NEW SOUTH WALES TREASURY CORPORATION [•]% Notes due 20[•] US$[•] Unconditionally Guaranteed by The Crown in Right of New South Wales UNDERWRITING AGREEMENT Dated as of [•], 2009
Exhibit F
FORM OF
UNDERWRITING AGREEMENT
NEW SOUTH WALES TREASURY CORPORATION
[•]% Notes due 20[•]
US$[•]
Unconditionally Guaranteed by
The Crown in Right of New South Wales
The Crown in Right of New South Wales
Dated as of [•], 2009
Table of Contents
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION AND THE GUARANTOR |
1 | |||
SECTION 2. COVENANTS OF THE UNDERWRITERS |
9 | |||
SECTION 3. COVENANTS OF THE CORPORATION AND THE GUARANTOR |
10 | |||
SECTION 4. DELIVERY AND PAYMENT |
16 | |||
SECTION 5. PAYMENT OF EXPENSES |
16 | |||
SECTION 6. CONDITIONS OF OBLIGATIONS |
17 | |||
SECTION 7. INDEMNIFICATION |
20 | |||
SECTION 8. CONTRIBUTION |
23 | |||
SECTION 9. STATUS OF THE UNDERWRITERS; DEFAULT BY AN UNDERWRITER |
23 | |||
SECTION 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY |
24 | |||
SECTION 11. TERMINATION |
25 | |||
SECTION 12. NOTICES |
25 | |||
SECTION 13. PARTIES |
25 | |||
SECTION 14. GOVERNING LAW; WAIVER OF IMMUNITY |
26 | |||
SECTION 15. CONSENT TO SERVICE; JURISDICTION |
26 | |||
SECTION 16. JUDGMENT CURRENCY |
28 | |||
SECTION 17. STABILIZATION |
28 | |||
SECTION 18. FOREIGN TAXES |
28 | |||
SCHEDULE I — Underwriters |
I-1 | |||
SCHEDULE II — Issuer Free Writing Prospectus |
II-1 | |||
SCHEDULE III — Selling Restrictions |
III-1 | |||
ANNEX A — Form of Auditor General Comfort letter |
A-1 | |||
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X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
New South Wales Treasury Corporation (the “Corporation”), a statutory corporation constituted
under the laws of the State of New South Wales, Commonwealth of Australia, and The Crown in Right
of New South Wales (the “Guarantor”) propose to issue and sell US$[•] aggregate principal amount of
the Corporation’s [•]% Notes due 20[•], registered pursuant to the registration statement (the
“Registration Statement”) referred to in Section 1.A(a) of this Agreement (the “Notes”), guaranteed
pursuant to Section 22A(1) of the Public Authorities (Financial Arrangements) Xxx 0000 of New South
Wales (the “PAFA Act”) by the Guarantor (the “Guarantee”). The Notes are to be issued under a
fiscal agency agreement, dated [as of the date hereof] (the “Fiscal Agency Agreement”), among the
Corporation, Citibank N.A., London Branch, as Paying Agent, Transfer Agent and Registrar, and
Citicorp International Limited, as Fiscal Agent. Subject to the terms and conditions set forth
herein, the Corporation hereby appoints you as lead manager (the “Manager”) to act on behalf of the
underwriter(s) named in Schedule I hereto (the “Underwriters”), and agrees to sell to the
Underwriters, and the Underwriters agree to purchase, severally and not jointly, the principal
amounts of the Notes set forth opposite their names in Schedule I hereto at a purchase price equal
to [•]% of the principal amount of the Notes (less the underwriting discount or commission of
[•]%), plus accrued interest, if any, on the Notes from [•], 2009 to the date of payment and
delivery of the principal amount of the Notes.
SECTION 1. Representations and Warranties of the Corporation and the Guarantor
A. The Corporation represents and warrants to, and acknowledges and agrees with, each
Underwriter as follows:
(a) A registration statement on Schedule B (File No. 333-[•]) (the “Initial
Registration Statement”) in respect of the Notes and the Guarantee has been filed with the
Securities and Exchange Commission (the “Commission”); the Initial Registration Statement
and any post-effective amendment thereto, each in the form heretofore delivered to the
Manager, and, excluding exhibits thereto, delivered to the Manager for each of the other
Underwriters, have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a “Rule 462(b)
Registration Statement”), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the “Act”), which became effective
upon filing, no other document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the
rules and regulations of the Commission under the Act (the “Securities Act Regulations”) is
hereinafter called a “Preliminary Prospectus”; the Preliminary Prospectus relating to the
Notes and the Guarantee that was included in the Registration Statement immediately prior to
the Applicable Time (as defined in Section 1.A.(c) hereof) together with each Issuer Free
Writing Prospectus (as defined below) listed in Part B of Schedule II hereto is hereinafter
called the “Time of Sale Prospectus”; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto
and including the information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 3.A.(b) hereof
and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective, each as amended at the time such part of
the Initial Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the “Registration Statement”; such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the “Prospectus”; and any
“issuer free writing prospectus” as defined in Rule 433 under the Act (including any Term
Sheet (as defined below)) relating to the Notes is hereinafter called an “Issuer Free
Writing Prospectus”.
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Securities Act Regulations, and did 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, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Corporation by an Underwriter through a Manager
expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is [•] [a.][p.]m.
