payable semi-annually in arrears on May 19 and November 19 of each year, beginning on May 19, 2010 and ending on November 19, 2019, to the Holders of record on the preceding May 4 or November 4 (whether or not a Business Day), as the case may be. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period less than a full interest period shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual days elapsed in a partial month in such period. Any payment of principal, premium or interest required to be made on an Interest Payment Date that is not a Business Day shall be made on the next succeeding Business Day, and no interest will accrue on that payment for the period from and after such Interest Payment Date to the date of payment on the next succeeding Business Day. For purposes of the 2019 Notes, Business Day shall mean any calendar day that is not a Saturday, Sunday or legal holiday in New York, London or Sydney and on which commercial banks are open for business in New York, London and Sydney.
Section 3.05 Place of Payment . The Place of Payment where the 2019 Notes may be presented or surrendered for payment, where the 2019 Notes may be surrendered
for registration of transfer or exchange and where notices and demand to or upon the Company in respect of the 2019 Notes and the Indenture may be served initially shall be the Corporate Trust Office of the Trustee maintained for that purpose in the Borough of Manhattan, City of New York.
Section 3.06 Redemption . The Company shall not have the right to redeem the 2019 Notes other than pursuant to Section 10.8 of the Base Indenture.
Section 3.07 No Sinking Fund . The 2019 Notes are not entitled to the benefit of any sinking fund.
Section 3.08 Form . The 2019 Notes shall be issued initially as Registered Securities (as defined in the Base Indenture) in the form of one or more permanent notes in global form, without coupons, substantially in the form attached hereto as Exhibit B, deposited with The Bank of New York Mellon, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as herein provided.
Section 3.09 Denomination . The 2019 Notes shall be issuable only in denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. The 2019 Notes shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the Officers of the Company executing the same may determine with the approval of the Trustee.
Section 3.10 Depositary . The Depository Trust Company shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the applicable provisions of the Base Indenture, and thereafter, Depositary shall mean or include such successor.
Section 3.11 Defeasance; Discharge . The provisions of Sections 4.3, 4.4, 4.5 and 4.6 of the Base Indenture will apply to the 2019 Notes.
ARTICLE IV
MISCELLANEOUS
Section 4.01 Integral Part; Effect of Supplement on Indenture . This Second Supplemental Indenture constitutes an integral part of the Indenture. Each of the Base Indenture and the First Supplemental Indenture shall remain in full force and effect as executed.
Section 4.02 Adoption, Ratification and Confirmation . The Indenture, as supplemented by this Second Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.
Section 4.03 Trustee Not Responsible for Recitals . The recitals in this Second
Supplemental Indenture shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or adequacy of this Second Supplemental Indenture.
Section 4.04 Counterparts . This Second Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original but such counterparts shall together constitute but one instrument.
Section 4.05 Separability . In case any provision of this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 4.06 Governing Law . This Second Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York, including all matters of construction, validity and performance.
[signature page follows]
IN WITNESS WHEREOF, the Company and the Trustee have executed this Second Supplemental Indenture as of the date first above written.
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WESTPAC BANKING CORPORATION |
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/s/ Manuela Adl |
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Name: Manuela Adl |
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Title: Chief Operating Officer |
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THE BANK OF NEW YORK MELLON, as Trustee |
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/s/ Joellen McNamara |
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Name: Joellen McNamara |
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Title: Senior Associate |
EXHIBIT A
(FORM OF FACE OF NOTE)
[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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](1)
No. [ · ] |
CUSIP No. 961214BJ1 |
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ISIN No. US961214BJ11 |
WESTPAC BANKING CORPORATION
2.25 % NOTE DUE NOVEMBER 19, 2012
WESTPAC BANKING CORPORATION, a company incorporated in the Commonwealth of Australia under the Corporations Act 2001 of Australia and registered in New South Wales (the Company ), which term includes any successor corporation
(1) Insert in Global Notes only
under the Indenture hereinafter referred to, for value received, hereby promises to pay to [ · ] or registered assigns, the principal sum of [ · ] (US$[ · ]) on November 19, 2012 (the Stated Maturity ). The Notes will bear interest at a rate of 2.25 % per year from November 19 , 2009, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, and interest on the Notes shall be payable semi-annually in arrears on May 19 and November 19 of each year (each such date, an Interest Payment Date ), beginning on May 19 , 2010 and ending on November 19 , 20 12 . Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period less than a full interest period shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual days elapsed in a partial month in such period. Any payment of principal, premium or interest required to be made on an Interest Payment Date that is not a Business Day shall be made on the next succeeding Business Day, and no interest will accrue on that payment for the period from and after such Interest Payment Date to the date of payment on the next succeeding Business Day. For purposes hereof, Business Day shall mean any calendar day that is not a Saturday, Sunday or legal holiday in New York, London or Sydney and on which commercial banks are open for business in New York, London and Sydney.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to or be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Note are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed on this day of , 2009.
