EXHIBIT 99(H)
ANZ EXCHANGEABLE PREFERRED TRUST II
U.S.$____________
TRUST UNITS EXCHANGEABLE FOR PREFERENCE SHARESSM
("TRUEPRSSM")
PURCHASE AGREEMENT
Dated: November ___, 1998
___________________________
/SM/Service mark of Xxxxxxx Xxxxx & Co., Inc.
TABLE OF CONTENTS
PAGE
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SECTION 1. REPRESENTATIONS AND WARRANTIES.................................. 5
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING...................... 17
SECTION 3. COVENANTS....................................................... 18
SECTION 4. PAYMENT OF EXPENSES............................................. 24
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS......................... 25
SECTION 6. INDEMNIFICATION................................................. 30
SECTION 7. CONTRIBUTION.................................................... 33
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.. 35
SECTION 9. TERMINATION OF AGREEMENT........................................ 36
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS..................... 36
SECTION 11. NOTICES........................................................ 37
SECTION 12. PARTIES........................................................ 37
SECTION 13. GOVERNING LAW AND TIME......................................... 38
SECTION 14. CONSENT TO JURISDICTION........................................ 38
SECTION 15. JUDGMENT CURRENCY.............................................. 38
SECTION 16. EFFECT OF HEADINGS............................................. 38
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ANZ EXCHANGEABLE PREFERRED TRUST II
TRUST UNITS EXCHANGEABLE FOR PREFERENCE SHARESSM
SM Service mark of Xxxxxxx Xxxxx & Co., Inc.
("TRUEPRSSM")
PURCHASE AGREEMENT
November ___, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
C/X XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
ANZ Exchangeable Preferred Trust II, a Delaware business trust (the "Trust"),
and Australia and New Zealand Banking Group Limited, Australia Company Number
005 357 522, a corporation organized under the laws of the State of Victoria,
Commonwealth of Australia (the "Company"), confirm their respective agreements
with each other and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx & Co. Incorporated, PaineWebber
Incorporated, Prudential Securities Incorporated and Xxxxxxx Xxxxx Xxxxxx Inc.
are acting as representatives (in such capacity, the "Representatives"), with
respect to (i) the issue and sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective Trust Units
Exchangeable for Preference Shares of the Trust (the "Initial Securities") set
forth in said Schedule A, and (ii) the grant by the Trust to the Underwriters,
acting severally and not jointly, of the option described in
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/SM/ Service mark of MerrillLynch & Co., Inc.
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Section 2(b) hereof to purchase all or any part of ___________ additional Trust
Units Exchangeable for Preference Shares of the Trust to cover over-allotments,
if any (the "Option Securities"). The Initial Securities and the Option
Securities are hereinafter called, collectively, the "TrUEPrS."
The TrUEPrS will be issued pursuant to the Amended and Restated Trust
Agreement, dated as of November 6, 1998, among the trustees of the Trust (the
"Trustees"), ML IBK Positions, Inc. ("ML IBK Positions"), as sponsor, Xxxxx
Xxxxxxxxx, as depositor, and the holders of TrUEPrS from time to time (the
"Trust Agreement"). The Trust has issued four thousand TrUEPrS to ML IBK
Positions pursuant to the TrUEPrS Subscription Agreement, dated November 6,
1998, between the Trust and ML IBK Positions (the "TrUEPrS Subscription
Agreement") in consideration of a purchase price of $100,000 in satisfaction of
the requirements of Section 14(a)(1) of the 1940 Act (as herein defined).
Upon the occurrence of an Exchange Event (as defined in the Trust
Agreement), each TrUEPrS will be exchangeable for American Depositary Receipts
("ADRs") evidencing one American Depositary Share ("ADS") representing four
fully paid non-cumulative preference shares, liquidation preference U.S. $6.25
per share, of the Company designated as the 1998 Preference Shares (Series 2)
(each, a "Preference Share") with a quarterly non-cumulative dividend payable at
the annual rate of [ ]%, provided that, if the Exchange Event is the
redemption of the Preference Shares for cash, each TrUEPrS will be exchangeable
for U.S. $25.00 plus accrued dividends for the then current quarterly dividend
period.
The ADRs, the ADSs and the Preference Shares issuable in exchange for the
TrUEPrS are hereinafter called the "Company Securities" and the TrUEPrS and the
Company Securities are hereinafter called the "Securities." The ADRs will be
issued pursuant to a Deposit Agreement, dated November ___, 1998, between the
Company and The Bank of New York, as depositary (the "Deposit Agreement").
The Trust and the Company understand that the Underwriters propose to make
a public offering of the TrUEPrS as soon as the Representatives deem advisable
after this Agreement has been executed and delivered.
The Trust has filed with the Securities and Exchange Commission (the
"Commission") (i) a notification on Form N-8A (the "Notification") of
registration of the Trust as an investment company; and (ii) a registration
statement on Form N-2 relating to the TrUEPrS (File Nos. 333-65849 and 811-
09069) for the registration of the TrUEPrS under the Securities Act of 1933, as
amended (the "1933 Act") and Pre-Effective Amendment No. 1 thereto, including
the related preliminary prospectus or prospectuses relating to the offering of
the TrUEPrS (the "Trust Registration Statement"). Promptly after execution and
delivery of this Agreement, the Trust will either (i) prepare and file a
prospectus in accordance with the provisions of Rule 430A ("Rule 430A") of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations") and paragraph (h) of Rule 497 ("Rule 497 (h)") of the 1933 Act
Regulations or (ii) if the Trust has elected to rely upon Rule 434 ("Rule 434")
of the 1933 Act Regulations, prepare and file a term sheet (a "Trust Term
Sheet") in accordance with the provisions of Rule 434 and Rule 497(h). The
information included in such prospectus or in such Trust Term Sheet, as the case
may be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant
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to paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Any
prospectus relating to the offering and sale of the TrUEPrS used before such
registration statement became effective, and any prospectus relating to the
Trust Registration Statement that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"Trust preliminary prospectus." Such registration statement (as so amended),
including the exhibits thereto and schedules thereto, if any, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called a "Trust Registration Statement."
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations relating to the Trust Registration Statement is herein referred to
as a "Trust Rule 462(b) Registration Statement," and after such filing the term
"Trust Registration Statement" shall include the Trust Rule 462(b) Registration
Statement. The final prospectus relating to the offering and sale of the
TrUEPrS, excluding any Company Prospectus (as defined below) attached thereto,
in the form first furnished to the Underwriters for use in connection with the
offering of the TrUEPrS is herein called the "Trust Prospectus." If Rule 434 is
relied on, the term "Trust Prospectus" shall refer to the preliminary Trust
Prospectus dated November __, 1998, together with the applicable Trust Term
Sheet and all references in this Agreement to the date of such Trust Prospectus
shall mean the date of the applicable Trust Term Sheet. For purposes of this
Agreement, all references to the Trust Registration Statement, any Trust
preliminary prospectus, the Trust Prospectus or any Trust Term Sheet or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
The Company has filed with the Commission a registration statement on Form
F-3 (File No. 333-________) for the registration of the Company Securities under
the 1933 Act, and Pre-Effective Amendment No. 1 thereto, including the related
preliminary prospectus or prospectuses (the "Company Registration Statement").
Each prospectus relating to the Company Securities deliverable upon exchange of
the TrUEPrS used before such registration statement (as so amended) became
effective, in each case excluding any Trust preliminary prospectus attached
thereto, is herein called a "Company preliminary prospectus." Promptly after
execution and delivery of this Agreement, the Company will either (i) prepare
and file a prospectus in accordance with the provisions of Rule 430A of the
rules and regulations of the Commission under the 1933 Act Regulations and Rule
424(b) or (ii) if the Company has elected to rely upon Rule 434, prepare and
file a term sheet (a "Company Term Sheet") in accordance with the provisions of
Rule 434 and Rule 424(b). The information included in such form of prospectus
or in any such Company Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." The Company Prospectus used before such registration statement
became effective, and any prospectus relating to the Company Registration
Statement that omitted, as applicable, the Rule 430A Information or the Rule 434
Information, that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "Company preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called a "Company
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Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations relating to the Company Registration
Statement is herein referred to as a "Company Rule 462(b) Registration
Statement," and after such filing the term "Company Registration Statement"
shall include the Company Rule 462(b) Registration Statement. The final Form of
Company Prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form F-3 under the 1933 Act, but excluding any Trust
Prospectus attached thereto, in the form first furnished to the Underwriters for
use in connection with the offering of the TrUEPrS is herein called the "Company
Prospectus." If Rule 434 is relied on, the terms "Company Prospectus" shall
refer to the Company preliminary prospectus dated November __, 1998, together
with any Company Term Sheet and all references in this Agreement to the date of
such Prospectus shall mean the date of the applicable Company Term Sheet.