(Eastern time) on the date of this Agreement; the Time of Sale Prospectus, as of the
Applicable Time did not, and as of the Time of Delivery (as defined below) will not, include
any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II
hereto does not conflict with the information contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus, and each Issuer Free Writing Prospectus, as
supplemented by and
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taken together with the Preliminary Prospectus as of the Applicable Time did not, and
as of the Time of Delivery (as defined in Section 4(b)) will not, include any untrue
statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not apply to
statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Corporation by any Underwriter
through a Manager expressly for use therein;
(d) The Registration Statement conforms, and the Time of Sale Prospectus, the
Prospectus and any further amendments or supplements to the Registration Statement, the Time
of Sale Prospectus or the Prospectus will conform, in all material respects to the
requirements of the Act and the Securities Act Regulations and do not and will not, as of
the applicable effective date as to each part of the Registration Statement and as of the
applicable filing date as to the Prospectus and any amendment or supplement thereto, 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; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to
the Corporation by an Underwriter through a Manager expressly for use therein;
(e) The Corporation has not distributed and will not distribute, prior to the Time of
Delivery (as defined in Section 4(b)), any offering material in connection with the offering
and sale of the Notes and the Guarantee other than each Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus (as approved by the Underwriters pursuant to
Section 3.A(h)) or the Registration Statement, each as amended or supplemented prior to or
as at the Time of Delivery;
(f) The Corporation is not and, after giving effect to the offering and sale of the
Notes, will not be required to register as an “investment company”, as such term is defined
in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(g) The financial statements of the Corporation included in the Registration Statement,
the Time of Sale Prospectus and the Prospectus present fairly the financial position and
changes in cash flows of the Corporation as at the dates indicated and the results of its
operations for the periods specified;
(h) Since the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, except as otherwise stated
therein or contemplated thereby, (i) there has been no material adverse change in the
condition, financial or otherwise, of the Corporation, or in the earnings, business affairs
or business prospects of the Corporation, whether or not arising in the ordinary course of
business and (ii) there have been no material transactions entered into by the Corporation
other than those in the ordinary course of business;
(i) The Corporation is not in default in the payment of principal of, or
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any premium or interest on, any of its outstanding indebtedness for money borrowed and
is not otherwise in default under any agreement or instrument evidencing or relating to any
outstanding indebtedness for money borrowed if such default would lead to an event of
default if not cured within any period of grace provided for therein; and neither the
execution and delivery of, nor compliance with, this Agreement or the Notes will conflict
with, or constitute a breach of, or a default under, any agreement or other instrument to
which the Corporation is a party or by which it is bound or any law or regulation applicable
to it;
(j) No litigation or proceeding of any kind is pending or, to the knowledge of the
Corporation, threatened, attacking, or in any manner questioning the proceedings and
authority under which the Notes are to be issued or affecting the validity thereof, and no
authority or proceedings for the issuance of the Notes have been repealed, revoked or
rescinded in whole or in part; and no such litigation or proceeding of any kind is pending,
or to the knowledge of the Corporation, threatened against or affecting the Corporation
which in any such case could reasonably be expected to have a material adverse effect on the
ability of the Corporation to perform its payment obligations under the Notes or on the
transactions contemplated herein;
(k) The Notes have been duly authorized for issuance and sale pursuant to this
Agreement (or will have been so authorized prior to their issuance) and, when executed,
issued, authenticated and delivered pursuant to the provisions of this Agreement and of the
Fiscal Agency Agreement against payment of the consideration therefor in accordance with
this Agreement, the Notes will be valid and legally binding obligations of the Corporation
enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors’ rights and to general equity principles, and will, by virtue of the
Guarantee to be given by the Guarantor pursuant to Section 22A(1) of the PAFA Act, be
guaranteed as to payment of all amounts owing thereon by the Guarantor, and will be entitled
to the benefits of the Fiscal Agency Agreement in the form heretofore delivered to the
Underwriters; and the Notes and the Fiscal Agency Agreement conform in all material respects
to all statements relating thereto contained in the Time of Sale Prospectus and the
Prospectus;
(l) The Corporation is a statutory corporation of the State of New South Wales
constituted and governed by the Treasury Corporation Xxx 0000 of New South Wales and has
full power and authority to enter into this Agreement and the Fiscal Agency Agreement and to
perform and comply with the terms and provisions of the Notes, this Agreement and the Fiscal
Agency Agreement, and all action required to be taken for the due and proper authorization,
execution and delivery by the Corporation of the Notes, this Agreement and the Fiscal Agency
Agreement and the consummation of the transactions contemplated hereby and thereby, as they
each relate to the Corporation, has been duly and validly taken;
(m) The Notes and the Fiscal Agency Agreement have each been duly authorized by the
Corporation and, when duly executed and delivered in accordance with their respective terms
by each of the parties thereto, will constitute
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valid and binding obligations of the Corporation enforceable against the Corporation in
accordance with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights and to
general equity principles;
(n) The execution and delivery of the Notes, this Agreement and the Fiscal Agency
Agreement, the consummation of the transactions herein and therein contemplated and the
compliance with the terms and provisions herein and therein do not and will not conflict
with or result in a breach of any of the terms or provisions of, or constitute a default
under, the laws of the State of New South Wales or the Commonwealth of Australia or any
regulations, orders or judgments to which the Corporation or any of its assets is subject or
any agreement or instrument to which the Corporation is a party or by which it is bound;
(o) The Corporation acknowledges and agrees that each of the Underwriters is acting
solely in the capacity of an arm’s length contractual counterparty to the Corporation and
the Guarantor with respect to the offering of Notes contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Corporation, the Guarantor or any other person;
additionally, no Underwriter is advising the Corporation, the Guarantor or any other person
as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction; the
Corporation shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the
Corporation or the Guarantor with respect thereto; any review by the Underwriters of the
Corporation, the Guarantor, the transaction contemplated hereby or other matters relating to
such transactions will be performed solely for the benefit of the Underwriters and shall not
be on behalf of the Corporation or the Guarantor;
(p) All consents, authorizations, licenses or approvals of and registrations and
filings with any governmental or regulatory authority required in connection with the
issuance and sale of the Notes and the execution and delivery of this Agreement and the
Fiscal Agency Agreement by the Corporation as herein contemplated and the performance of the
Corporation’s payment obligations under the Notes and the performance of the terms of this
Agreement and the Fiscal Agency Agreement and the performance of the Guarantor’s obligations
under the Guarantee have been obtained and are in full force and effect, except for such
consents, authorizations, licenses or approvals of and registrations and filings with any
governmental or regulatory authority as may be required under applicable U.S. state
securities laws in connection with the purchase and resale of the Notes by the Underwriters;
(q) The obligations of the Corporation under the Notes have the benefit of the
statutory charge contained in Section 22C(1) of the PAFA Act on the income and revenues of
the Corporation from whatever source such income and revenues arise; the moneys payable
under the Notes by virtue of Section 22G(1) of the PAFA
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Act rank and will continue to rank equally without preference by reason of priority of
date or otherwise with all obligations to repay financial accommodation, financial
adjustments and joint financing arrangements (as each of those terms is defined in the PAFA
Act) which repayment is secured by the income and revenue of the Corporation;
(r) Subject to compliance with the requirements of Section 128F of the Income Tax
Assessment Xxx 0000 of the Commonwealth of Australia, neither the Corporation nor the
Guarantor is required by any law or regulation or by any relevant taxing authority in the
jurisdiction in which the Corporation or the Guarantor is constituted or is resident for
tax purposes to make any deduction or withholding from any payment under the Notes or the
Guarantee for or on account of any income, registration, transfer or turnover taxes,
customs or other duties or tax of any kind;
(s) None of the Corporation, any of its subsidiaries or, to the knowledge of the
Corporation, any director, officer, agent, employee or affiliate of the Corporation or any
of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Corporation
will not directly or indirectly use the proceeds of the offering of the Notes hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC;
(t) The Corporation has not taken, directly or indirectly, any action designed to or
that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Notes in violation of applicable law; and
(u) The Corporation has the power to submit, and pursuant to this Agreement, the Notes
and the Fiscal Agency Agreement has submitted, or at the Time of Delivery will have
submitted, legally, validly, effectively and irrevocably, to the jurisdiction of any State
or Federal court in The City of or State of New York; and the Corporation has the power to
designate, appoint and empower, and pursuant to this Agreement, the Notes and the Fiscal
Agency Agreement has, or at the Time of Delivery will have, designated, appointed and
empowered, validly, effectively and irrevocably, an agent for service of process in any suit
or proceeding based on or arising under this Agreement, the Notes and the Fiscal Agency
Agreement in any State or Federal court in The City of or State of New York, as provided
herein and in such documents.