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WESTPAC BANKING CORPORATION |
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and issued under the within-mentioned Indenture.
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The Bank of New York Mellon, as Trustee |
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Dated: |
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Authorized Signatory |
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of securities of the Company, issued and to be issued in one or more series under and pursuant to a Senior Indenture, dated as of July 1, 1999 (the Base Indenture ), duly executed and delivered between the Company and The Bank of New York Mellon, as successor to The Chase Manhattan Bank, as trustee (the Trustee , which term includes any successor trustee under the Indenture), as supplemented and amended by the First Supplemental Indenture, dated as of August 27, 2009, between the Company and the Trustee (the First Supplemental Indenture ), and as further supplemented by the Second Supplemental Indenture, dated as of November 19, 2009, between the Company and the Trustee (the Second Supplemental Indenture ; the Base Indenture, as so supplemented and amended by the First Supplemental Indenture and as so further supplemented by the Second Supplemental Indenture , the Indenture ), to which Indenture and all Indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. This Note is one of a series of securities designated on the face hereof (the Notes ). The Notes are issued pursuant to the Indenture and are limited in aggregate principal amount to US$2,000,000,000; provided, however, that the Company may from time to time, without the consent of the Holders of the Notes, create and issue additional notes having the same terms and conditions as the Notes in all respects or in all respects except for issue date, issue price and, if applicable, the first date on which interest accrues and the first payment of interest thereon. Additional notes issued in this manner will be consolidated with, and will form a single series with, the Notes, unless such additional notes will not be treated as fungible with the Notes for U.S. federal income tax purposes. The Notes and any such additional notes would rank equally and ratably.
In accordance with Section 10.8 of the Base Indenture, pursuant to the procedure set forth in Article X of the Base Indenture, the Notes may be redeemed at the option of the Company, in whole but not in part, at any time within 90 days following the occurrence of a Tax Event (as defined herein) at a Redemption Price equal to 100% of the principal amount thereof, plus accrued interest to but excluding the Redemption Date; provided, however, that, if at the time there is available to the Company the opportunity to eliminate, within the 90-day period, the Tax Event by taking some ministerial action, such as filing a form or making an election, or pursuing some other similar reasonable measure that in the Companys sole judgment has or will cause no adverse effect on the Company or any of its Subsidiaries or Affiliates and will involve no material cost, the Company will pursue that measure in lieu of redemption. Tax Event means that the Company has requested and received an opinion of competent tax counsel to the effect that there has been (1) an amendment to, change in or announced proposed change in the laws or regulations under those laws of the Commonwealth of Australia or any political subdivision or authority thereof or therein; (2) a judicial decision interpreting, applying or
clarifying those laws or regulations; (3) an administrative pronouncement or action that represents an official position, including a clarification of an official position, of the governmental authority or regulatory body making the administrative pronouncement or taking any action; or (4) a threatened challenge asserted in connection with an audit of the Company, or any of its Subsidiaries, or a threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes, which amendment or change is adopted or which proposed change, decision or pronouncement is announced or which action, clarification or challenge occurs on or after November 16, 2009, following which there is more than an insubstantial risk that any payment on the Notes is, or will be, subject to withholding or deduction in respect of any taxes, assessments or other governmental charges.
Notice of any such redemption of the Notes will be given to Holders of the Notes at their addresses, as shown in the Register, not more than 60 nor less than 30 days prior to the date fixed for redemption, and otherwise in accordance with Article X of the Base Indenture.
The Indenture contains provisions for defeasance and covenant defeasance at any time of the indebtedness evidenced by this Note upon compliance by the Company with certain conditions set forth therein.