The Company has filed with the Commission a registration statement on Form
F-6 and a related prospectus for the registration under the 1933 Act of the ADSs
evidenced by the ADRs. Such registration statement and prospectus, at the time
such registration statement became effective, in each case as then amended, are
hereinafter called the "ADR Registration Statement" and the "ADR Prospectus,"
respectively.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Company
Registration Statement, any Company preliminary prospectus or the Company
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is incorporated by reference in the Company Registration Statement, any Company
preliminary prospectus or the Company Prospectus, as the case may be; and shall
be deemed to exclude all financial statements and schedules and other
information which are included in any Trust preliminary prospectus or the Trust
Prospectus which is attached to any Company preliminary prospectus or Company
Prospectus; and all references in this Agreement to amendments or supplements to
the Company Registration Statement, any Company preliminary prospectus or the
Company Prospectus shall be deemed to mean and include the filing of any
document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Company Registration Statement, such Company
preliminary prospectus or the Company Prospectus, as the case may be.
The Trust Prospectus, the Company Prospectus and the ADR Prospectus are
herein called individually a "Prospectus" and collectively the "Prospectuses";
the Trust preliminary prospectus and the Company preliminary prospectus are
herein called individually a "Preliminary Prospectus" and collectively the
"Preliminary Prospectuses"; and the Trust Registration Statement, the Company
Registration Statement and the ADR Registration Statement are called
individually a "Registration Statement" and collectively the "Registration
Statements."
Each Trust preliminary prospectus will be accompanied by the then current
Company preliminary prospectus and each Trust Prospectus will be accompanied by
the then current Company Prospectus. No Company preliminary prospectus or
Company Prospectus will be separately distributed by the Trust, the Company or
the Underwriters.
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Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Trust Registration Statement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Trust. The Trust represents
and warrants to each Underwriter as of the date hereof, as of the Closing Time
referred to in Section 2(c) hereof, and as of each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. Each of the Trust Registration
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Statement and any Trust Rule 462(b) Registration Statement has become effective
under the 1933 Act and no stop order suspending the effectiveness of the Trust
Registration Statement or any Trust Rule 462(b) Registration Statement pursuant
to Section 8(d) of the 1933 Act, or order pursuant to Section 8(e) of the
Investment Company Act of 1940, as amended (the "1940 Act"), has been issued and
no proceedings for either such purpose have been instituted or are pending or,
to the knowledge of the Trust or the Company, are contemplated by the
Commission, and any request on the part of the Commission for, additional
information has been complied with.
At the respective times the Trust Registration Statement, any Trust
Rule 462(b) Registration Statement and any post-effective amendments thereto
became effective, the Notification, the Trust Registration Statement, the Trust
Rule 462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the 1940 Act and the rules and
regulations of the Commission under the 1940 Act (the "1940 Act Regulations"),
and did not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Trust Prospectus nor any
amendments or supplements thereto, at the time the Trust Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is used,
the Trust will comply with the requirements of Rule 434. The representations and
warranties in this subsection shall not apply to statements in or omissions from
the Trust Registration Statement (or any amendments thereto) or the Trust
Prospectus (or any amendments or supplements thereto) made in reliance upon and
in conformity with information furnished to the Trust in writing by the
Underwriters through Xxxxxxx Xxxxx expressly for use in the Trust Registration
Statement (or any amendments thereto) or Trust Prospectus (or any amendments or
supplements thereto).
Each Trust preliminary prospectus and the prospectus relating to the
offering of the TrUEPrS filed as part of the Trust Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant to Rule
497(h) under the 1933 Act, complied when so filed in all material respects with
the 1933 Act Regulations and the 1940 Act
5
Regulations, and, if applicable, each Trust preliminary prospectus and the Trust
Prospectus delivered to the Underwriters for use in connection with the offering
of the TrUEPrS was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(ii) Independent Accountants. The accountants who certified certain financial
-----------------------
statements and supporting schedules included in the Trust Registration Statement
are independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) Financial Statement. The statement of assets and liabilities included
-------------------
in the Trust Registration Statement and the Trust Prospectus, together with the
notes thereto, present fairly the financial position of the Trust at the date
indicated; said financial statement has been prepared in conformity with
generally accepted accounting principles.
(iv) No Material Adverse Change in Business. Since the respective dates as of
--------------------------------------
which information is given in the Trust Registration Statement and the Trust
Prospectus, the Company Registration Statement and the Company Prospectus,
except as otherwise stated therein or contemplated thereby, (A) there has not
occurred any material adverse change in the condition, financial or otherwise,
or in the earnings, business prospects, management, investment objectives or
investment policies of the Trust or on the ability of the Trust to perform its
obligations under this Agreement, any Fundamental Trust Agreement (as defined
herein) or the other agreements or instruments contemplated by this Agreement or
the Trust Registration Statement, whether or not arising in the ordinary course
of business and (B) there have been no transactions entered into by the Trust,
other than those in the ordinary course of business, which are material with
respect to the Trust.
(v) Good Standing of the Trust; No Subsidiaries. The Trust has been duly
-------------------------------------------
created and is validly existing as a business trust in good standing under the
Delaware Act with power and authority to own its properties and to conduct its
business as described in the Trust Prospectus and to enter into and perform its
obligations under this Agreement and the Fundamental Trust Agreements (as
defined herein); the Trust is and will, under current law, be classified for
United States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust has no subsidiaries.
(vi) Registration Under the 1940 Act. The Trust is registered with the
-------------------------------
Commission as a non-diversified, closed-end management investment company under
the 1940 Act. No order of suspension or revocation of such registration has been
issued or proceedings therefor initiated or, to the knowledge of the Trust,
threatened by the Commission. No person is serving or acting as an officer or
trustee of the Trust, except in accordance with the provisions of the 1940 Act.
(vii) Outstanding TrUEPrS. All of the outstanding TrUEPrS have been duly and
-------------------
validly authorized and issued and are fully paid and non-assessable undivided
beneficial
6
interests in the assets of the Trust; and the form of certificate used to
evidence the TrUEPrS is in due and proper form and complies with all provisions
of applicable law.
(viii) Authorization of Agreement. This Agreement has been duly authorized,
--------------------------
executed and delivered by the Trust. The performance of this Agreement and the
consummation of the transactions contemplated in this Agreement and the Trust
Registration Statement (including the issuance and sale of the TrUEPrS and the
use of the proceeds from the sale of the TrUEPrS as described in the Trust
Prospectus under the caption "Use of Proceeds and Collateral Arrangements") and
compliance by the Trust with its obligations under this Agreement have been duly
authorized by the Trust.
(ix) Authorization and Description of the TrUEPrS. The TrUEPrS have been duly
--------------------------------------------
authorized by the Trust for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Trust pursuant to this
Agreement against payment of the purchase price therefor as provided herein,
will be validly issued and fully paid and non-assessable undivided beneficial
interests in the assets of the Trust; the TrUEPrS conform to all statements
relating thereto contained in the Trust Prospectus and such description conforms
to the rights set forth in the instruments defining the same; no holder of the
TrUEPrS will be subject to personal liability by reason of being such a holder;
and the issuance of the TrUEPrS is not subject to the preemptive or other
similar rights of any securityholder of the Trust.
(x) Authorization of Fundamental Trust Agreements. Each of the Administration
---------------------------------------------
Agreement, to be dated November ___, 1998, between the Trust and The Bank of New
York as administrator, the Custodian Agreement, dated November __, 1998, between
the Trust and The Bank of New York as custodian, the Paying Agent Agreement, to
be dated November ___, 1998, between the Trust and The Bank of New York as
paying agent, the Expense and Indemnity Agreement, to be dated November ___,
1998, among the Trust, the U.K. Company, the Jersey Subsidiary, the Jersey
Holding Company, the Jersey Charitable Trust and the ANZ Affiliate (the "Expense
and Indemnity Agreement"), the Debt Securities Subscription Agreement, dated
November __, between the Trust and the U.K. Company, the Trust Reimbursement
Agreement, to be dated November ___, 1998, between the Trust and Xxxxxxx Xxxxx,
the Jersey Preference Shares Security and Pledge Agreement, to be dated November
___, 1998, among the Trust, the U.K. Company and The Bank of New York, as
collateral agent, the ADRs Security and Pledge Agreement, to be dated November
___, 1998, among the Trust, the U.K. Company, the Jersey Subsidiary and The Bank
of New York, as collateral agent, the License Agreement, to be dated November
___, 1998, between the Trust and the Company (the "License Agreement"), the ADRs
Purchase Contract, to be dated November ___, 1998, between the Trust and the
Jersey Subsidiary and the TrUEPrS Subscription Agreement (such agreements are
collectively referred to herein as the "Fundamental Trust Agreements"), has been
duly authorized by the Trust and, at the Closing Time, will have been duly
executed and delivered by the Trust and (assuming the due authorization,
execution and delivery by the other parties thereto) will constitute a valid and
binding agreement of the Trust, enforceable against the Trust in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar
7
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(xi) Compliance with Acts. The Trust Agreement and the Fundamental Trust
--------------------
Agreements comply with any and all applicable provisions of the 1933 Act and the
1940 Act, and all approvals of such documents required under the 1940 Act by the
holders of the TrUEPrS and the Trustees have been obtained and are in full force
and effect.