B. The Guarantor represents and warrants to, and acknowledges and agrees with, each
Underwriter as follows:
(a) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Securities Act Regulations, and, insofar as it expressly
relates to the Guarantor, did not contain an untrue statement of a material fact or omit to
state a material fact
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required to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to the Corporation by
an Underwriter through a Manager expressly for use therein;
(b) Insofar as it expressly relates to the Guarantor, the Time of Sale Prospectus, as
of the Applicable Time, did not, and as of the Time of Delivery (as defined in Section 4(b))
will not, include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus listed on
Schedule II hereto, insofar as it expressly relates to the Guarantor, does not conflict with
the information contained in the Registration Statement, the Preliminary Prospectus or the
Prospectus, and, insofar as it expressly relates to the Guarantor, each Issuer Free Writing
Prospectus, as supplemented by and taken together with the Preliminary Prospectus, as of the
Applicable Time did not, and as of the Time of Delivery (as defined in Section 4(b)) will
not, include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information furnished in writing to the
Corporation by any Underwriter through a Manager expressly for use therein;
(c) The Registration Statement conforms, and the Time of Sale Prospectus, the
Prospectus and any further amendments or supplements to the Registration Statement, the Time
of Sale Prospectus, or the Prospectus will conform, in all material respects to the
requirements of the Act and the Securities Act Regulations and, insofar as it expressly
relates to the Guarantor, do not and will not, as of the applicable effective date as to
each part of the Registration Statement and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Corporation by an Underwriter
through a Manager expressly for use therein;
(d) The guarantee of the Notes by the Guarantor is given under Section 22A(1) of the
PAFA Act; the PAFA Act is a valid enactment of the State of New South Wales; the Guarantee
constitutes the valid, binding and unconditional guarantee of the Guarantor of all amounts
that may become payable by the Corporation on or in respect of each Note in the manner
provided in such Note, including, without limitation, the principal and any premium,
interest, or additional amounts payable in respect of such Note, when the same shall become
due and payable, whether at maturity or otherwise; and the Guarantee of the Guarantor
conforms in all material respects to all statements relating thereto in the Time of
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Sale Prospectus and the Prospectus;
(e) The Guarantor has not distributed and will not distribute, prior to the Time of
Delivery (as defined in Section 4(b)), any offering material in connection with the offering
and sale of the Notes and the Guarantee other than each Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus (as approved by the Underwriters pursuant to
Section 3.A(h)) or the Registration Statement, each as amended or supplemented prior to or
as at the Time of Delivery;
(f) The financial report of the Guarantor included in the Registration Statement, the
Time of Sale Prospectus and the Prospectus (i) presents fairly, in all material respects,
the financial position of the Total State Sector as at June 30, 2008, and its financial
performance and cash flows for the year then ended in accordance with Australian Accounting
Standards (including the Australian Accounting Interpretations), (ii) is in accordance with
the Public Finance and Audit Xxx 0000 of New South Wales and (iii) accords with the books
and records of the Treasurer of the State of New South Wales;
(g) Since the respective dates as of which information is given in the Registration
Statement, the Time of Sale Prospectus and the Prospectus in respect of the Guarantor,
except as otherwise stated therein or contemplated thereby, (i) there has been no material
adverse change in or affecting the financial, economic or political conditions or the
financial or economic prospects of the Guarantor, and (ii) the due payment of the Notes as
to principal and interest when the same shall become due and payable whether at maturity or
otherwise will be guaranteed by the Guarantor;
(h) The Guarantor has full power and authority to enter into this Agreement, to
Guarantee the Notes and to perform and comply with the terms and provisions of this
Agreement to be performed and complied with by it; all action required to be taken for the
due and proper authorization, execution and delivery by the Guarantor of this Agreement and
the consummation of the transactions contemplated hereby as they relate to the Guarantor has
been duly and validly taken; and the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and the compliance with the terms and
provisions herein, as they each relate to the Guarantor, do not and will not result in a
breach of any of the provisions of the laws of the State of New South Wales or the
Commonwealth of Australia or result in a breach of any of the terms or provisions of or
constitute a default under any agreement or instrument to which the Guarantor is a party or
by which it is bound;
(i) No litigation or proceeding of any kind is pending or, to the knowledge of the
Guarantor, threatened against or affecting the Guarantor which in any such case could
reasonably be expected to have a material adverse effect on the ability of the Guarantor to
perform its payment obligations under the Guarantee;
(j) The Guarantor acknowledges and agrees that each of the Underwriters is acting
solely in the capacity of an arm’s length contractual counterparty to the Corporation and
the Guarantor with respect to the offering of Notes contemplated hereby (including in
connection with determining the terms of
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the offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Corporation, the Guarantor or any other person; additionally, no Underwriter is advising the
Corporation, the Guarantor or any other person as to any legal, tax, investment, accounting
or regulatory matters in any jurisdiction; the Guarantor shall consult with its own advisors
concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the Underwriters
shall have no responsibility or liability to the Corporation or the Guarantor with respect
thereto; any review by the Underwriters of the Corporation, the Guarantor, the transaction
contemplated hereby or other matters relating to such transactions will be performed solely
for the benefit of the Underwriters and shall not be on behalf of the Corporation or the
Guarantor;
(k) All obligations of the Guarantor under the Guarantee rank equally without
preference with all other outstanding obligations of the Guarantor and may be discharged out
of the fund formed under Part 5 of the Constitution Xxx 0000 of New South Wales constituting
all public moneys collected, received or held by a person for or on behalf of the State of
New South Wales without any further appropriation other than Section 22I of the PAFA Act;
and
(l) The Guarantor has the power to submit, and pursuant to this Agreement has submitted
legally, validly, effectively and irrevocably, to the jurisdiction of any State or Federal
court in The City of or State of New York; and the Guarantor has the power to designate,
appoint and empower, and pursuant to this Agreement has designated, appointed and empowered,
validly, effectively and irrevocably, an agent for service of process in any suit or
proceeding based on or arising under this Agreement, the Notes and the Guarantee in any
State or Federal court in The City of or State of New York, as provided herein and in such
documents.