If an Event of Default shall have occurred and be continuing, the principal hereof may be declared, and upon such declaration become, due and payable immediately, in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture contains provisions permitting the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes, on behalf of all of the Holders of the Notes, to waive any Event of Default under the Indenture and its consequences, subject to Section 5.7 of the Base Indenture.
In accordance with Section 9.8 of the Base Indenture, all payments in respect of this Note shall be made without withholding or deduction for, or on account of, any taxes, assessments or other governmental charges (relevant tax) imposed or levied by or on behalf of the Commonwealth of Australia or any political subdivision or authority in or of the Commonwealth of Australia, unless the withholding or deduction is required by law. In that event, the Company will pay such additional amounts (Additional Amounts) as may be necessary so that the net amount received by the Holder of this Note, after such withholding or deduction, will equal the amount that the Holder would have received in respect of this Note without such withholding or deduction. However, the Company will pay no Additional Amounts for or on account of:
(1) any relevant tax that would not have been imposed but for the fact that the Holder, or the beneficial owner, of this Note was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Commonwealth of Australia or any political
subdivision or taxing authority thereof or therein or otherwise had some connection with the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein other than merely holding this Note, or receiving payments under this Note;
(2) any relevant tax that would not have been imposed but for the fact that the Holder, or the beneficial owner, of this Note presented this Note for payment in the Commonwealth of Australia, unless the Holder, or the beneficial owner, was required to present this Note for payment and it could not have been presented for payment anywhere else;
(3) any relevant tax that would not have been imposed but for the fact that the Holder, or the beneficial owner, of this Note presented this Note for payment more than 30 days after the date such payment became due and was provided for, whichever is later, except to the extent that the Holder or beneficial owner would have been entitled to the additional amounts on presenting this Note for payment on any day during that 30 day period;
(4) any relevant tax that is an estate, inheritance, gift, sale, transfer, personal property or similar tax;
(5) any relevant tax which is payable otherwise than by withholding or deduction;
(6) any relevant tax that would not have been imposed if the Holder, or the beneficial owner, of this Note complied with the Companys request to provide information concerning his, her or its nationality, residence or identity or to make a declaration, claim or filing or satisfy any requirement for information or reporting that is required to establish the eligibility of the Holder, or the beneficial owner, of this Note to receive the relevant payment without (or at a reduced rate of) withholding or deduction for or on account of any such relevant tax;
(7) any relevant tax that would not have been imposed but for the Holder, or the beneficial owner, of this Note being an associate of the Company for purposes of section 128F(6) of the Income Tax Assessment Act 1936 of the Commonwealth of Australia (the Australian Tax Act);
(8) any relevant tax that is imposed or withheld as a consequence of a determination having been made under Part IVA of the Australian Tax Act (or any modification thereof or provision substituted therefor) by the Australian Commissioner of Taxation that such relevant tax is payable in circumstances where the Holder, or the beneficial owner, of this Note is a party to or participated in a scheme to avoid such relevant tax which the Company was not a party to;
(9) any relevant tax that is imposed pursuant to European Council Directive 2003/48/EC (the Directive) or any law implementing or complying with, or introduced in order to conform to, such Directive, or any agreement entered into by a Member State of the European Union with (A) any other state or (B) any relevant, dependent or associated territory of any Member State of the European Union providing for measures equivalent to, or the same as those provided for by such Directive; or
(10) any combination of the foregoing.
In addition, the Company will pay no Additional Amounts to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the payment in respect of this Note to the extent such payment would, under the laws of the Commonwealth of Australia or any political subdivision or authority of or in the Commonwealth of Australia, be treated as being derived or received for tax purposes by a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to Additional Amounts had it been the Holder of this Note.
Any reference in this Note to principal or interest shall be deemed to also refer to any Additional Amount that may be payable as provided above.
