FORM OF AGREEMENT FOR OFFERING COMMONWEALTH GUARANTEED SECURITIES BETWEEN THE COMMONWEALTH, THE RELEVANT ADI AND REPRESENTATIVES OF THE UNDERWRITERS
EXHIBIT
D
FORM OF AGREEMENT FOR OFFERING
COMMONWEALTH GUARANTEED SECURITIES BETWEEN THE COMMONWEALTH, THE RELEVANT ADI
AND REPRESENTATIVES OF THE UNDERWRITERS
DRAFT
FORM
OF OFFERING AGREEMENT
SEC
registered offering version (shelf)
AGREEMENT
FOR OFFERING COMMONWEALTH GUARANTEED SECURITIES
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Date:
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This
Agreement is dated
[ ],
[ ]
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Parties:
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The
Commonwealth of Australia represented by the Department of the
Treasury
(“Commonwealth”)
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[Name
and ABN of Eligible Institution]
(“Eligible
Institution”)
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[Name
of underwriter]
[Name
of underwriter]
[Name
of underwriter],
(the
“Underwriters”)
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Recitals
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A.
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The
Eligible Institution filed a registration statement on Form [ ]
(File No. 333-[ ]) (the “Eligible Institution
Registration Statement”), including a base prospectus, dated
[ ] (the “Eligible Institution Base
Prospectus”), with the United States Securities and Exchange
Commission (the “SEC”), under the United
States Securities Act of 1933 (the “Securities Act”),
relating to the offer and sale from time to time of certain of the
Eligible Institution’s debt securities.
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B.
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Under
an Underwriting Agreement dated the date hereof between the Eligible
Institution and the Underwriters (the “Underwriting
Agreement”), the Eligible Institution has agreed to sell to the
Underwriters and the Underwriters have agreed to buy the Eligible
Institution’s [ ]% [ ] due [ ] (the
“Guaranteed
Securities”), to be issued under an indenture dated [ ],
between the Eligible Institution and [ ] [as amended and
supplemented by a [ ]
Supplemental Indenture dated
[ ], between the Eligible
Institution and [ ]] ([as
so supplemented,] the “Indenture”).
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C.
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In
connection with the offering of the Guaranteed Securities, the Eligible
Institution has filed with the SEC under Rule 424(b) under the Securities
Act a preliminary prospectus, consisting of a preliminary prospectus
supplement, dated [ ], 2009, and the Eligible Institution Base
Prospectus (collectively, the “Eligible Institution
Preliminary
Prospectus”).
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D.
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In
order to promote financial system stability and ensure the continued flow
of credit through the economy at a time of heightened turbulence in
international capital markets, the Government of the Commonwealth has
implemented the Australian Government Guarantee Scheme for Large Deposits
and Wholesale Funding (the “Guarantee Scheme”) and
has executed a Deed of Guarantee dated November 20, 2008 (the “Deed of Guarantee”) and
adopted the Australian Government Guarantee Scheme for Large Deposits and
Wholesale Funding Scheme Rules (the “Scheme Rules”) to give
effect to the Commonwealth guarantee.
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E.
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The
Eligible Institution intends to apply for Eligibility Certificates (as
defined in the Scheme Rules) evidencing the extension of the Guarantee
Scheme to the Guaranteed Securities. The Commonwealth guarantee
of the Guaranteed Securities pursuant to the Guarantee Scheme is referred
to herein as the “Guarantee”.
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F.
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The
Commonwealth has filed a registration statement on Schedule B (File No.
333-157373), [as amended by Post-Effective Amendment No. [ ] on
[ ], 2009], covering issuances from time to time of the
Guarantee of debt securities of eligible Australian deposit-taking
institutions (the “Commonwealth Registration
Statement”), including a base prospectus, dated [ ] (the
“Commonwealth Base
Prospectus”), with the SEC under the Securities
Act.
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G.