C. Any certificate signed by any officer of the Corporation or any official of the Guarantor
and delivered to any Underwriter or counsel to the Underwriters in connection with an offering or
sale of Notes shall be deemed a representation and warranty by the Corporation or the Guarantor, as
the case may be, to such Underwriter as to the matters covered thereby.
SECTION 2. Covenants of the Underwriters
The Corporation and the Guarantor are advised by the Manager that the Underwriters, on the
basis of the representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, propose to make a public offering of their respective portions of the
Notes as soon after this Agreement is entered into as in the Manager’s judgment is advisable. The
terms of the public offering of the Notes and the Guarantee are set forth in the Time of Sale
Prospectus and the Prospectus.
Each Underwriter covenants and agrees with the Corporation that:
(a) In connection with the offering of the Notes on behalf of the Corporation, each
Underwriter confirms its awareness of, and agrees that it will
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solicit offers to purchase Notes and effect sales of Notes in the United States only
in compliance with the requirements of United States law applicable to it, including
without limitation, the Act, the U.S. Securities Exchange Act of 1934, as amended (the
“Exchange Act”), the Securities Act Regulations and the rules and regulations of the
Financial Industry Regulatory Authority (“FINRA”); additionally, each Underwriter
severally represents to and agrees that it has complied and will comply with the selling
restrictions contained in Schedule III hereto; and
(b) Each Underwriter, severally and not jointly, represents and warrants to, and
agrees with, the Corporation, the Guarantor and each other Underwriter that, unless it
obtains the consent of the Corporation and the other applicable Underwriters (if any)
prior to the use thereof, it has not made and will not make any offer relating to the
Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the
Act required to be filed with the Commission, provided the prior consent of the
Corporation and the other applicable Underwriters (if any) shall be deemed to have been
given in respect of any Issuer Free Writing Prospectus, including any Terms Sheet (as
defined in Section 3.A(h)(2)) agreed among the Corporation and the Manager on behalf of
the Underwriters, and to communications described in Sections 3.A(j) and 3.B(f).
SECTION 3. Covenants of the Corporation and the Guarantor
A. The Corporation covenants with each Underwriter as follows:
(a) The Corporation will deliver one manually signed copy of the Registration
Statement (as originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by reference in
the Prospectus) to the Manager and as many conformed copies of such documents to each
Underwriter as each Underwriter may reasonably request; the Corporation will furnish to
each Underwriter as many copies of the Time of Sale Prospectus and the Prospectus (as
amended or supplemented) as soon as possible and in such quantities as each Underwriter
shall reasonably request so long as the Corporation or such Underwriter is required to
deliver a Time of Sale Prospectus or Prospectus in connection with sales or solicitations
of offers to purchase the Notes;
(b) The Corporation will prepare the Prospectus in a form approved by the Manager
and file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; the Corporation will notify each Underwriter immediately,
and confirm the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Time of Sale Prospectus or the Prospectus or any amendment to
the Registration Statement, (iii) of the receipt of any comments from the Commission with
respect to the Registration Statement, the Time of Sale Prospectus or the Prospectus,
(iv) of any request by the Commission for any amendment to the
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Registration Statement or any amendment or supplement to the Time of Sale Prospectus
or the Prospectus or for additional information, (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose and (vi) of the receipt by the Corporation
of any notification with respect to the suspension of the qualification of the Notes for
sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; the Corporation 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;
(c) At any time when a Prospectus is required to be delivered in connection with the
sale of the Notes (including in the circumstances where such requirement can be satisfied
pursuant to Rule 172 under the Act) (the “Prospectus Delivery Period”), the Corporation
will comply with all requirements imposed upon the Corporation by the Act and the
Exchange Act, as now and hereinafter amended, and by the Securities Act Regulations, as
from time to time in force, so far as necessary to permit the continuance of the sale of
or a dealing in the Notes as contemplated by the provisions hereof and by the Time of
Sale Prospectus and the Prospectus; if at any time within the Prospectus Delivery Period,
in the case of the Prospectus, or prior to the Time of Delivery (as defined in Section
4(b)), in the case of the Time of Sale Prospectus, any event shall occur or condition
exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus or the Prospectus in order that the Time of Sale Prospectus or the Prospectus,
as the case may be, will not include an untrue statement of a material fact or omit to
state any 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 at any such time to amend or supplement the Registration
Statement, the Time of Sale Prospectus or the Prospectus in order to comply with the
requirements of the Act, the Exchange Act or the Securities Act Regulations, the
Corporation shall give immediate notice thereof, confirmed in writing, to each
Underwriter and the Corporation and the Guarantor will promptly prepare and file (at the
expense of the Corporation) with the Commission such amendment or supplement, as may be
necessary to correct such untrue statement or omission or to make the Registration
Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, comply with
such requirements;
(d) The Corporation will give each Underwriter notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to the Time of
Sale Prospectus or the Prospectus, whether pursuant to the Act, the Exchange Act or
otherwise, will furnish each Underwriter with copies of any such amendment or supplement
or other documents proposed to be filed in either case a reasonable time in advance of
filing, and will afford the Underwriters a reasonable opportunity to comment on any such
proposed amendment or supplement before it is filed or used;
(e) The Corporation will endeavor, in cooperation with the Manager, to qualify the
Notes (including the Guarantee of the Notes) for offering and sale and determine their
eligibility for investment under the applicable laws of such states