The Indenture contains provisions permitting the Company and the Trustee, with the written consent of the Holders of not less than a majority in aggregate principal amount (calculated as provided in the Indenture) of the Outstanding Securities of each series adversely affected thereby to add any provisions to or to change or eliminate any provisions of the Indenture or any supplemental indenture or to modify the rights of the Holders of the Securities of such series, provided that, without the consent of the Holder of each such Security so affected, no such modification shall (a) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount of any Security or the rate of interest thereon, or change the coin or currency in which any Security or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity of any Security (or, in the case of redemption, on or after the Redemption Date), or (b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such amendment or modification, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture, or (c) change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 9.2 of the Base Indenture, or (d) except to the extent provided in Section 8.1(9) of the Base Indenture, make any change in Section 5.2, 5.7, 5.10 or 8.2 of the Base Indenture except to increase any percentage or to provide that certain other provisions of the Indenture cannot be modified or waived except with the consent of the Holders of each Outstanding Security
affected thereby. Any such consent given by the Holder of this Note shall be conclusive and binding upon such Holder and all future Holders of this Note and of any Notes issued on registration hereof, the transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective time, at the rate and in the coin or currency herein prescribed.
Upon surrender for registration of transfer of this Note, the Company shall execute and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, a new Note or Notes of like tenor and authorized denominations for an equal aggregate principal amount in exchange herefor, subject to the limitations provided in the Indenture. Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Note is registered as the owner hereof for all purposes (subject to the provisions hereof with respect to determination of the person to whom interest is payable).
Reference is made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Notes are to be authenticated and delivered.
No past, present or future director, officer, employee, agent, member, manager, trustee or stockholder, as such, of the Company or any successor Person shall have any liability for any obligations of the Company or any successor Person, either directly or through the Company or any successor Person, under the Notes 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 Note, each Holder agrees to the provisions of Section 1.13 of the Base Indenture and waives and releases all such liability. Such waiver and release shall be part of the consideration for the issue of the Notes.
The Notes of this series shall be issuable only in denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. [This Global Note is exchangeable for Notes in definitive form only under certain limited circumstances set forth in the Indenture.](2) At the option of the Holder, the Notes (except a Note in global form) may be exchanged for other Notes, of any authorized denominations and of a like aggregate principal amount containing identical terms and provisions, upon surrender of the Notes to be exchanged at such office or agency.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS.
(2) Insert in Global Notes only
TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer such Note on the books of the Company with full power of substitution in the premises.
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EXHIBIT B
(FORM OF FACE OF NOTE)
[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.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](3)
No. [ · ] |
CUSIP No. 961214BK8 |
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ISIN No. US961214BK83 |
WESTPAC BANKING CORPORATION
4.875 % NOTE DUE NOVEMBER 19, 2019
WESTPAC BANKING CORPORATION, a company incorporated in the Commonwealth of Australia under the Corporations Act 2001 of Australia and registered in New South Wales (the Company ), which term includes any successor corporation
(3) Insert in Global Notes only
under the Indenture hereinafter referred to, for value received, hereby promises to pay to [ · ] or registered assigns, the principal sum of [ · ] (US$[ · ]) on November 19, 2019 (the Stated Maturity ). The Notes will bear interest at a rate of 4.875 % per year from November 19 , 2009, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, and interest on the Notes shall be payable semi-annually in arrears on May 19 and November 19 of each year (each such date, an Interest Payment Date ), beginning on May 19 , 2010 and ending on November 19 , 2019. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. The amount of interest payable for any period less than a full interest period shall be computed on the basis of a 360-day year consisting of twelve 30-day months and the actual days elapsed in a partial month in such period. Any payment of principal, premium or interest required to be made on an Interest Payment Date that is not a Business Day shall be made on the next succeeding Business Day, and no interest will accrue on that payment for the period from and after such Interest Payment Date to the date of payment on the next succeeding Business Day. For purposes hereof, Business Day shall mean any calendar day that is not a Saturday, Sunday or legal holiday in New York, London or Sydney and on which commercial banks are open for business in New York, London and Sydney.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to or be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Note are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed on this day of , 2009.
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WESTPAC BANKING CORPORATION |
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and issued under the within-mentioned Indenture.