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The
Commonwealth has filed with the SEC under Rule 424(b) under the Securities
Act a preliminary prospectus, consisting of a preliminary prospectus
supplement, dated [ ], 2009, and the Commonwealth Base
Prospectus (collectively, the “Commonwealth Preliminary
Prospectus”), relating to the issuance of the Guarantee of the
Eligible Institution’s Guaranteed Securities.
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H.
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The
“Effective Time”
means any date as of which any part of the Commonwealth Registration
Statement became, or is deemed to have become, effective under the
Securities Act. The “Time
of Sale” means [●] [am] [pm] New York City time, corresponding to
the time when sales of Guaranteed Securities are first
made.
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I.
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The
“Closing Date”
means the time and date of the payment
by the Underwriters for, and the delivery by the Eligible Institution of,
the Guaranteed Securities under the Underwriting
Agreement.
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J.
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To
facilitate the offering of the Guaranteed Securities under the
Underwriting Agreement, the parties to this Agreement make the
representations, warranties and agreements set forth in this
Agreement.
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TERMS:
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1.
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Commonwealth
Prospectus and the Eligible Institution
Prospectus
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(a) Within
24 hours after the execution of this Agreement, the Commonwealth will provide
the Eligible Institution with a form of final prospectus (the “Commonwealth Prospectus”) that
complies with the requirements of the Securities Act, and the rules and
regulations of the SEC thereunder, relating to the offer and sale of the
Guarantee of the Eligible Institution’s Guaranteed Securities and will file the
Commonwealth Prospectus with the SEC not later than the close of business on the
second business day after the date hereof.
(b) The
Eligible Institution will file with the SEC not later than the close of business
on the second business day after the date hereof a final prospectus (the “Eligible Institution
Prospectus”), relating to the offer and sale of the Guaranteed Securities
in the form delivered or to be delivered to prospective purchasers and
purchasers of the Guaranteed Securities and complying with the requirements of
the Securities Act.
(c) Subject
to the other terms of this Agreement, in connection with the offering of the
Guaranteed Securities by the Eligible Institution, the Commonwealth consents to
the Eligible Institution (or its agents including the Underwriters) delivering
to prospective purchasers and purchasers of the Guaranteed
Securities:
(i) the
Commonwealth Preliminary Prospectus accompanying or attached to the Eligible
Institution Preliminary Prospectus; and
(ii) the
Commonwealth Prospectus accompanying or attached to the Eligible Institution
Prospectus,
provided
that if during the period when a prospectus relating to the Guarantee is
required to be delivered:
(x) the
SEC issues an order suspending the effectiveness of the Commonwealth
Registration Statement or preventing or suspending the use of any Commonwealth
Preliminary Prospectus or Commonwealth Prospectus or initiates or threatens any
proceeding for that purpose or pursuant to Section 8A of the Securities Act
or
the Commonwealth receives any notice with respect to any suspension of the
qualification of the Guarantee for offer and sale in any jurisdiction by any
competent regulatory authority or the initiation or threatening of any
proceeding for such purpose by any competent regulatory authority,
or
(y) there
occurs any event as a result of which the Secretary of the Treasury believes
that the Commonwealth Preliminary Prospectus or the Commonwealth Prospectus as
then supplemented or amended includes any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements, in the light of the circumstances when made, not
misleading,
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the
Commonwealth will notify the Eligible Institution and the Underwriters of the
occurrence of an event described in clause (x) or (y) above and upon notice from
the Commonwealth to the Eligible Institution and its Underwriters as to clause
(x) or (y) above, the Eligible Institution (and its agents including the
Underwriters) shall immediately cease to use such Commonwealth Preliminary
Prospectus or Commonwealth Prospectus, as the case may be.
(d) Any
statements regarding the Commonwealth, the Guarantee Scheme or the Guarantee
made in connection with any offering of Guaranteed Securities by the Eligible
Institution, the Underwriters, or any person acting on behalf of any of them
must:
(i) be
made in circumstances in which it is clear to a reasonable reader that the
statements are being made by and are the responsibility of such person and are
not being made by and are not the responsibility of the Commonwealth;
and
(ii) not
be inconsistent with the statements in the Commonwealth Prospectus (including
the documents incorporated by reference therein).