(xii) Description of Trust Agreement and Fundamental Trust Agreements. The
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Trust Agreement and the Fundamental Trust Agreements will conform in all
material respects to the respective statements relating thereto contained in the
Trust Prospectus and, to the extent forms thereof were filed as exhibits to the
Trust Registration Statement, will be in substantially the respective forms so
filed.
(xiii) Absence of Defaults and Conflicts. The execution, delivery and
---------------------------------
performance by the Trust of this Agreement and each Fundamental Trust Agreement
and the consummation of the transactions contemplated herein, therein and in the
Trust Registration Statement (including the issuance and sale of the TrUEPrS and
any exchange of Company Securities pursuant thereto and the use of the proceeds
from the sale of the TrUEPrS as described in the Trust Prospectus under the
caption "Use of Proceeds and Collateral Arrangements") and compliance by the
Trust with its obligations hereunder, under the TrUEPrS and under each
Fundamental Trust Agreement do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Trust Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust pursuant to, any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Trust is a party or by which it may be bound, or to
which any of the property or assets of the Trust is subject (collectively,
"Agreements and Instruments") (except for such conflicts, breaches, defaults or
Trust Repayment Events or liens, charges or encumbrances that would not result
in a material adverse effect on the condition, financial or otherwise, or on the
earnings, business prospects, management, investment objectives or investment
policies of the Trust or on the ability of the Trust to perform its obligations
under this Agreement, any Fundamental Trust Agreement or the other agreements or
instruments contemplated by this Agreement or the Trust Registration Statement,
whether or not arising in the ordinary course of business, (a "Material Adverse
Trust Effect"), nor will such action result in any violation of the provisions
of the Trust Agreement or the trust certificates of the Trust filed with the
State of Delaware on October 13, 1998 and November 5, 1998 or any applicable
law, statute, rule or regulation of any government or government instrumentality
having jurisdiction over the Trust or any of its assets, properties or
operations (other than any state securities or "blue sky" law, statute, rule or
regulation, as to which no representation or warranty is made), or any
applicable judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Trust or any of its assets or properties (except for such violations of any law,
statute, rule, regulation, judgment, order, writ or decree that would not result
in a Material Adverse Trust Effect).
8
As used herein, a "Trust Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness of the
Trust (or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by
the Trust.
(xiv) Absence of Proceedings. There is no action, suit, proceeding, inquiry
----------------------
or investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending with respect to which the Trust has received
service of process, or, to the knowledge of the Trust, threatened, against or
affecting the Trust, which is required to be disclosed in the Trust Registration
Statement or the Trust Prospectus (other than as disclosed therein), or which
might, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Trust Effect, or which might, individually or in the aggregate,
reasonably be expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions contemplated in this
Agreement or the Fundamental Trust Agreements (including the issuance and sale
of the TrUEPrS and any exchange of Company Securities pursuant thereto) or the
performance by the Trust of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings (with respect to
which the Trust has received service of process) to which the Trust is a party
or of which any of its property or assets is the subject which are not described
in the Trust Registration Statement or the Trust Prospectus, including ordinary
routine litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Trust Effect.
(xv) No Investment Restrictions, etc. There are no material restrictions,
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limitations or regulations with respect to the ability of the Trust to invest
its assets as described in the Trust Prospectus, other than as described
therein.
(xvi) Exhibits. There are no contracts or documents which are of a character
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required to be described in the Trust Registration Statement or the Trust
Prospectus or to be filed as exhibits thereto which have not been so described
or filed as required.
(xvii) Absence of Further Requirements. No declaration or filing with, or
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authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the Trust to own and use its assets and to conduct its business in
the manner described in the Trust Prospectus or for the performance by the Trust
of its obligations under this Agreement, the Trust Agreement or any Fundamental
Trust Agreement or the consummation by the Trust of the transactions
contemplated herein or therein (including the issuance and sale of the TrUEPrS,
any delivery of Company Securities pursuant thereto and the use of the proceeds
from the sale of the TrUEPrS as described in the Trust Prospectus under the
caption "Use of Proceeds and Collateral Arrangements"), except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations, the 1940 Act or the 1940 Act Regulations or state securities laws.
(xviii) Possession of Licenses and Permits. The Trust possesses such permits,
----------------------------------
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or
9
bodies necessary to conduct the business now operated by them; the Trust is in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Trust Effect; all of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Trust Effect; and the Trust has not
received any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Trust Effect.
(xix) Title to Property. The Trust has good title to all properties owned by
-----------------
it, in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as (A)
are described in the Trust Prospectus or (B) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Trust.
(b) Representations and Warranties by the Company. The Company represents and
warrants to each of the Underwriters and the Trust as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each of
the Underwriters and the Trust, as follows:
(i) Compliance with Registration Requirements. The Company meets the
-----------------------------------------
requirements for use of Form F-3 under the 1933 Act. Each of the Company
Registration Statement and any Company Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Company Registration Statement or any Company Rule 462(b)
Registration Statement pursuant to Section 8(d) of the 1933 Act has been issued
and no proceedings for either such purpose have been instituted or are pending
or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Company Registration Statement, any
Company Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective, the Company Registration Statement, the Company Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations, and did not and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
Neither the Company Prospectus nor any amendments or supplements thereto, at the
time the Company Prospectus or any such amendment or supplement was issued and
at the Closing Time (and, if any additional Company Securities are issued, at
the Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If Rule 434 is used, the Company will
comply with the requirements of Rule 434. The
10
representations and warranties in this subsection shall not apply to statements
in or omissions from the Company Registration Statement (or any amendments
thereto) or the Company Prospectus (or any amendments or supplements thereto)
made in reliance upon and in conformity with information furnished to the
Company in writing by the Underwriters through Xxxxxxx Xxxxx expressly for use
in the Company Registration Statement (or any amendments thereto) or Company
Prospectus (or any amendments or supplements thereto).
Each Company preliminary prospectus or prospectus filed pursuant to
Rule 424(b) under the 1933 Act complied when so filed in all material respects
with the 1933 Act Regulations.
The ADR Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the ADR Registration Statement
pursuant to Section 8(d) of the 1933 Act has been issued and no proceedings for
either such purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. At the time
the ADR Registration Statement and any post-effective amendments thereto became
effective, the ADR Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations, and did not and will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
Neither the ADR Prospectus nor any amendments or supplements thereto, at the
time the ADR Prospectus or any such amendment or supplement was issued and at
the Closing Time (and, if any additional ADSs are issued, at the Date of
Delivery), included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ii) Independent Accountants. The accountants who certified certain financial
-----------------------
statements and supporting schedules included in the Company Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iii) Incorporated Documents. The documents incorporated or deemed to be
-----------------------
incorporated by reference in the Company Registration Statement and the Company
Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations"), and, when read together with the other information in the
Company Prospectus, at the time the Company Registration Statement became
effective, at the time the Company Prospectus was issued and at the Closing Time
or Date of Delivery, as the case may be, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
11
(iv) Financial Statements. The financial statements included in the Company
--------------------
Registration Statement and the Company Prospectus, together with the related
schedules and notes, present fairly the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with accounting principles generally accepted
in Australia ("A-GAAP") applied on a consistent basis throughout the periods
involved and a footnote to said financial statements reconciles said financial
statements to accounting principles generally accepted in the United States in
accordance with the 1933 Act Regulations. The selected financial data, the
summary financial information included in the Company Prospectus present fairly
the information shown therein and have been compiled on a basis consistent with
the audited financial statements included in the Company Registration Statement.
(v) Existence of the Company. The Company has been duly incorporated, is
------------------------
validly existing as a corporation under the laws of the State of Victoria,
Commonwealth of Australia, and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this Agreement
or any other agreement or instrument contemplated by this Agreement or the
Registration Statements; and the Company is duly registered or qualified as a
foreign corporation to transact business in each other jurisdiction, domestic or
foreign, in which such registration or qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to register or qualify would not have a, and could
not reasonably be expected to have a prospective, material adverse effect on the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole, in each
case whether or not arising in the ordinary course of business, or on the
ability of the Company or any of its subsidiaries to perform their respective
material obligations under this Agreement or the other agreements or instruments
contemplated by this Agreement or the Registration Statements (a "Material
Adverse Company Effect").