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The Bank of New York Mellon, as Trustee |
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Authorized Signatory |
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(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of securities of the Company, issued and to be issued in one or more series under and pursuant to a Senior Indenture, dated as of July 1, 1999 (the Base Indenture ), duly executed and delivered between the Company and The Bank of New York Mellon, as successor to The Chase Manhattan Bank, as trustee (the Trustee , which term includes any successor trustee under the Indenture), as supplemented and amended by the First Supplemental Indenture, dated as of August 27, 2009, between the Company and the Trustee (the First Supplemental Indenture ), and as further supplemented by the Second Supplemental Indenture, dated as of November 19, 2009, between the Company and the Trustee (the Second Supplemental Indenture ; the Base Indenture, as so supplemented and amended by the First Supplemental Indenture and as so further supplemented by the Second Supplemental Indenture , the Indenture ), to which Indenture and all Indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. This Note is one of a series of securities designated on the face hereof (the Notes ). The Notes are issued pursuant to the Indenture and are limited in aggregate principal amount to US$2,000,000,000; provided, however, that the Company may from time to time, without the consent of the Holders of the Notes, create and issue additional notes having the same terms and conditions as the Notes in all respects or in all respects except for issue date, issue price and, if applicable, the first date on which interest accrues and the first payment of interest thereon. Additional notes issued in this manner will be consolidated with, and will form a single series with, the Notes, unless such additional notes will not be treated as fungible with the Notes for U.S. federal income tax purposes. The Notes and any such additional notes would rank equally and ratably.
In accordance with Section 10.8 of the Base Indenture, pursuant to the procedure set forth in Article X of the Base Indenture, the Notes may be redeemed at the option of the Company, in whole but not in part, at any time within 90 days following the occurrence of a Tax Event (as defined herein) at a Redemption Price equal to 100% of the principal amount thereof, plus accrued interest to but excluding the Redemption Date; provided, however, that, if at the time there is available to the Company the opportunity to eliminate, within the 90-day period, the Tax Event by taking some ministerial action, such as filing a form or making an election, or pursuing some other similar reasonable measure that in the Companys sole judgment has or will cause no adverse effect on the Company or any of its Subsidiaries or Affiliates and will involve no material cost, the Company will pursue that measure in lieu of redemption. Tax Event means that the Company has requested and received an opinion of competent tax counsel to the effect that there has been (1) an amendment to, change in or announced proposed change in the laws or regulations under those laws of the Commonwealth of Australia or any political subdivision or authority thereof or therein; (2) a judicial decision interpreting, applying or
clarifying those laws or regulations; (3) an administrative pronouncement or action that represents an official position, including a clarification of an official position, of the governmental authority or regulatory body making the administrative pronouncement or taking any action; or (4) a threatened challenge asserted in connection with an audit of the Company, or any of its Subsidiaries, or a threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes, which amendment or change is adopted or which proposed change, decision or pronouncement is announced or which action, clarification or challenge occurs on or after November 16, 2009, following which there is more than an insubstantial risk that any payment on the Notes is, or will be, subject to withholding or deduction in respect of any taxes, assessments or other governmental charges.
Notice of any such redemption of the Notes will be given to Holders of the Notes at their addresses, as shown in the Register, not more than 60 nor less than 30 days prior to the date fixed for redemption, and otherwise in accordance with Article X of the Base Indenture.
The Indenture contains provisions for defeasance and covenant defeasance at any time of the indebtedness evidenced by this Note upon compliance by the Company with certain conditions set forth therein.
If an Event of Default shall have occurred and be continuing, the principal hereof may be declared, and upon such declaration become, due and payable immediately, in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture contains provisions permitting the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes, on behalf of all of the Holders of the Notes, to waive any Event of Default under the Indenture and its consequences, subject to Section 5.7 of the Base Indenture.