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and other jurisdictions of the United States as the Manager may designate and will
maintain such qualifications in effect for as long as may be required for the
distribution of the Notes by the Underwriters, and if such qualifications shall be
suspended, the Corporation will make every reasonable effort to obtain the lifting of
such suspension of qualification at the earliest possible moment; provided, however, that
the Corporation shall not be required to qualify the Notes in any state in which such
qualification requires the Corporation to file a consent to service of process or to
qualify to do business or where such qualification would, in the Corporation’s opinion,
cause the Corporation to be subject to taxation by such state; the Corporation will file
such statements and reports as may be required by the laws of each jurisdiction in which
the Notes have been qualified;
(f) At any time when a Prospectus is required to be delivered in connection with the
sale of the Notes (including in the circumstances where such requirement can be satisfied
pursuant to Rule 172 under the Act), the Corporation will immediately notify each
Underwriter by telephone or facsimile of any downgrading in the rating of the Notes or
any other debt securities of the Corporation, or any proposal to downgrade the rating of
the Notes or any other debt securities of the Corporation, by any “nationally recognized
statistical rating organization” (as defined for purposes of Rule 436(g) under the Act),
as soon as the Corporation learns of such downgrading or proposal to downgrade;
(g) To the extent that any tax on supply imposed by or through A New Tax System
(Goods and Services Tax) Xxx 0000 or any related tax imposition Act (“GST”) is payable in
respect of the remuneration payable to the Underwriters, the Corporation shall increase
the amount of fees payable to each Underwriter hereunder by an amount equal to the GST
payable by each Underwriter in respect of the supply provided that if, for whatever
reason, GST is no longer payable in respect of the supply by an Underwriter then, if the
Underwriter receives a refund of GST from the Australian Taxation Office, the Underwriter
shall refund to the Corporation the additional amount the Corporation paid on account of
GST. The Corporation will not have any obligation to pay any increased consideration to
the Underwriters for a supply as a result of this Section 3.A(g) until:
| (1) | the Corporation is required to pay an amount to the Underwriter for the supply provided; | ||
| (2) | the Underwriter has given the Corporation a correctly rendered tax invoice and/or adjustment note in relation to the supply; and | ||
| (3) | the Underwriter has done all things reasonably necessary upon request to assist the Corporation to enable it to claim and obtain any input tax credit available (where entitled) to the Corporation in respect of the supply; |
(h) (1) The Corporation shall not, subject to Section 3.A(h)(2) of this Agreement,
make any offer relating to any Notes that would constitute an Issuer Free Writing
Prospectus (including a Term Sheet, as defined below) without the prior consent of the
Underwriters; the Corporation shall comply with
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the requirements of Rule 433 under the Act with respect to any such Issuer Free
Writing Prospectus; any such Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and sale of the Notes or
until any earlier date that the Corporation notified or notifies the Manager as described
in this subsection, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement relating to the Notes, including the Prospectus deemed to be part thereof that
has not been superseded or modified; if at any time from the issuance of an Issuer Free
Writing Prospectus to the completion of the distribution of the Notes there occurred or
occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration Statement
relating to the Notes, including the Time of Sale Prospectus or Prospectus deemed to be
part thereof that has not been superseded or modified, the Corporation shall promptly
notify the Underwriters and shall promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict;
(2) The Corporation may prepare a term sheet (as applicable, each a “Term Sheet”),
containing a description of the Notes, which shall be in a form approved by the Manager
and substantially consistent with the terms agreed orally and confirmed in writing in
this Agreement or otherwise; any such Term Sheet shall constitute an Issuer Free Writing
Prospectus and the Corporation shall file such Term Sheet with the Commission pursuant to
Rule 433(d) under the Act within the time period prescribed by such Rule;
(i) So long as any of the Notes are outstanding, the Corporation will furnish to
each Underwriter as soon as practicable after the end of each fiscal year of the
Corporation, the annual report of the Corporation, including financial statements of the
Corporation as at the end of and for such year, all in reasonable detail and reported
upon by the Auditor General of the State of New South Wales, or any successor independent
auditor, and, as soon as practicable after the publication thereof, the annual budget and
statement of revenue and expenditures of the Guarantor; as soon as practicable after the
close of its fiscal year, the Corporation will make generally available to the holders of
the Notes an earnings statement covering a period of at least twelve months beginning
after the effective date of the Registration Statement which will satisfy the provisions
of Section 11(a) of the Act and the Securities Act Regulations; and
(j) The Corporation consents to the use (including the making of statements) by the
applicable Underwriters of (i) information with respect to the terms of the Notes and the
Guarantee in communications conveying information related to the offering of the Notes
and the Guarantee to investors prior to the preparation of a Term Sheet and/or Time of
Sale Prospectus by the Corporation, (ii) information consistent with information that
would be contained in a notice under Rule 134 under the Act and not inconsistent with
information specifically set forth in the Time of Sale Prospectus, (iii) information that
describes the final terms of the Notes, the Guarantee or their offering and that is
consistent with the Term Sheet approved pursuant to Section 3.A(h)(2) of this Agreement
and the
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Time of Sale Prospectus, each of which have, or will be, filed by the Corporation
with the Commission under the Securities Act Regulations, and (iv) information consistent
with information that is in the public domain and is not inconsistent with information
specifically set forth in the Time of Sale Prospectus, which in the case of (i) through
(iv) of this subsection (except to the extent set forth therein) would not be required to
be filed by the Underwriters, the Corporation or the Guarantor with the Commission under
the Securities Act Regulations.