(vi) Existence of Significant Subsidiaries. Each Significant Subsidiary (as
-------------------------------------
defined herein) of the Company has been duly organized, is validly existing as a
corporation, business trust or limited liability in good standing (if such
concept is applicable in the jurisdiction of its incorporation) under the laws
of the jurisdiction of its incorporation, has power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact business
and is in good standing (if applicable as aforesaid) in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to be
in good standing, to have such power or authority, or to be so qualified, as the
case may be, would not result in a, and could not reasonably be expected to have
a prospective, Material Adverse Company Effect; except as otherwise disclosed in
the Registration Statements, all of the issued and outstanding capital stock of
or equity interests in each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and is owned by the Company, directly or through
subsidiaries, free and clear
12
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of or interests in any
Significant Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Significant Subsidiary. For purposes of
this Agreement, a "Significant Subsidiary" shall mean the Distribution Trust,
ANZ Funds Pty Ltd. ("ANZ Funds"), the ANZ Borrower, the ANZ Affiliate and any
other subsidiary of the Company which has, on the basis of the latest audited
financial statements included in the Company Prospectus, total assets, interest
income or non-interest income (determined on a consolidated basis for such
subsidiary and its consolidated subsidiaries) in excess of 5% of the
consolidated assets, consolidated interest income or consolidated non-interest
income, as the case may be, of the Company.
(vii) Capitalization. The authorized, issued and outstanding capital stock of
--------------
the Company is as set forth in the Company Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements, or employee benefit plans
referred to in the Company Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Company Prospectus, including, without
limitation, the dividend reinvestment plan, employee share purchase scheme,
bonus option plan, group share option scheme, senior officers' share purchase
scheme and directors' share and option purchase scheme of the Company). The
shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and, except as otherwise set forth in the Company
Prospectus, are fully paid and will not subject the holder thereof to any
personal liability to the Company or to creditors of the Company; none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company; the
Preference Shares, when issued and delivered in connection with the payment by
the Jersey Subsidiary to the Company in consideration for the issuance by the
Depositary to the Jersey Subsidiary of ADSs pursuant to the terms of the ADSs
Subscription Agreement, dated November __, 1998 (the "ADSs Subscription
Agreement"), between the Company and the Jersey Subsidiary, will be validly
issued and fully paid, will not subject the holder thereof to any personal
liability to the Company or to the creditors of the Company, will not be subject
to preemptive or other similar rights and will conform in all material respects
to all statements relating thereto in the Prospectuses. The Deposit Agreement
has been duly authorized, executed and delivered by the Company and constitutes
a legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether such enforcement may be sought in a
proceeding at law or in equity); upon issuance by the Depositary of the ADSs
against the deposit of Preference Shares in accordance with the provisions of
the Deposit Agreement, such ADSs will be duly and validly issued and the persons
in whose names the ADSs are registered will be entitled to the rights specified
in the Deposit Agreement; and the ADSs and the Deposit Agreement conform to the
descriptions thereof contained in the Company Prospectus;
(viii) No Material Adverse Change in Business. Neither the Company nor any of
the Significant Subsidiaries has sustained since the date of the latest audited
financial
13
statements included in the Company Prospectus any loss or interference with its
business from fire, explosion, flood or any other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Company
Prospectus and except for any such matters that have not had a, and could not
reasonably be expected to have a prospective, Material Adverse Company Effect.
Since the respective dates as of which information is given in the Company
Registration Statement and the Company Prospectus, there has not been any
reduction in the share capital and reserves applicable to shareholders of the
Company in excess of A$250 million or any increase in long-term debt in excess
of A$1 billion of the Company or any of its subsidiaries. Since the respective
dates as of which information is given in the Company Registration Statement and
the Company Prospectus, there has not occurred any material adverse change, or
any development which the Company has reasonable cause to believe involves a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, in each case whether or not
arising in the ordinary course of business, otherwise than as set forth or
contemplated in the Company Prospectus.
(ix) Authority. The ANZ Affiliate has duly authorized the execution and
---------
delivery by it of, and has full right, power and authority to enter into and
perform its obligations under, the Expense and Indemnity Agreement; each of the
Distribution Trust and the ANZ Borrower has duly authorized the execution and
delivery by it of, and has full right, power and authority to enter into and
perform its obligations under, the ANZ Loan Agreement, to be dated November ___,
1998, between the ANZ Borrower and the Distribution Trust (the "ANZ Loan
Agreement"); ANZ Funds has duly authorized the execution and delivery by it of,
and has full right, power and authority to enter into and perform its
obligations under, the Distribution Trust Agreement, to be dated November ___,
1998, among the Company, the distribution trustees named therein, the U.K.
Company, ANZ Funds and the administrators named therein (the "Distribution Trust
Agreement"); and the Company has duly authorized the execution and delivery by
it of, and has full right, power and authority to enter into and perform its
obligations under, each of the License Agreement, the Deposit Agreement, the
ADSs Subscription Agreement, the Distribution Trust Agreement, this Agreement,
the Support Agreement, dated November __, 1998, between the Company and the ANZ
Affiliate (the "Support Agreement") and any other agreements and instruments
contemplated by this Agreement, or the Registration Statements to which it is a
party (collectively, together with the Expense and Indemnity Agreement and the
ANZ Loan Agreement, the "Fundamental Company Documents").
(x) Execution and Delivery of Purchase Agreement. This Agreement has been duly
--------------------------------------------
authorized, executed and delivered by the Company.
(xi) Execution and Delivery of the Other Fundamental Company Documents. At the
-----------------------------------------------------------------
Closing Time, each Fundamental Company Document (other than this Agreement) will
have been duly executed and delivered by the Company and/or the Significant
Subsidiary which is a party thereto and (assuming the due authorization,
execution and delivery by the other parties thereto) will constitute a valid and
binding agreement of the
14
Company and/or such Significant Subsidiary, as the case may be, enforceable
against the Company and/or such Significant Subsidiary, as the case may be, in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether such enforcement may be sought in a
proceeding at law or in equity).
(xii) Absence of Defaults and Conflicts. Neither the Company nor any of its
---------------------------------
subsidiaries is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any subsidiary is
subject except for such defaults as are disclosed in the Company Prospectus or
that would not result in a, and could not reasonably be expected to involve a
prospective, Material Adverse Company Effect; and the execution, delivery and
performance by the Company and/or the applicable Significant Subsidiary, as the
case may be, of this Agreement and the other Fundamental Company Documents and
the consummation by the Company and/or each Significant Subsidiary of the
transactions contemplated herein and therein and compliance by the Company and
each Significant Subsidiary with their respective obligations hereunder and
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or
Company Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries may be bound, or to
which any of the property or assets of the Company or any of its subsidiaries is
subject (except for such conflicts, breaches, defaults or Company Repayment
Events or liens, charges or encumbrances that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Company Effect), nor
will such action result in any violation of the provisions of the Constitution
of the Company or of any applicable law, statute, rule or regulation of any
government or government instrumentality having jurisdiction over the Company or
any of its subsidiaries or any of their assets or properties (other than any
state securities or "blue sky" law, statute, rule or regulation, as to which no
representation and warranty is made), or any applicable judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or any
of their assets or properties (except in all such cases for such violations
that, individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Company Effect). As used herein, a "Company Repayment Event"
means any event or condition which, with notice or lapse of time or both, gives
the holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company
or any subsidiary thereof.
15
(xiii) Absence of Proceedings. There is no action, suit, proceeding, inquiry
----------------------
or investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending with respect to which the Company has received
service of process, or, to the knowledge of the Company, threatened, to which
the Company or any of its subsidiaries is a party or of which any of their
property is subject, which is required to be disclosed in the Company
Registration Statement or the Company Prospectus (other than as disclosed
therein), or which, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Company Effect.
(xiv) Absence of Further Requirements. To the best of the Company's knowledge,
-------------------------------
no declaration or filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the execution, delivery or
performance by the Company or any of its Significant Subsidiaries, as the case
may be, of this Agreement or the other Fundamental Company Documents, or the
consummation by the Company of the transactions contemplated herein or therein,
except (i) such as have been already obtained or as may be required under the
1933 Act or the 1933 Act Regulations or state securities laws, (ii) such
consents, approvals, authorizations, registrations or qualifications as may be
required by the Reserve Bank of Australia or Australian Prudential Regulation
Authority and (iii) such consents, approvals, authorizations, orders,
registrations or qualifications the failure to obtain or make which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Company Effect or will not affect the validity of the Company
Securities or the rights of the holders thereof or prevent or delay the
consummation of the transactions contemplated herein or in the Company
Registration Statement.