For
the avoidance of doubt, this paragraph (d) does not apply to the delivery
to prospective purchasers and purchasers of the Guaranteed Securities
of the Commonwealth Preliminary Prospectus or the Commonwealth Prospectus in
accordance with this Agreement.
(e) The
Commonwealth represents and agrees that it has not made or used and, unless it
obtains the prior consent of the Eligible Institution and the Underwriters, it
will not make or use any written communication (as defined in Rule 405
under the Securities Act) relating to the Guarantee that would constitute a
"free writing prospectus" as defined in Rule 405 under the Securities Act,
required to be filed with the SEC under Rule 433 under the Securities
Act.
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2.
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Representations
and warranties of the Commonwealth
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The
Commonwealth represents and warrants to the Eligible Institution and each of the
Underwriters as of the date of this Agreement and as of the Closing Date as
follows:
(a) This
Agreement has been duly authorized, executed and delivered by the Commonwealth,
and is a legal, valid and binding agreement of the Commonwealth, enforceable
against the Commonwealth in accordance with its terms.
(b) The
Deed of Guarantee has been duly authorized, executed and delivered by the
Commonwealth and is a legal, valid and binding instrument of the Commonwealth,
enforceable against the Commonwealth in accordance with its terms, subject to general principles of equity
as to the availability of
remedies.
(c) The
obligations of the Commonwealth under the Guarantee are irrevocable and rank
equally with other unsecured debts and financial obligations of the
Commonwealth.
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(d) The
execution of this Agreement and the Deed of Guarantee and the compliance by the
Commonwealth with the applicable provisions of this Agreement and the Deed of
Guarantee do not conflict with or result in a breach or violation of any
existing Australian law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court in Australia.
(e) [Post-Effective
Amendment No. [ ] to] the Commonwealth Registration Statement has
been declared effective under the Securities Act, and no stop order suspending
the effectiveness of the Commonwealth Registration Statement is in effect, and
no proceedings for that purpose or pursuant to Section 8A of the Securities Act
against the Commonwealth are pending before or threatened by the
SEC.
(f) At
the Effective Time, the Commonwealth Registration Statement did not contain and
any amendment thereto, as of the date it becomes effective, will not contain any
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the Effective Time, the Commonwealth Registration
Statement did comply and any amendment thereto, as of the date it becomes
effective, will comply in all material respects with the requirements of the
Securities Act and the applicable rules and regulations thereunder. The
Commonwealth Prospectus, as of the date of the prospectus supplement comprising
a part of the Commonwealth Prospectus, did not and any amendment or supplement
to the Commonwealth Prospectus, as of the date of such amendment or supplement,
and as of the Closing Date, will not contain any untrue statement of material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(g) The
Commonwealth Preliminary Prospectus at the time of filing with the SEC complied
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations thereunder, and as of the date of the
preliminary prospectus supplement comprising a part of the Commonwealth
Preliminary Prospectus did not, and as of the Time of Sale did not, and as of
the Closing Date will not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements made therein,
in light of the circumstances in which they were made, not
misleading. No SEC order preventing or suspending the use of the
Commonwealth Preliminary Prospectus has been issued or any proceeding therefor
initiated or threatened by the SEC.
(h) The
statements in the section of the Commonwealth Base Prospectus entitled “The
Commonwealth of Australia Guarantee”, insofar as such statements purport to
summarize certain provisions of the Deed of Guarantee and the Scheme Rules,
fairly summarize such provisions in all material respects.
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3.
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Representations,
warranties and agreements of the Eligible
Institution
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The
Eligible Institution represents and warrants to, and agrees with, the
Commonwealth as of the date of this Agreement as follows:
(a) The
Eligible Institution has been duly organized and validly exists under the laws
of its jurisdiction of incorporation and has full corporate power and authority
to enter into and perform its obligations under this Agreement.