B. The Guarantor covenants with each Underwriter as follows:
(a) At any time when a Prospectus is required to be delivered in connection with the
sale of the Notes (including in the circumstances where such requirement can be satisfied
pursuant to Rule 172 under the Act), the Guarantor will comply with all of the
requirements imposed upon the Guarantor by the Act and the Exchange Act, as now and
hereinafter amended, and by the Securities Act Regulations, as from time to time in
force, so far as necessary to permit the continuance of the sale of or a dealing in the
Notes as contemplated by the provisions hereof and by the Time of Sale Prospectus and the
Prospectus; if during such period, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Time of Sale Prospectus or the
Prospectus in order that the Time of Sale Prospectus or the Prospectus, as the case may
be, will not include an untrue statement of a material fact or omit to state any 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 at any such time to amend or supplement the Registration Statement, the Time of
Sale Prospectus or the Prospectus in order to comply with the requirements of the Act,
the Exchange Act or the Securities Act Regulations, the Corporation or the Guarantor
shall give immediate notice, confirmed in writing, to each Underwriter to cease the
solicitation of offers to purchase the Notes in the Underwriter’s capacity as Underwriter
and to cease sales of any Notes the Underwriters may then own as principal, and then if,
at the time of any notification to suspend solicitations, any Underwriter shall own any
of the Notes with the intention of reselling them, or the Corporation has accepted an
offer to purchase Notes but the related settlement has not occurred, the Guarantor will
promptly prepare, or assist the Corporation in preparing (at the expense of the
Corporation), and file with the Commission such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the Registration
Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, comply with
such requirements;
(b) With respect to each sale of Notes and as soon as practicable after the close of
its fiscal year, the Guarantor will make generally available to the holders of the Notes
a statement of its revenues and expenses, covering a period of at least twelve months
beginning after the effective date of the Registration Statement, which will satisfy the
provisions of Section 11(a) of the Act and the Securities Act Regulations;
(c) The Guarantor will give each Underwriter notice, or cause the Corporation to
give each Underwriter notice, of its intention to file any
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amendment to the Registration Statement or any amendment or supplement to the Time
of Sale Prospectus or the Prospectus, whether pursuant to the Act, the Exchange Act or
otherwise, will furnish each Underwriter, or will cause the Corporation to furnish each
Underwriter, with copies of any such amendment or supplement or other documents proposed
to be filed in either case a reasonable time in advance of filing, and will afford the
Underwriters a reasonable opportunity to comment on any such proposed amendment or
supplement before it is filed or used;
(d) The Guarantor will notify each Underwriter immediately, and confirm the notice
in writing, or will cause the Corporation to notify each Underwriter immediately and
confirm such notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Time of Sale Prospectus or the Prospectus or any amendment to
the Registration Statement, (iii) of the receipt of any comments from the Commission with
respect to the Registration Statement, the Time of Sale Prospectus or the Prospectus,
(iv) of any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Time of Sale Prospectus or the Prospectus or for
additional information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose and (vi) of the receipt by the Guarantor of any notification
with respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purposes; the
Guarantor, in cooperation with the Corporation, 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;
(e) The Guarantor will assist, in cooperation with the Manager and the Corporation,
in qualifying the Notes (including the Guarantee of the Notes) for offering and sale and
determining their eligibility for investment under the applicable laws of such states and
other jurisdictions of the United States as the Manager may designate and will assist in
maintaining such qualifications in effect for as long as may be required for the
distribution of the Notes by the Underwriters; subject to the limitations set forth in
this Section 3.B(e), the Guarantor will file such statements and reports as may be
required by the laws of each jurisdiction in which the Notes have been qualified, and if
such qualifications shall be suspended, the Guarantor will make every reasonable effort
to obtain the lifting of such suspension of qualification at the earliest possible
moment; provided, however, that the Guarantor shall not be obligated to file a consent to
service of process in any jurisdiction; and
(f) The Guarantor consents to the use (including the making of statements) by the
applicable Underwriters of (i) information with respect to the terms of the Notes and the
Guarantee in communications conveying information related to the offering of the Notes
and the Guarantee to investors prior to the preparation of a Term Sheet and/or Time of
Sale Prospectus by the Corporation, (ii) information consistent with information that
would be contained in a notice
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under Rule 134 under the Act and not inconsistent with information specifically set
forth in the Time of Sale Prospectus, (iii) information that describes the final terms of
the Notes and the Guarantee or their offering and that is consistent with the Term Sheet
approved by the Corporation pursuant to Section 3.A(h)(2) of this Agreement and the Time
of Sale Prospectus, each of which have, or will be, filed by the Corporation with the
Commission under the Securities Act Regulations, and (iv) information consistent with
information that is in the public domain and is not inconsistent with information
specifically set forth in the Time of Sale Prospectus, which in the case of (i) through
(iv) of this subsection (except to the extent set forth therein) would not be required to
be filed by the Underwriters, the Corporation or the Guarantor with the Commission under
the Securities Act Regulations.
SECTION 4. Delivery and Payment
(a) The Notes to be purchased by the Underwriters hereunder shall be delivered by or on behalf
of the Corporation to the Manager, through the facilities of the Depository Trust Company (“DTC”),
for the account of the Underwriters, against payment by or on behalf of the Underwriters at the
purchase price specified in the introductory paragraph of this Agreement, plus accrued interest, if
any, from [•], 2009 to the date of payment and delivery of the principal amount of the Notes, by
wire transfer of Federal (same-day) funds to the accounts specified by the Corporation at least
forty-eight hours in advance.
(b) The time and date of such delivery and payment shall be [9:30 a.m.], New York time, on
[•], 2009 or such other time and date as the Manager and the Corporation may agree upon in writing;
such time and date for delivery of the Notes is herein called the “Time of Delivery”.
(c) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 6(b) hereof, including the cross receipt for the Notes and any
additional documents requested by the Underwriters pursuant to Section 6(d) hereof, will be
delivered at the offices of Xxxxxxxx & Xxxxxxxx, Level 27, The Chifley Tower, 0 Xxxxxxx Xxxxxx,
Xxxxxx, XXX 0000, Xxxxxxxxx (the “Closing Location”), and the Notes will be delivered to the
Custodian for DTC, all at such Time of Delivery. A meeting will be held at the Closing Location at
[•] [a.m.], Sydney time, on the date of the Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be available for review by
the parties hereto.
SECTION 5. Payment of Expenses
The Corporation, whether or not the transactions contemplated hereunder are consummated or
this Agreement is terminated, will pay all reasonable expenses incidental to the performance of the
obligations of the Corporation and the Guarantor hereunder, will pay the expenses (including fees
and disbursements of counsel) incurred by the Underwriters in connection with the matters referred
to in Sections 3.A(e) and 3.B(e) hereof and the preparation of memoranda relating thereto, and will
pay any fees charged by investment rating agencies for rating the Notes, the cost of furnishing to
the Underwriters copies of the Registration Statement, the Prospectus, any Preliminary
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Prospectus, any Issuer Free Writing Prospectus and each amendment and supplement thereto, in
such numbers as the Underwriters may reasonably request, the reasonable fees and disbursements of
its and the Underwriters’ U.S. legal counsel, the costs and charges of the Fiscal Agent relating to
its duties under the Fiscal Agency Agreement and the Notes, FINRA filing fees and expenses,
out-of-pocket expenses of the Underwriters in connection with delivery of the Time of Sale
Prospectus and the Prospectus and the cost of preparing, issuing and delivering the Notes. The
Corporation shall not in any event be liable to the Underwriters for loss of anticipated profits
from the transactions covered by this Agreement.