(c) Officer's Certificates. Any certificate signed by any officer of the
Trust, the Company or any of the Company's subsidiaries delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
(d) Representations and Warranties of the Underwriters. Each Underwriter
represents, warrants and agrees that:
(i) (A) it has not (directly or indirectly) offered for subscription
or purchase or issued invitations to subscribe for or purchase nor has it sold
the TrUEPrS, (B) will not (directly or indirectly) offer for subscription or
purchase or issue invitations to subscribe for or purchase or sell the TrUEPrS,
and (C) it has not distributed and will not distribute any draft or definitive
prospectus, advertisement or other offering material, in each case in Australia
or to any resident of Australia (including corporations and other entities
organized under the laws of Australia but not including a permanent
establishment of such corporations or other entities located outside Australia);
and
(ii) (A) it has not offered or sold and prior to the date six months
after the date hereof, will not offer or sell any TrUEPrS to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or
16
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (B) it has complied and will comply with
all applicable provisions of the Financial Services Act of 1986 with respect to
anything done by it in relation to the TrUEPrS in, from or otherwise involving
the United Kingdom, and (C) it has only issued or passed on, and will only issue
or pass on, in the United Kingdom any document received by it in connection with
the issue of the TrUEPrS to a person who is of a kind described in Article 11(3)
of the Financial Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom the document may otherwise lawfully be issued
or passed on.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price of US$25 per TrUEPrS, the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional number of
Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional __________ Option Securities at the
price of US$25 per TrUEPrS plus accrued dividend distributions, if any, from the
Closing Time. The option hereby granted will expire 30 days after the date
hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by Xxxxxxx Xxxxx
to the Trust and the Company setting forth the number of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date
of delivery for the Option Securities (a "Date of Delivery") shall be determined
by Xxxxxxx Xxxxx, but shall not be later than seven full business days or less
than two business days after the exercise of said option, nor in any event prior
to Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters, acting severally
and not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as Xxxxxxx Xxxxx in
its discretion shall make to eliminate any sales or purchases of fractional
securities.
(c) Payment. Payment of the purchase price for, and delivery of certificates
for, the Initial Securities shall be made at the offices of Brown & Wood LLP,
One World Trade Center, New York, New York 10048, or at such other place as
shall be agreed upon by Xxxxxxx Xxxxx, the Trust and the Company, at 9:00 A.M.
(Eastern time) on the fifth business day after the date hereof (unless postponed
in accordance with the provisions of Section 10), or such other time not later
than ten business days after such date as shall be agreed upon by Xxxxxxx Xxxxx,
the Trust
17
and the Company (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by Xxxxxxx Xxxxx, the
Trust and the Company on each Date of Delivery as specified in the notice from
Xxxxxxx Xxxxx to the Trust and the Company.
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Trust, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the TrUEPrS to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by Closing Time
or the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Underwriters' Compensation. For the Underwriters' commitments hereunder
and in view of the fact that the proceeds of the sale of the TrUEPrS purchased
hereunder will ultimately be invested in the Preference Shares, the Company
hereby agrees to pay at Closing Time and each Date of Delivery, if any, to the
Underwriters in immediately available funds, US$________ for each TrUEPrS
purchased by them at Closing Time or such Date of Delivery, as the case may be;
provided that such compensation for sales of more than _________ TrUEPrS to any
single purchaser will be US$____ for each TrUEPrS purchased by them.
(e) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before Closing Time or the relevant Date of Delivery, as the case
may be. The certificates for the Initial Securities and the Option Securities,
if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to Closing Time or the relevant Date of Delivery, as
the case may be.
SECTION 3. Covenants.
---------
(a) Covenants of the Trust. The Trust covenants with each Underwriter as
follows:
(i) Compliance with Securities Regulations and Commission Requests. The
--------------------------------------------------------------
Trust, subject to Section 3(a)(ii), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, (A) when any post-effective
amendment to the Trust Registration Statement shall become effective, or any
supplement to the Trust Prospectus or any amended Trust Prospectus shall have
been filed, (B) of the receipt of any comments from
18
the Commission, (C) of any request by the Commission for any amendment to the
Trust Registration Statement or any amendment or supplement to the Trust
Prospectus or for additional information, and (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the Trust
Registration Statement or of any order preventing or suspending the use of any
Trust preliminary prospectus or of any order pursuant to Section 8(e) of the
1940 Act, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Trust will promptly effect the filings
necessary pursuant to Rule 497(h) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 497(h) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Trust will make
every reasonable effort to prevent the issuance of any stop order pursuant to
Section 8(d) of the 1933 Act or any order pursuant to Section 8(e) of the 1940
Act and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(ii) Filing of Amendments. The Trust will give the Representatives and the
--------------------
Company notice of its intention to file or prepare any amendment to the Trust
Registration Statement (including any filing under Rule 462(b)), any Trust Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Trust Registration Statement at the time it became effective or to the
Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representatives and the Company with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Representatives and
the Company or their respective U.S. counsel shall object.
(iii) Delivery of Trust Registration Statement. The Trust has furnished or
----------------------------------------
will deliver to the Representatives and the Company and their respective
counsel, without charge, signed copies of the Trust Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives and the Company, without charge, a conformed copy of the Trust
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Trust
Registration Statement and each amendment thereto furnished to the Underwriters
and the Company will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(iv) Delivery of Trust Prospectus. The Trust has delivered to each
----------------------------
Underwriter, without charge, as many copies of each Trust preliminary prospectus
as such Underwriter reasonably requested, and the Trust hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Trust will
furnish to each Underwriter, without charge, during the period when the Trust
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Trust Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Trust Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to
19
the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(v) Continued Compliance with Securities Laws. The Trust will comply with the
-----------------------------------------
1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, and the 1940 Act and the 1940 Act Regulations, so as to permit the
completion of the distribution of the TrUEPrS as contemplated in this Agreement
and the Trust Prospectus. If at any time when a prospectus is required by the
1933 Act to be delivered in connection with sales of the TrUEPrS, any event
shall occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters, the Company or the Trust, to amend
the Trust Registration Statement or amend or supplement any Trust Prospectus in
order that the Trust Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of any such counsel, at any such time to amend the Trust Registration
Statement or amend or supplement any Trust Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations or the 1940 Act or
the 1940 Act Regulations, the Trust will promptly prepare and file with the
Commission, subject to Section 3(a)(ii), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Trust
Registration Statement or the Trust Prospectus comply with such requirements,
and the Trust will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(vi) Blue Sky Qualifications. The Trust will use its best efforts, in
-----------------------
cooperation with the Underwriters and the Company, to qualify the TrUEPrS for
offering and sale under the applicable securities laws of such U.S. states and
territories as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Trust Registration Statement and any Trust Rule
462(b) Registration Statement; provided, however, that the Trust shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the TrUEPrS have been so qualified, the Trust will file
such statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one year
from the effective date of the Trust Registration Statement and any Trust Rule
462(b) Registration Statements.
(vii) Rule 158. The Trust will timely file such reports pursuant to the 1934
--------
Act as are necessary in order to make generally available to its securityholders
as soon as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(viii) Use of Proceeds. The Trust will use the net proceeds received by it
---------------
from the sale of the TrUEPrS in the manner specified in the Trust Prospectus
under "Use of Proceeds and Collateral Arrangements."
20
(ix) Listing. The Trust will use its best efforts to effect the listing of the
-------
TrUEPrS on the New York Stock Exchange (the "NYSE").
(x) Reporting Requirements. The Trust, during the period when the
----------------------
Prospectuses are required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations
and will file all documents required to be filed with the Commission pursuant to
the 1940 Act within the time periods required by the 1940 Act and the 1940 Act
Regulations.
(b) Covenants of the Company. The Company covenants with each Underwriter as
follows:
(i) Compliance with Securities Regulations and Commission Requests. The
--------------------------------------------------------------
Company, subject to Section 3(b)(ii), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Company Registration Statement or the ADR Registration
Statement shall become effective, or any supplement to the Company Prospectus or
the ADR Prospectus or any amended Company Prospectus or ADR Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Company Registration
Statement or the ADR Registration Statement or any amendment or supplement to
the Company Prospectus or ADR Prospectus or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Company Registration Statement or the ADR Registration Statement or of
any order preventing or suspending the use of any Company preliminary
prospectus, or of the suspension of the qualification of the Company Securities
for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(ii) Filing of Amendments. The Company will give the Representatives notice of
--------------------
its intention to file or prepare any amendment to the Company Registration
Statement (including any filing under Rule 462(b)), the ADR Registration
Statement, any Company Term Sheet or any amendment, supplement or revision to
either the prospectus included in the Company Registration Statement at the time
it became effective or the prospectus in the ADR Registration Statement at the
time it became effective or to the Company Prospectus or the ADR Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
21
(iii) Delivery of Registration Statements. The Company has furnished or will
-----------------------------------
deliver to the Representatives and counsel for the Underwriters, without charge,
signed copies of the Company Registration Statement and the ADR Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, conformed copies of the Company Registration
Statement and the ADR Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters.
(iv) Delivery of Prospectuses. The Company has delivered to each Underwriter,
------------------------
without charge, as many copies of each Company preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will furnish to
each Underwriter, without charge, during the period when the Company Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Company Prospectus (as amended or supplemented) as such
Underwriter may reasonably request.
(v) Continued Compliance with Securities Laws. The Company will comply with
-----------------------------------------
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and the Company Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Underwriters
or for the Company, to amend the Company Registration Statement or amend or
supplement any Company Prospectus in order that the Company Prospectus will not
include any untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such time to
amend the Company Registration Statement or amend or supplement any Company
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Company Registration Statement
or the Prospectuses comply with such requirements, and the Company will furnish
to the Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request, in each case, at its own expense if such
prospectus is required to be delivered within nine months of the date of this
Agreement, and otherwise at the expense of the Underwriters.