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(b) This
Agreement has been duly authorized, executed and delivered by the Eligible
Institution and is a legal, valid and binding agreement of the Eligible
Institution, enforceable against the Eligible Institution in accordance with its
terms.
(c) The
Guaranteed Securities have been duly authorized by the Eligible Institution and,
on the Closing Date, will have been duly executed by the Eligible Institution,
and when authenticated and issued in accordance with the provisions of the
Indenture and delivered and paid for as provided in the Underwriting Agreement,
will constitute legal, valid and binding obligations of the Eligible
Institution, entitled to the benefits of the Indenture, enforceable against the
Eligible Institution in accordance with their terms, subject, as to the
enforcement of remedies, to applicable bankruptcy (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
insolvency, moratorium or other laws affecting creditors’ rights generally and
to general principles of equity.
(d) The
Eligible Institution will only issue and deliver Guaranteed Securities under the
Eligible Institution Prospectus after the Commonwealth has issued an Eligibility
Certificate applying to those Guaranteed Securities.
(e) The
Eligible Institution has made no statements in connection with any offering of
the Guaranteed Securities regarding the Commonwealth or the Guarantee that are
not authorized or permitted by Section 1 of this Agreement.
(f) The
Eligible Institution has delivered or will deliver (or has caused or will cause
to be delivered) copies of the Commonwealth Preliminary Prospectus to each
Underwriter prior to the Time of Sale.
(g) The
Eligible Institution Registration Statement has been declared effective under
the Securities Act, and no stop order suspending the effectiveness of the
Eligible Institution Registration Statement is in effect, and no proceedings for
that purpose or pursuant to Section 8A of the Securities Act against the
Eligible Institution are pending before or threatened by the SEC.
(h) The
Eligible Institution has not made or used and, unless it obtains the prior
consent of the Commonwealth, it will not make or use any written communication
(as defined in Rule 405 under the Securities Act) relating to the Guarantee that
would constitute a "free writing prospectus" as defined in Rule 405 under the
Securities Act, required to be filed with the SEC under
Rule 433 under the Securities Act, except that the Eligible Institution (and the
Underwriters) may use a preliminary term sheet and a final term sheet describing
the terms of the Guaranteed Securities and referring to the
Guarantee.
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4.
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Representations,
warranties and agreements of the
Underwriters
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Each
Underwriter severally represents and warrants to, and agrees with, the
Commonwealth as of the date of this Agreement as follows:
(a) The
Underwriter has been duly organized and validly exists under the laws of its
jurisdiction of incorporation and has full corporate power and authority to
enter into and perform its obligations under this Agreement.
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(b) This
Agreement has been duly authorized, executed and delivered by the Underwriter
and is a legal, valid and binding agreement of the Underwriter, enforceable
against the Underwriter in accordance with its terms.
(c) The
Underwriter has made no statements in connection with the offering of the
Guaranteed Securities regarding the Commonwealth or the Guarantee that are not
authorized or permitted by Section 1 of this Agreement.
(d) The
Underwriter has not made or used and, unless it obtains the prior consent
of the Commonwealth, it will not make or use any written communication (as
defined in Rule 405 under the Securities Act) relating to the Guarantee that
would constitute a "free writing prospectus" as defined in Rule 405 under the
Securities Act, required to be filed with the SEC under
Rule 433 under the Securities Act, except that such Underwriter may use a
preliminary term sheet and a final term sheet describing the terms of the
Guaranteed Securities and referring to the Guarantee.
(e) The
Underwriter has delivered or will deliver a copy of the Commonwealth
Preliminary Prospectus to each purchaser of Guaranteed Securities prior to the
Time of Sale of such Guaranteed Securities.
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5.
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Opinions,
legal fees, payment of expenses
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(a) On
the Closing Date under the Underwriting Agreement, the Commonwealth shall
procure the delivery to each Underwriter:
(i) by
its U.S. counsel of a negative assurance letter with regard to the content of
the Commonwealth Registration Statement, the Commonwealth Preliminary
Prospectus and the Commonwealth Prospectus and covering such other matters
relating to the Commonwealth Registration Statement as are customarily covered
by such a letter; and
(ii) by
its Australian counsel of a validity opinion regarding the Deed of
Guarantee.