SECTION 6. Conditions of Obligations
The obligations of each Underwriter hereunder to purchase the Notes to be delivered at the
Time of Delivery will be subject to the accuracy of the representations and warranties on the part
of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of
Delivery, to the accuracy of the statements of any duly authorized officer or official of the
Corporation and the Guarantor made in any certificate furnished pursuant to the provisions of
Section 6(b)(1), to the performance and observance by the Corporation and the Guarantor of all
their respective covenants and other obligations hereunder and to the following further conditions:
(a) (1) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued under the Act or proceedings
therefor initiated or threatened by the Commission; (2) no Underwriter shall have
been advised by the Corporation that the Registration Statement, the Time of Sale
Prospectus or the Prospectus, or any amendment or supplement thereto, at the time
it was required to be delivered to a purchaser of the Notes, contained an untrue
statement of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at such
time, not misleading; and (3) subsequent to the respective dates as of which
information is given in the Registration Statement, the Time of Sale Prospectus and
the Prospectus, there shall not have been any material adverse change in the
financial position, results of operation, business affairs or business prospects of
the Corporation or the financial, political or economic conditions or the financial
or economic prospects of the Guarantor except as set forth in or contemplated by
the Time of Sale Prospectus or the Prospectus;
(b) At the Time of Delivery the Manager shall have received:
| (1) | A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied |
-17-
| with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; | |||
| (2) | An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; | ||
| (3) | An opinion and disclosure
letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special
U.S. counsel to the Corporation and the Guarantor, or such
other counsel satisfactory to the Manager receiving such
opinion and letter, with respect to the validity under the laws
of New York and the United States of America of the Notes and
the Guarantee of the Notes by the Guarantor, the Registration
Statement, the Prospectus, the Time of Sale Prospectus (if
applicable) and other related matters as they may require, and
the Corporation and the Guarantor shall have furnished to such
counsel such documents as they request for the purpose of
enabling them to pass upon such matters; in giving their
opinion, Xxxxxxxx & |
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| Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; | |||
| (4) | An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and | ||
| (5) | From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. |
(c) There shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange or the Australian Stock Exchange; (ii) a general moratorium on commercial
banking activities (A) in New York declared by either U.S. federal or New York
State regulatory authorities or (B) in Australia declared by the Australian
regulatory authorities or a material disruption in commercial banking or securities
settlement or clearance systems in the United States or Australia; (iii) any
outbreak or escalation of hostilities, other insurrections or armed conflict in
which the United States of America or the Commonwealth of Australia is involved or
any declaration of a national emergency or war by either of such countries, or any
other calamity or crisis or materially adverse change in general economic,
political or financial conditions having an effect on the U.S. or Australian
financial markets; (iv) any downgrading in the rating of any debt securities of the
Corporation or the Guarantor by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any
amendment to the laws, regulations or published tax rulings of the United States or
Australia which could reasonably be expected to have a material adverse effect on
the holders of the Notes, which in the case of any of the events described in
clauses (i) through (iv) above, individually or in the aggregate, in the sole
judgment of the Manager, makes it impracticable or inadvisable to proceed with the
consummation of the purchase of Notes by the Underwriters for sale to others on the
terms and in the manner contemplated in the Time of Sale Prospectus and the
Prospectus, each as then amended or supplemented.
(d) At the Time of Delivery, the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require in order
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to evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Corporation and the Guarantor in connection with the
issuance and sale of the Notes as herein contemplated shall be satisfactory in form
and substance to the Underwriters.
If any condition specified in this Section 6 shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the Manager by notice to the
Corporation at any time at or prior to the Time of Delivery and such termination shall be without
liability of any party to any other party, except that the provisions of Section 5 hereof, the
indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of
Section 10, 13 and 16 hereof shall remain in effect.
SECTION 7. Indemnification
(a) Each of the Corporation and the Guarantor agrees, jointly and severally, to
indemnify and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls each Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act as follows:
| (1) | against any and all loss, liability, claim, damage and expense arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), the Time of Sale Prospectus (or any part thereof), any Issuer Free Writing Prospectus or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission was made in reliance upon and in conformity with written information relating to any Underwriter furnished to the Corporation or the Guarantor by such Underwriter expressly for use in the Registration Statement (or any amendment thereto), the Prospectus (or any amendment or supplement thereto), the Time of Sale Prospectus or any Issuer Free Writing Prospectus; | ||
| (2) | against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever |
-20-
| based upon any such untrue statement or omission, or any such alleged untrue statement or omission (except as made in reliance upon and in conformity with information relating to any Underwriter furnished by such Underwriter as aforesaid) if such settlement is effected with the written consent of the Corporation and the Guarantor; and | |||
| (3) | against any and all expense whatsoever (including, subject to Section 7(d) hereof, the reasonable fees and disbursements of counsel chosen by the Underwriters) reasonably incurred in investigating, preparing or defending against any litigation, or 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 (except as made in reliance upon and in conformity with information relating to any Underwriter furnished by such Underwriter as aforesaid), to the extent that any such expense is not paid under (1) or (2) above; |
(b) Each Underwriter on a several and not joint basis agrees to indemnify and hold
harmless each of the Corporation and the Guarantor, each of the Corporation’s officials,
officers and representatives who signed the Registration Statement, and each person, if
any, who controls the Corporation within the meaning of Section 15 of the Act or Section
20 of the Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only with
respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or the Time of Sale Prospectus (or any part thereof) in
reliance upon and in conformity with written information relating to such Underwriter
furnished to the Corporation or the Guarantor by such Underwriter expressly for use in
the Registration Statement (or any amendment thereto), the Prospectus (or any amendment
or supplement thereto) or the Time of Sale Prospectus, it being understood and agreed
that the only such information consists of the following: [insert references to
appropriate paragraphs] [and the following information in the Issuer Free Writing
Prospectus dated [•], 2009: [insert description of information provided by Underwriters].
(c) Each indemnified party shall give notice as promptly as reasonably practicable
to each indemnifying party of any action commenced or asserted 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 which it may have under
Section 7(a) or (b) above, except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure and provided,
further, that the failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under Section 7(a) or
(b) above.