(vi) Blue Sky Qualifications. The Company will use its best efforts, in
-----------------------
cooperation with the Underwriters, to qualify the Company Securities for
offering and sale under the applicable securities laws of such U.S. states and
territories as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Company Registration
22
Statement and any Company Rule 462(b) Registration Statement; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Company Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Company Registration Statement and any Company Rule 462(b) Registration
Statements.
(vii) Rule 158. The Company will timely file such reports pursuant to the
--------
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(viii) Use of Proceeds. The Company will use the net proceeds received by it
---------------
from the sale of the Securities in the manner specified in the Company
Prospectus under "Use of Proceeds."
(ix) Listing. The Company will use its best efforts to effect the listing of
-------
the ADSs and the Preference Shares on the NYSE.
(x) Restriction on Sale of Securities. During a period of 30 days from the
---------------------------------
date of the Prospectuses, the Company will not, without the prior written
consent of the Representatives, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any Company Securities or any other preference shares of
the Company or any subsidiary thereof or any securities convertible into or
exercisable or exchangeable for Company Securities or such other preference
shares (other than, in any such case, to or with an affiliate (as defined in
Rule 12b-2 under the 1934 Act) of the Company) or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction (other than the
Fundamental Trust Agreements and the Fundamental Company Documents) that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Company Securities or any other preference shares of the
Company or any subsidiary thereof, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of Company
Securities or any other preference shares of the Company or any subsidiary
thereof or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to the Company Securities exchangeable for the TrUEPrS to be
sold hereunder.
SECTION 4. Payment of Expenses.
-------------------
(a) Trust Expenses. The Trust will pay or cause to be paid all expenses incident
to the performance of the obligations of the Trust under this Agreement,
including (i) the preparation, printing and filing of the Trust Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment and supplement thereto, (ii) the preparation,
23
printing and delivery to the Underwriters of this Agreement, any Agreement among
the Underwriters, the Fundamental Trust Agreements and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the TrUEPrS, (iii) the preparation, issuance and delivery of the
certificates for the TrUEPrS, including any charges of DTC in connection
therewith and any stock or other transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the TrUEPrS and the transfer of
the TrUEPrS between the Underwriters, (iv) the fees and disbursements of the
counsel, accountants and other advisors to the Trust, the U.K. Company, the
Jersey Holding Company, the Jersey Charitable Trust and the Jersey Subsidiary
(solely in their capacity as such and not in their capacity as counsel to the
Underwriters), (v) the qualification of the TrUEPrS under securities laws in
accordance with the provisions of Section 3 hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) any fees payable in connection with the
rating of the TrUEPrS, (vii) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Trust Term Sheets and of the Trust
Prospectus and any amendments or supplements thereto, (viii) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky Survey and
any supplement thereto, (ix) the fees and expenses of any transfer agent or
registrar for the TrUEPrS, (x) the fees and expenses incurred in connection with
the listing of the TrUEPrS on the NYSE, (xi) the fees and expenses required to
establish the Trust, the U.K. Company, the Jersey Holding Company, the Jersey
Charitable Trust and the Jersey Subsidiary and to document the transactions to
which such parties are a party as contemplated by the Registration Statements
(to the extent not paid by the U.K. Company), (xii) any Australian stamp duty in
connection with the execution and delivery of this Agreement, the Fundamental
Trust Agreements, the TrUEPrS and any other agreements or instruments
contemplated by the foregoing or the Trust Registration Statement, and (xiii)
all other reasonable costs and expenses (excluding any out-of-pocket expenses
incurred by the Underwriters) incident to the performance of the obligations of
the Trust hereunder which are not otherwise specifically provided for in this
Section 4, including without limitation any Australian duties or taxes payable
in connection with the issuance, sale and delivery of the TrUEPrS or the
execution and delivery of the Fundamental Trust Agreements.
(b) Company Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of the obligations of the Company under this
Agreement, including (i) the preparation, printing and filing of the Company
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment and supplement thereto, (ii) the
Fundamental Company Documents and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Company Securities, (iii) the preparation, issuance and delivery of the
certificates for the Company Securities, including any charges of DTC in
connection therewith and any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Company
Securities, (iv) the fees and disbursements of the counsel, accountants and
other advisors to the Company, the Distribution Trust, the ANZ Borrower, ANZ
Funds and the ANZ Affiliate; (v) the qualification of the Company Securities
under securities laws in accordance with the provisions of Section 3 hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of
The Bank of New York, as Depositary, including the fees and disbursements of
counsel for the Depositary in connection
24
with the Deposit Agreement, if any, (vii) any fees payable in connection with
the rating of the Company Securities, (viii) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Company Term Sheets
and of the Company Prospectus and any amendments or supplements thereto, (ix)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (x) the fees and expenses of any transfer
agent or registrar for the Company Securities, (xi) the fees and expenses
incurred in connection with the listing of the Company Securities on the NYSE,
(xii) the fees and expenses required to establish the Distribution Trust and to
document the transactions to which the Distribution Trust, the ANZ Borrower, ANZ
Funds and the ANZ Affiliate are a party as contemplated by the Registration
Statements, (xiii) any Australian stamp duty in connection with the execution
and delivery of this Agreement, the Fundamental Company Documents, the Company
Securities and any other agreements or instruments contemplated by the foregoing
or the Company Registration Statement, and (xiv) all other reasonable costs and
expenses (excluding any out-of-pocket expenses incurred by the Underwriters)
incident to the performance of the obligations of the Company hereunder which
are not otherwise specifically provided for in this Section 4, including without
limitation any Australian duties or taxes payable in connection with the
issuance, sale and delivery of the Company Securities or the execution and
delivery of the Fundamental Company Documents.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section 9
hereof (other than as a result of a failure of a condition relating to the
Trust, the Trust Registration Statement, opinions of counsel for the Trust, the
Trustee Certificate or the failure by any party other than the Company, the
Distribution Trust, ANZ Funds, the ANZ Affiliate or the ANZ Borrower to execute
and deliver any Fundamental Trust Agreement or Fundamental Company Document),
the Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Trust and the Company contained in Section
1 hereof or in certificates of any officer of the Trust or the Company, any
subsidiary of the Company, the U.K. Company, the Jersey Subsidiary, the ANZ
Affiliate, the Jersey Holding Company, the Jersey Charitable Trust, the
Distribution Trust, ANZ Funds and the ANZ Borrower delivered pursuant to the
provisions hereof, to the performance by the Trust and the Company in all
material respects of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statements. The Registration Statements,
including any Rule 462(b) Registration Statements, have become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statements shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. Prospectuses containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 497(h) and/or Rule 424(b), as applicable, (or a post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if the
Trust or the Company has elected to rely upon Rule 434, a Trust Term Sheet or a
Company Term
25
Sheet, as appropriate, shall have been filed with the Commission in accordance
with Rule 497(h) or Rule 424(b) respectively.
(b) Opinions of Counsel for Trust, etc. At Closing Time, the Representatives
shall have received the favorable opinions, dated as of Closing Time, of Xxxxx &
Wood llp, Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., Linklaters & Paines and Xxxxxxx
Xxxxxx & Co., U.S. Counsel, Delaware Counsel, U.K. Counsel and Jersey Counsel,
respectively, for the Trust, the U.K. Company, the Jersey Subsidiary, the Jersey
Holding Company and the Jersey Charitable Trust, in form and substance
satisfactory to counsel for the Underwriters.
(c) Opinions of Counsel for Company, etc. At Closing Time, the Representatives
shall have received the favorable opinions, dated as of Closing Time, of Xxxxx
Xxxxxx Xxxxxxx, Bell Gully Buddle Xxxx, and Xxxxxxxx & Xxxxxxxx, Australian
Counsel, New Zealand Counsel and U.S. Counsel, respectively, for the Company,
the Distribution Trust, the ANZ Borrower, ANZ Funds and the ANZ Affiliate, in
form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters.
(d) Opinion of Counsel and Advisors for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxx Xxxxx & Xxxxxxx, PricewaterhouseCoopers Securities Limited and
Brown & Wood LLP, Australian Counsel, Australian tax advisor and U.S. Counsel,
respectively, for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters with respect to such matters as
the Representatives may require. In giving such opinion such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the law of
the State of New York and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(e) Opinion of Counsel for The Bank of New York. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxx Xxxxxx & Xxxxxx, counsel for The Bank of New York, in its
capacities as Administrator, Custodian, Paying Agent, Depositary and Collateral
Agent, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters.