In accordance with Section 9.8 of the Base Indenture, all payments in respect of this Note shall be made without withholding or deduction for, or on account of, any taxes, assessments or other governmental charges (relevant tax) imposed or levied by or on behalf of the Commonwealth of Australia or any political subdivision or authority in or of the Commonwealth of Australia, unless the withholding or deduction is required by law. In that event, the Company will pay such additional amounts (Additional Amounts) as may be necessary so that the net amount received by the Holder of this Note, after such withholding or deduction, will equal the amount that the Holder would have received in respect of this Note without such withholding or deduction. However, the Company will pay no Additional Amounts for or on account of:
(1) any relevant tax that would not have been imposed but for the fact that the Holder, or the beneficial owner, of this Note was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the Commonwealth of Australia or any political
subdivision or taxing authority thereof or therein or otherwise had some connection with the Commonwealth of Australia or any political subdivision or taxing authority thereof or therein other than merely holding this Note, or receiving payments under this Note;
(2) any relevant tax that would not have been imposed but for the fact that the Holder, or the beneficial owner, of this Note presented this Note for payment in the Commonwealth of Australia, unless the Holder, or the beneficial owner, was required to present this Note for payment and it could not have been presented for payment anywhere else;
(3) any relevant tax that would not have been imposed but for the fact that the Holder, or the beneficial owner, of this Note presented this Note for payment more than 30 days after the date such payment became due and was provided for, whichever is later, except to the extent that the Holder or beneficial owner would have been entitled to the additional amounts on presenting this Note for payment on any day during that 30 day period;
(4) any relevant tax that is an estate, inheritance, gift, sale, transfer, personal property or similar tax;
(5) any relevant tax which is payable otherwise than by withholding or deduction;
(6) any relevant tax that would not have been imposed if the Holder, or the beneficial owner, of this Note complied with the Companys request to provide information concerning his, her or its nationality, residence or identity or to make a declaration, claim or filing or satisfy any requirement for information or reporting that is required to establish the eligibility of the Holder, or the beneficial owner, of this Note to receive the relevant payment without (or at a reduced rate of) withholding or deduction for or on account of any such relevant tax;
(7) any relevant tax that would not have been imposed but for the Holder, or the beneficial owner, of this Note being an associate of the Company for purposes of section 128F(6) of the Income Tax Assessment Act 1936 of the Commonwealth of Australia (the Australian Tax Act);
(8) any relevant tax that is imposed or withheld as a consequence of a determination having been made under Part IVA of the Australian Tax Act (or any modification thereof or provision substituted therefor) by the Australian Commissioner of Taxation that such relevant tax is payable in circumstances where the Holder, or the beneficial owner, of this Note is a party to or participated in a scheme to avoid such relevant tax which the Company was not a party to;
(9) any relevant tax that is imposed pursuant to European Council Directive 2003/48/EC (the Directive) or any law implementing or complying with, or introduced in order to conform to, such Directive, or any agreement entered into by a Member State of the European Union with (A) any other state or (B) any relevant, dependent or associated territory of any Member State of the European Union providing for measures equivalent to, or the same as those provided for by such Directive; or
(10) any combination of the foregoing.
In addition, the Company will pay no Additional Amounts to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of the payment in respect of this Note to the extent such payment would, under the laws of the Commonwealth of Australia or any political subdivision or authority of or in the Commonwealth of Australia, be treated as being derived or received for tax purposes by a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to Additional Amounts had it been the Holder of this Note.
Any reference in this Note to principal or interest shall be deemed to also refer to any Additional Amount that may be payable as provided above.
The Indenture contains provisions permitting the Company and the Trustee, with the written consent of the Holders of not less than a majority in aggregate principal amount (calculated as provided in the Indenture) of the Outstanding Securities of each series adversely affected thereby to add any provisions to or to change or eliminate any provisions of the Indenture or any supplemental indenture or to modify the rights of the Holders of the Securities of such series, provided that, without the consent of the Holder of each such Security so affected, no such modification shall (a) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount of any Security or the rate of interest thereon, or change the coin or currency in which any Security or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity of any Security (or, in the case of redemption, on or after the Redemption Date), or (b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such amendment or modification, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture, or (c) change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 9.2 of the Base Indenture, or (d) except to the extent provided in Section 8.1(9) of the Base Indenture, make any change in Section 5.2, 5.7, 5.10 or 8.2 of the Base Indenture except to increase any percentage or to provide that certain other provisions of the Indenture cannot be modified or waived except with the consent of the Holders of each Outstanding Security
affected thereby. Any such consent given by the Holder of this Note shall be conclusive and binding upon such Holder and all future Holders of this Note and of any Notes issued on registration hereof, the transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective time, at the rate and in the coin or currency herein prescribed.
Upon surrender for registration of transfer of this Note, the Company shall execute and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, a new Note or Notes of like tenor and authorized denominations for an equal aggregate principal amount in exchange herefor, subject to the limitations provided in the Indenture. Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Registrar and the Trustee duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Note is registered as the owner hereof for all purposes (subject to the provisions hereof with respect to determination of the person to whom interest is payable).