(b) Within
28 days of being invoiced by the Commonwealth, the Eligible Institution shall
pay the reasonable fees, charges and disbursements of the Commonwealth’s legal
counsel in connection with the offering and any amendments to the Commonwealth
Registration Statement or supplements to the prospectus that forms part of the
Commonwealth Registration Statement since the closing of the most recent
offering under the Commonwealth Registration Statement [or if there has been no
such offering, since the first date on which the Commonwealth Registration
Statement became effective].
(c) Within
28 days of being invoiced by the Commonwealth, the Eligible Institution shall
pay the following expenses unless the Eligible Institution has previously
assumed the direct obligation to pay the relevant vendor:
(i) expenses
relating to the filing with the SEC of any amendments to the Commonwealth
Registration Statement (including exhibits) relating to the offering of the
Guaranteed Securities; and
(ii) expenses
relating to the printing and delivery to the Eligible Institution and the
Underwriters of such copies of the Commonwealth Preliminary Prospectus, the
Commonwealth Prospectus and any supplements thereto as the Eligible Institution
may request.
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6.
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Application
of counter-indemnity
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The
Eligible Institution agrees that the indemnity provided under the
Counter-indemnity deed delivered or to be delivered by it to the Commonwealth in
accordance with the Scheme Rules in connection with the Guaranteed Securities
will extend to, and to the extent that it does not is hereby extended to, any
losses, claims, damages or liabilities to which the Commonwealth may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) an untrue statement or alleged untrue statement of a material fact
contained or incorporated by reference in the Eligible Institution Registration
Statement, the Eligible Institution Preliminary Prospectus, the Eligible
Institution Prospectus or any Eligible Institution free writing prospectus (as
defined in Rule 405 under the Securities Act), or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading or (ii) any breach of the representation contained in Section 3(e) of
this Agreement, and will reimburse the Commonwealth for any legal or other
expenses reasonably incurred by the Commonwealth in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that as long as the
representation in Section 3(e) of this Agreement is accurate, the Eligible
Institution shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Commonwealth Registration Statement, the Commonwealth Preliminary
Prospectus, the Commonwealth Prospectus or any free writing prospectus
contemplated under Section 1(e) hereof.
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7.
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Termination
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This
Agreement may be terminated by the Commonwealth for any reason on 10 days’
written notice to the Eligible Institution and
the Underwriters; provided that the Commonwealth will not terminate this
Agreement during any period in which an Underwriter has an obligation under the
Securities Act and the rules and regulations thereunder to deliver the
Commonwealth Prospectus. Notwithstanding such termination,
Sections 5(b), 5(c) and 6 of this Agreement shall remain in
effect.
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8.
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Notices
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All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Commonwealth shall be directed to
The Treasury, Xxxxxxx Xxxxxxxx, Xxxxxx XXX 0000, Xxxxxxxxx, attention: General
Manager, Financial System Division, Telephone + (000) 0000 0000, Facsimile +
(000) 0000 0000. Notices to the Underwriters shall be directed to (i)
in the case of
[ ],
to
[ ],
attention:
[ ],
(ii) in the case of
[ ],
to
[ ],
attention:
[ ],
and (iii) in the case of
[ ],
to
[ ],
attention:
[ ].
Notices to the Eligible Institution shall be directed to
[ ],
to
[ ],
attention:
[ ].
[NOTE: PLEASE INCLUDE ADDRESS
AND FAX NUMBER FOR EACH
UNDERWRITER]
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9.
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Governing
law
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This
Agreement shall be governed by and construed in accordance with the laws of the
State of New South Wales.
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Signed
for and on behalf of the
COMMONWEALTH
OF
AUSTRALIA
represented by the
Department
of the Treasury
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by
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Name
of Signatory
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Signature
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in
the presence of:
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Name
of witness
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Signature
of witness
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[Signature
blocks of Eligible Institution and Underwriters]
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