(f) Trustee's Certificate. At Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Trust Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs, business prospects, management,
investment objectives or investment policies of the Trust or on the ability of
the Trust to perform its obligations under this Agreement, any Fundamental Trust
Agreement or the other agreements or instruments contemplated by this Agreement
or the Trust Registration Statement, whether or not arising in the ordinary
course of business, otherwise than as set forth or contemplated in the Trust
Prospectus, and the Representatives shall have received a certificate of the
Managing Trustee, dated as of Closing
26
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties contained in Section 1(a) hereof are
true and correct with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Trust has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the Trust
Registration Statement pursuant to Section 8(d) of the 1933 Act, or order
pursuant to Section 8(e) of the 1940 Act, has been issued and no proceedings for
that purpose have been instituted or are pending or are contemplated by the
Commission.
(g) Company Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Company Prospectus, any material adverse change, or
any development which the Company has reasonable cause to believe involves a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholder's equity or results of operations of
the Company and its subsidiaries, taken as a whole, in each case whether or not
arising in the ordinary course of business, otherwise than as set forth or
contemplated in the Company Prospectus, and the Representatives shall have
received a certificate of an executive officer of the Company and of the chief
financial or chief accounting officer of the Company, dated as of Closing Time,
to the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Company Registration Statement
pursuant to Section 8(d) of the 1933 Act has been issued and no proceedings for
that purpose have been instituted or are pending or are contemplated by the
Commission.
(h) Company Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from KPMG Peat Marwick a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Company Registration Statement and the Company Prospectus.
(i) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from KPMG Peat Marwick a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(j) Rating. At Closing Time, the TrUEPrS shall be rated at least "a1" by Xxxxx'x
Investor's Service ("Xxxxx'x") and A- with negative outlook by Standard & Poor's
Ratings Group ("Standard & Poor's"), a division of McGraw Hill, Inc., and the
Company Securities shall be rated at least "a1" by Xxxxx'x and A- with negative
outlook by Standard & Poor's, and the Company shall have delivered to the
Representatives letters dated the Closing Time, from each such rating agency, or
other evidence satisfactory to the Representatives, confirming that the
27
TrUEPrS and the Company Securities have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned to
any of the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or
review, other than with positive implications, its rating of any of the
Company's debt securities or preferred stock.
(k) No Objection. At or prior to Closing Time, the National Association of
Securities Dealers, Inc. ("NASD") shall have confirmed that it will not raise
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(l) Fundamental Agreements. At Closing Time, each Fundamental Trust Agreement
and Fundamental Company Document shall have been executed and delivered by all
parties thereto, and all of the conditions to the obligations of the parties to
the transactions contemplated under "Use of Proceeds and Collateral
Arrangements" in the Trust Prospectus, including the parties to each Fundamental
Trust Agreement and Fundamental Company Document, shall have been satisfied or
waived by the parties entitled to the benefit of such conditions.
(m) Approval of Listings. At Closing Time, the Securities shall have been
approved for listing on the NYSE, subject only to official notice of issuance.
(n) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Trust and the Company contained herein and the statements in any Company
certificates furnished by the Trust or the Company or any subsidiaries of the
Company hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(i) Trustee's Certificate. A certificate, dated such Date of Delivery, of the
---------------------
Managing Trustee confirming that the certificate delivered at the Closing
Time pursuant to Section 5(f) hereof remains true and correct as of such
Date of Delivery.
(ii) Company Officers' Certificate. A certificate, dated such Date of
-----------------------------
Delivery, of an executive officer of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(g) hereof remains true
and correct as of such Date of Delivery.
(iii) Opinions of Counsel for Trust, etc. The favorable opinions of Xxxxx &
----------------------------------
Wood llp, Xxxxxxxx Xxxxxx & Xxxxxx, P.A., Linklaters & Paines, and Xxxxxxx
Xxxxxx & Co., U.S. Counsel, Delaware Counsel, U.K. Counsel and Jersey Counsel,
respectively, for the Trust, the U.K. Company, the Jersey Subsidiary, the Jersey
Holding Company and the Jersey Charitable Trust, each in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b) hereof.
28
(iv) Opinions of Counsel for Company, etc. The favorable opinions of Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx, Bell Gully Buddle Xxxx and Xxxxxxxx & Xxxxxxxx, Australian
Counsel, New Zealand Counsel and U.S. Counsel, respectively, for the Company,
the Distribution Trust, the ANZ Borrower, ANZ Funds and the ANZ Affiliate, each
in form and substance reasonably satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(v) Opinions of Counsel for Underwriters. The favorable opinions of Xxxxx
------------------------------------
Xxxxx & Xxxxxxx and Brown & Wood LLP, Australian Counsel and U.S. Counsel,
respectively, for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(d) hereof.
(vi) Opinion of Counsel for The Bank of New York. The favorable opinion of
-------------------------------------------
Xxxxx Xxxxxx & Xxxxxx, Counsel for The Bank of New York, in its capacities as
Administrator, Custodian, Paying Agent, Depositary and Collateral Agent, dated
such Date of Delivery, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 5(e) hereof.
(vii) Bring-down Comfort Letter. A letter from KPMG Peat Marwick, in form and
-------------------------
substance satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(i) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(o) Additional Documents. At Closing Time and at each Date of Delivery, counsel
for the Underwriters shall have been furnished with such documents and opinions
as they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all actions taken by
the Trust, the Company, the U.K. Company, the Jersey Subsidiary, the Jersey
Holding Company, the Jersey Charitable Trust, the ANZ Affiliate, the
Distribution Trust and the ANZ Borrower in connection with the issuance and sale
of the Securities and the use of the proceeds therefrom as contemplated hereby
and by the Registration Statements shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement,
or, in the case of any condition to the purchase of Option Securities on a Date
of Delivery which is after Closing Time, the obligations of the several
Underwriters to purchase the relevant Option Securities, may be terminated by
the Representatives by notice to the Company at any time at or prior to Closing
Time or such Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 6, 7, 14 and 15 shall survive any such termination
and remain in full force and effect.
29
SECTION 6. Indemnification.
---------------
(a) Indemnification of Trust and Underwriters for Company Registration Statement
and Prospectus and ADR Registration Statement and Prospectus. The Company agrees
to indemnify and hold harmless the Trust, each Underwriter and each person, if
any, who controls the Trust or any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Company Registration
Statement or the ADR Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any Company preliminary
prospectus, the Company Prospectus or the ADR Prospectus (or any amendment
or supplement thereto if the Company shall have furnished any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission to the extent not paid under clause
(i), provided that any such settlement is effected with the prior written
consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx), as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
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 Company by any Underwriter through the Representatives expressly for
use in the Company Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any Company preliminary prospectus or the Company Prospectus
(or any amendment or supplement thereto) and provided further, however,
-------- ------- -------
that the Company shall not be liable to any Underwriter or any controlling
person thereof in connection with any offering of the Securities under the
indemnity agreement in this subsection
30
paragraph (a) to the extent that any such loss, liability, claim, damage
and expense of such Underwriter or such controlling person is attributable
to any loss, liability, claim, damage and expense of a person to whom such
Underwriter sold such Securities to the extent that it shall be established
that there was not sent or given, at or prior to the written confirmation
of any such sale transaction, a copy of the Company Prospectus or of the
Company Prospectus as then amended or supplemented (which was duly
delivered to the Underwriter by the Company) in any case where such
delivery is required by the 1933 Act.
(b) Indemnification of Underwriters for Trust Registration Statement and
Prospectuses. The Company and the Trust, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Trust Registration
Statements (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any Trust preliminary prospectus or the Trust Prospectus (or
any amendment or supplement thereto if the Trust shall have furnished any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that any such settlement is
effected with the written consent of the Trust or the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx), as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
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 Trust or the Company by any Underwriter through the Representatives
expressly for use in the Trust Registration Statements (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information,
31
if applicable, or any Trust preliminary prospectus or the Trust Prospectus
(or any amendment or supplement thereto) and provided further, however,
-------- ------- ------
that neither the Trust nor the Company shall be liable to any Underwriter
or any controlling person thereof in connection with any offering of
TrUEPrS under the indemnity agreement in this subsection paragraph (a) to
the extent that any such loss, liability, claim, damage and expense of such
Underwriter or such controlling person is attributable to any loss,
liability, claim, damage and expense of a person to whom such Underwriter
sold such Securities, to the extent that it shall be established that there
was not sent or given, at or prior to the written confirmation of any such
sale transaction, a copy of the Trust Prospectus or of the Trust Prospectus
as then amended or supplemented (which was duly delivered to the
Underwriter by the Trust or the Company) in any case where such delivery is
required by the 1933 Act.
(c) Indemnification of Trust and Company and Their Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Trust, the Company, their directors, each of their officers who signed the
Trust Registration Statement or the Company Registration Statement,
respectively, and each person, if any, who controls the Trust or the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsections (a) and (b) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Trust Registration Statement (or any
amendment thereto) or in the Company Registration Statement (or any amendment or
supplement thereto), as the case may be, including the Rule 430A Information and
the Rule 434 Information relating to each, if applicable, or any Trust
preliminary prospectus or the Trust Prospectus (or any amendment or supplement
thereto) or any Company preliminary prospectus or any Company Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Trust or the Company, as the case may be, by such
Underwriter through the Representatives expressly for use in the Trust
Registration Statement (or any amendment thereto) or in the Company Registration
Statement (or any amendment or supplement thereto) or such Trust preliminary
prospectus or the Trust Prospectus (or any amendment or supplement thereto) or
any Company preliminary prospectus or any Company Prospectus (or any amendment
or supplement thereto), as the case may be.