Reference is made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Notes are to be authenticated and delivered.
No past, present or future director, officer, employee, agent, member, manager, trustee or stockholder, as such, of the Company or any successor Person shall have any liability for any obligations of the Company or any successor Person, either directly or through the Company or any successor Person, under the Notes 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 Note, each Holder agrees to the provisions of Section 1.13 of the Base Indenture and waives and releases all such liability. Such waiver and release shall be part of the consideration for the issue of the Notes.
The Notes of this series shall be issuable only in denominations of US$2,000 and integral multiples of US$1,000 in excess thereof. [This Global Note is exchangeable for Notes in definitive form only under certain limited circumstances set forth in the Indenture.](4) At the option of the Holder, the Notes (except a Note in global form) may be exchanged for other Notes, of any authorized denominations and of a like aggregate principal amount containing identical terms and provisions, upon surrender of the Notes to be exchanged at such office or agency.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS.
(4) Insert in Global Notes only
TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer such Note on the books of the Company with full power of substitution in the premises.
Your Signature:
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Exhibit 5.1
[Debevoise & Plimpton LLP Letterhead]
November 19, 2009
Westpac Banking Corporation
Westpac
Place
275 Kent Street
Sydney, New South Wales 2000
Australia
Westpac Banking Corporation
US$2,000,000,000 2.25% Notes due November 19, 2012
US$2,000,000,000 4.875% Notes due November 19, 2019
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration Statement on Form F-3 (File No. 333-157381) (the Registration Statement ) and the Prospectus Supplement, dated November 16, 2009 (the Prospectus Supplement ), to the Prospectus, dated November 16, 2009, of Westpac Banking Corporation (the Bank ), a company incorporated in the Commonwealth of Australia under the Corporations Act 2001 of Australia and registered in New South Wales, filed with the Securities and Exchange Commission (the Commission ) relating to the issuance and sale by the Bank of US$2,000,000,000 aggregate principal amount of its 2.25% Notes due November 19, 2012 and US$2,000,000,000 aggregate principal amount of its 4.875% Notes due November 19, 2019 (together, the Securities ) issued pursuant to the Senior Indenture, dated as of July 1, 1999 (the Base Indenture ), between the Bank and The Bank of New York Mellon, as successor to The Chase Manhattan Bank, as trustee (the Trustee ), as supplemented and amended by the First Supplemental Indenture, dated as of August 27, 2009, between the Bank and the Trustee (the First Supplemental Indenture ), and as further supplemented by the Second Supplemental Indenture, dated as of November 19, 2009, between the Bank and the Trustee, providing for the Securities (the Second Supplemental Indenture ; the Base Indenture, as supplemented and amended by the First Supplemental Indenture and as further supplemented by the Second Supplemental Indenture, being referred to herein as the Indenture ).
In rendering the opinion expressed below, ( a ) we have examined and relied on the originals, or copies certified or otherwise identified to our satisfaction, of such agreements, documents and records of the Bank and such other instruments and certificates of public officials and officers and representatives of the Bank as we have deemed necessary or appropriate for the purposes of such opinion, ( b ) we have examined and relied as to factual matters upon, and have assumed the accuracy of, the statements
made in the certificates of public officials and officers and representatives of the Bank delivered to us and ( c ) we have made such investigations of law as we have deemed necessary or appropriate as a basis for such opinion . In rendering the opinion expressed below, we have assumed with your permission, without independent investigation or inquiry, ( i ) the authenticity and completeness of all documents submitted to us as originals, ( ii ) the genuineness of all signatures on all documents that we examined, ( iii ) the conformity to authentic originals and completeness of documents submitted to us as certified, conformed or reproduction copies, ( iv ) the legal capacity of all natural persons executing documents, ( v ) the power and authority of the Trustee to enter into and perform its obligations under the Indenture, ( vi ) the due authorization, execution and delivery of the Indenture by the Trustee, ( vii ) the enforceability of the Indenture against the Trustee and ( viii ) the due authentication of the Securities on behalf of the Trustee in the manner provided in the Indenture.
Based upon and subject to the foregoing and the qualifications hereinafter set forth, we are of the opinion that the Securities constitute valid and binding obligations of the Bank, enforceable against the Bank in accordance with their terms.
Our opinion set forth above is subject to the effects of ( i ) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium laws, and other similar laws relating to or affecting enforcement of creditors rights or remedies generally, ( ii ) general equitable principles (whether considered in a proceeding in equity or at law) and ( iii ) concepts of good faith, reasonableness and fair dealing, and standards of materiality.
We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York, as currently in effect.
We have relied upon the opinion, dated today and addressed to you, of Mallesons Stephen Jaques, the Banks Australian counsel, as to certain matters of Australian law, and all of the assumptions and qualifications set forth in such opinion are incorporated herein.
We hereby consent to the filing of this opinion as an exhibit to the Banks Form 6-K filed on November 19, 2009, incorporated by reference in the Registration Statement, and to the reference to our firm under the heading Validity of Securities in the Prospectus Supplement forming a part thereof. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended.
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Very truly yours, |
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/s/ Debevoise & Plimpton LLP |
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Exhibit 5.2
[Letterhead of Mallesons Stephen Jaques]
Westpac Banking Corporation Westpac Place 275 Kent Street Sydney NSW 2000 |
19 November 2009
Greg Hammond Partner Direct line + 61 2 9296 2487 |
Dear Sirs
Westpac Banking
Corporation (Bank)
US$2,000,000,000 2.25% fixed rate notes due November 19, 2012 (3yr Fixed
Rate Notes) and US$2,000,000,000 4.875% fixed rate notes due November 19,
2019 (together with the 3yr Fixed Rate Notes, the Debt Securities) offered on
16 November 2009 and issued on 19 November 2009 and to be issued
pursuant to an Indenture dated as of 1 July 1999 (Base Senior Indenture)
between the Bank and The Bank of New York Mellon as successor to The Chase
Manhattan Bank (Trustee) as supplemented and amended by the First Supplemental
Indenture dated 27 August 2009 and as further supplemented by the Second
Supplemental Indenture dated 19 November 2009 between the Bank and the
Trustee (together, the Supplemental Senior Indenture, and, together with the
Base Senior Indenture, the Senior Indenture)
We refer to the filing with the Securities and Exchange Commission ( SEC ) under the United States Securities Act 1933, as amended ( Securities Act ), of the following documents in respect of which we have acted as your legal advisers in New South Wales ( NSW ) and the Commonwealth of Australia ( Australia ) (together the Relevant Jurisdictions ):
This opinion relates only to the laws of the Relevant Jurisdictions and is given on the basis that it will be construed in accordance with the laws of NSW. We express no opinion about the laws of another jurisdiction or (except as expressly provided in paragraph 4) factual matters.
Level 61 Governor Phillip Tower 1 Farrer Place Sydney NSW 2000 Australia |
T +61 2 9296 2000 |
DX 113 Sydney ABN 22 041 424 954 syd@mallesons.com www.mallesons.com |
F +61 2 9296 3999 |
We have examined copies (certified or otherwise identified to our satisfaction) of the following documents relating to the filing of the Registration Statement:
In this opinion laws means the common law , principles of equity and laws constituted or evidenced by documents available to the public generally.
We have assumed:
2
but there is nothing in the searches referred to in paragraph 3 or on the face of the extract of the authorisations referred to in paragraph 1(d) that would lead us to believe otherwise;
3
We have not taken any steps to verify these assumptions and assume, with respect to each addressee of this opinion, that that addressee does not know or suspect that any of these assumptions is incorrect.
We have examined:
in each case as at, respectively, approximately 8:35 am and 9:44 am local time on 19 November 2009.
These records are not necessarily complete or up to date. We have not examined documents filed by the Bank with ASIC or APRA nor have we made any other searches.
On the foregoing basis and subject to the qualifications set out below, we are of the opinion that:
4
This opinion is subject to the following qualifications:
5
6
We consent to the filing of this opinion as an exhibit to the Form 6-K dated 19 November 2009 filed by the Bank with the SEC and to the reference to our firm under the heading Validity of Securities in the Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
This opinion is strictly limited to the matters stated in it and does not apply by implication to other matters.
This opinion is given in respect of the laws of the Relevant Jurisdictions which are in force at 9.00 am local time on the date of this letter.
Yours faithfully |
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/s/ Mallesons Stephen Jaques |
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