(d) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder, except to the extent it is
materially prejudiced as a result thereof and in any event shall not relieve
such indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) or 6(b) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 6(c) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
for all indemnified parties in connection
32
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party may assume the defense of such action with counsel chosen by
it and reasonably acceptable to the indemnified parties defendant in such action
(in which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below). Notwithstanding the indemnifying party's
election to assume the defense of any action and to appoint counsel to represent
the indemnified party in such an action, the indemnified party shall have the
right to employ separate counsel (including local counsel) and conduct its own
defense of such action, and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iii) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party. Notwithstanding
anything in this Agreement to the contrary, in no event shall any indemnified
party be entitled to any indemnity or contribution under this Agreement with
respect to any settlement of any matter for which indemnity is provided
hereunder that is effected without the prior written consent of the indemnifying
party.
SECTION 7. Contribution. (a) If the indemnification provided for in Section
------------
6(a) hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by, in the case of the
indemnifying party, the Company on the one hand and, in the case of all the
indemnified parties, the Underwriters on the other hand from the offering of the
TrUEPrS and the Company Securities pursuant to this Agreement and the ADSs
Subscription Agreement, respectively, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of, in the case of the indemnifying party, the
Company on the one hand and, in the case of all the indemnified parties,
33
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the TrUEPrS
and the Company Securities pursuant to this Agreement and the ADSs Subscription
Agreement, respectively, shall be deemed to be in the same respective
proportions as the total proceeds from the offering of the Company Securities
pursuant to the ADSs Subscription Agreement (before deducting expenses) received
by the Company bear to the total underwriting compensation received by the
Underwriters in respect of the TrUEPrS sold pursuant to this Agreement, as set
forth on the cover of the Trust Prospectus, or, if Rule 434 is used, the
corresponding location on the Trust Term Sheet.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(b) If the indemnification provided for in Section 6(b) hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by, in the case of the indemnifying
parties, the Company on the one hand and, in the case of the indemnified
parties, the Underwriters on the other hand from the offering of the TrUEPrS and
the Company Securities pursuant to this Agreement and the ADSs Subscription
Agreement, respectively, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of, in the cases of the indemnifying parties, the Trust and the Company on
the one hand and, in the case of the indemnified parties, the Underwriters on
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the TrUEPrS
and the Company Securities pursuant to this Agreement and the ADSs Subscription
Agreement, respectively, shall be deemed to be in the same respective
proportions as the total proceeds from the offering of the Company Securities
pursuant to the ADSs Subscription Agreement (before deducting expenses) received
by the Company bear to the total underwriting compensation received by the
Underwriters in respect of the TrUEPrS sold pursuant to this Agreement, as set
forth on the cover of the Trust Prospectus, or, if Rule 434 is used, the
corresponding location on the Trust Term Sheet.
The relative fault of the Trust and the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue
34
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Trust or the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(c) The Trust, the Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to Section 7(a) or (b) were
determined by pro rata allocation (even if the Underwriters were treated as one
--- ----
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to in Section 7(a) or (b) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the TrUEPrS underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
For purposes of this Section 7, each person, if any, who controls a
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter; (i)
each director of the Company, (ii) each officer of the Company who signed the
Company Registration Statement, and (iii) each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company; and (i) each
officer of the Trust who signed the Trust Registration Statement and (ii) each
person, if any, who controls the Trust within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Trust. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Initial Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Trust or Company or any of its subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Trust or the Company, and shall
survive delivery of and payment for the TrUEPrS to the Underwriters.
35
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) Termination; General. The Representatives may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectuses, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
prospects, management, investment objectives or investment policies of the
Trust, or any material adverse change, or any development which the Company has
reasonable cause to believe involves a prospective material adverse change, in
or affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole, in each case whether or not arising in the ordinary course of business,
otherwise than as set forth or contemplated in the Prospectuses or (ii) if there
has occurred, since the time of execution of this Agreement, any material
adverse change in the financial markets in the United States, the United Kingdom
or the Australian national or international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in U.S., U.K. or Australian national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the TrUEPrS or to enforce contracts for the sale of the
TrUEPrS, or (iii) if, since the time of execution of this Agreement, trading in
any securities of the Company has been suspended or materially limited by the
Commission, the NYSE, or the Australian Stock Exchange Limited, or if trading
generally on the London Stock Exchange, the NYSE or the Australian Stock
Exchange Limited has been suspended or materially limited (other than a limited
trading halt arising only as a result of a request by the Company in connection
with an announcement by the Company not material and adverse to the Company), or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
if a banking moratorium has been declared by either U.S. Federal, New York,
Australian or U.K. authorities or (v) if there has been any actual or
prospective change in Australian, U.K., Jersey or U.S. tax laws or regulations
or any suspension of listing or trading or delisting of the Debt Securities by
the Luxembourg Stock Exchange, in each case, that materially and adversely
affects the Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 6, 7, 14 and 15
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the TrUEPrS which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
36
(a) if the number of Defaulted Securities does not exceed 10% of the
number of TrUEPrS to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
TrUEPrS to be purchased on such date, or with respect to any Date of
Delivery which occurs after the Closing Time, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Trust to sell the relevant Option Securities,
as the case may be, the Representatives, the Trust or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statements or Prospectus or in any other documents
or arrangements. As used herein, the term "Underwriter" includes any person
substituted for a Underwriter under this Section 10.
SECTION 11. Notices. 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 Underwriters shall be
directed to the Representatives c/x Xxxxxxx Xxxxx at North Tower, World
Financial Center, New York, New York 10281-1201, attention of Corporate
Syndicate Department; notices to the Company shall be directed to it at Level
00, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XXX 0000, Xxxxxxxxx, attention: Xxxxxxx
Xxxxxxx; and notices to the Trust shall be directed to it as c/o Puglisi &
Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
SECTION 12. PARTIES. This agreement shall each inure to the benefit of and
-------
be binding upon the Underwriters, the Trust, and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Trust and the Company and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Trust and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of TrUEPrS from
any underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
37
STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Consent to Jurisdiction. The Company agrees that any legal suit,
-----------------------
action or proceeding brought by any Underwriter or the Trust or by any person
controlling any Underwriter or the Trust, arising out of or based upon this
agreement may be instituted in any State or Federal court in the Borough of
Manhattan, City and State of New York, and, to the fullest extent permitted by
law, waives any objection which it may now or hereafter have to the laying of
venue of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such court in any suit, action or proceeding. The Company has
appointed its Executive Vice President, Americas, acting through its office at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx as its authorized agent (the
"Authorized Agent") upon which process may be instituted in any State or Federal
court in the Borough of Manhattan, City and State of New York by any Underwriter
or the Trust and expressly accepts the jurisdiction of any such court in respect
of such action. Such appointment shall be irrevocable unless and until a
successor authorized agent, located or with an office in the Borough of
Manhattan, City and State of New York, shall have been appointed by the Company
and such appointment shall have been accepted by such successor authorized
agent. The Company represents and warrants that its Executive Vice President,
Americas, has agreed to act as said agent for service of process, and the
Company agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Authorized
Agent and written notice of such service to the company shall be deemed, in
every respect, effective service of process upon the company. Notwithstanding
the foregoing, any action based on this agreement may be instituted by any party
in any competent court in the commonwealth of Australia.
SECTION 15. Judgment Currency. The Trust and the Company hereby agree to
-----------------
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any judgment or order being given or made for any amount due hereunder
or under the securities and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than U.S. dollars and as a result of
any variation as between (i) the rate of exchange at which the U.S. dollar
amount is converted into the Judgment Currency for the purpose of such judgment
or order, and (ii) the rate of exchange at which such Underwriter would have
been able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such Underwriter had such Underwriter utilized such amount
of Judgment Currency to purchase U.S. dollars as promptly as practicable upon
such Underwriter's receipt thereof. The foregoing indemnity shall constitute a
separate and independent obligation of the Trust and the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include and allowance for any
customary or reasonable or premium and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
SECTION 16. Effect of Headings. The Article and Section headings herein and
------------------
the table of contents are for convenience only and shall not affect the
construction hereof.
38
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters, the Company and the Trust in accordance with
its terms.
Very truly yours,
ANZ EXCHANGEABLE PREFERRED TRUST II
By _______________________________________
Title:
AUSTRALIA AND NEW ZEALAND BANKING GROUP
LIMITED
By _______________________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By _______________________________________________________
Authorized Signatory
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
39
SCHEDULE A
Number of
Initial
Name of Underwriter TrUEPrS
---------------------------------------------------------- ----------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated................................................
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
Total....................................................
40