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(d) In case any such action is brought or asserted against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may wish, to
assume the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such indemnified
party as to its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the contrary; (ii) the
indemnifying party has failed within a reasonable time to retain counsel reasonably
satisfactory to the indemnified party; (iii) the indemnifying party shall have reasonably
concluded that there may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the indemnifying party and
the indemnified party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interest between them. In no event
shall the indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
(e) The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify each
indemnified party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested that an indemnifying party reimburse the indemnified party for fees
and expenses of counsel as contemplated by this paragraph, the indemnifying party shall
be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by the indemnifying
party of such request and (ii) the indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnification could have been
sought hereunder by such indemnified party, unless such settlement (x) includes an
unconditional release of such indemnified party, in form and substance reasonably
satisfactory to such indemnified party, from all liability or claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any admission
of fault, culpability or a failure to act by or on behalf of any indemnified party.
-22-
SECTION 8. Contribution
If the indemnification provided for in Section 7 is unavailable or insufficient to hold
harmless an indemnified party under Section 7(a) or (b) (otherwise than pursuant to the express
terms thereof), then the indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities referred to in Section
7(a) or (b) (i) in such proportion as is appropriate to reflect the relative benefits received by
the Corporation and the Guarantor, on the one hand, and any Underwriter, on the other, from the
offering pursuant to this Agreement of the Notes or (ii) if the allocation provided by clause (i)
above 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 the
Corporation and the Guarantor, on the one hand, and any Underwriter, on the other, in connection
with the statements or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits received by the
Corporation and the Guarantor, on the one hand, and any Underwriter, on the other, shall be deemed
to be in the same proportions as the total net proceeds from the offering pursuant to this
Agreement of the Notes (before deducting expenses) received by the Corporation bear to the total
discounts and commissions received by such Underwriter from the offering of such Notes pursuant to
this Agreement. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Corporation and the
Guarantor or such Underwriter and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statements or omission. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities referred
to in the first sentence of this Section 8 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
action or claim which is the subject of this Section 8. Notwithstanding the provisions of Section
7 and this Section 8, no Underwriter shall be required to contribute any amount in excess of the
amount of the total underwriting discounts and commissions received by it pursuant to this
Agreement or upon resale of Notes purchased by it from the Corporation exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of each Underwriter in this Section 8 to contribute are several, in the same proportion
to their respective purchase obligations hereunder and not joint.
SECTION 9. Status of the Underwriters; Default by an Underwriter
(a) Nothing herein contained shall constitute the Underwriters an association, joint venture
or partnership, with the Corporation or the Guarantor or with each other.
(b) If any Underwriter shall default in its obligation to purchase the Notes which it has
agreed to purchase hereunder at the Time of Delivery, the Manager may in their discretion arrange
for an Underwriter or another party or other parties to purchase
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such Notes on the terms contained herein. If within thirty-six hours after such default by
any Underwriter the Manager do not arrange for the purchase of such Notes, then the Corporation
shall be entitled to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Manager to purchase such Notes on such terms. In the event that,
within the respective prescribed periods, the Manager notify the Corporation that they have so
arranged for the purchase of such Notes, or the Corporation notifies the Manager that they have so
arranged for the purchase of such Notes, the Manager or the Corporation shall have the right to
postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Corporation agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the Manager opinion may
thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any
person substituted under this Section 9 with like effect as if such person had originally been a
party to this Agreement with respect to such Notes.
(c) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Underwriter or Underwriters by the Manager and the Corporation as provided in subsection (b) above,
the aggregate amount of such Notes which remains unpurchased does not exceed one-eleventh of the
aggregate amount of all the Notes to be purchased at the Time of Delivery, then the Corporation
shall have the right to require each non-defaulting Underwriter to purchase the amount of Notes
which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on the amount of
Notes which such Underwriter agreed to purchase hereunder) of the Notes of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(d) If, after giving effect to any arrangements for the purchase of the Notes of a defaulting
Underwriter or Underwriters by the Manager and the Corporation as provided in subsection (b) above,
the aggregate amount of such Notes which remains unpurchased exceeds one-eleventh of the aggregate
amount of all of the Notes to be purchased at the Time of Delivery, or if the Corporation shall not
exercise the right described in subsection (c) above to require non-defaulting Underwriters to
purchase the Notes of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or the Corporation or
the Guarantor, except for the expenses to be borne by the Corporation and the Guarantor and the
Underwriters as provided in Section 5 hereof and the indemnity and contribution agreements in
Sections 7 and 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
SECTION 10. Representations, Warranties and Agreements to Survive Delivery
All representations, warranties and agreements (including, without limitation, indemnities and
rights to contribution) contained in this Agreement or contained in certificates of officers of the
Corporation or the Guarantor submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any termination of this Agreement or any investigation made by or on
behalf of any Underwriter or any
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controlling person, or by or on behalf of the Corporation or the Guarantor, and shall survive
each delivery of and payment for any of the Notes.
SECTION 11. Termination
In the event of any termination of this Agreement pursuant to Section 9 hereof, neither the
Company nor the Guarantor will have any liability to any Underwriter except that the provisions of
Section 5 hereof, the indemnity and contribution agreements set forth in Sections 7 and 8 hereof,
and the provisions of Sections 10, 13 and 16 hereof shall remain in effect.
SECTION 12. Notices
All notices and other communications hereunder shall be delivered in person, sent by
registered airmail post or by telex, email or facsimile transmission or communicated by telephone
(subject in the case of communication by telephone to confirmation within 24 hours by letter
delivered by one of the foregoing means) and shall be effective upon receipt, provided that an
e-mail shall be deemed received when a return receipt is received; and provided further always that
the failure of any letter, facsimile, email or telex confirmation to be delivered to or received by
the party to whom it is addressed shall not invalidate the telephone communication in respect
whereof it is sent. Notices to the Underwriters shall be directed in the case of X.X. Xxxxxx
Securities Inc. to: 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(facsimile no. x0 000 000 0000), attention: Investment
Grade Syndicate Desk, with a copy to X.X. Xxxxxx Australia
Limited, Xxxxx 00 Xxxxxxxxx Xxxxx, 000 Xxxxxx Xxxxxx,
Xxxxxx XXX 0000 Xxxxxxxxx (facsimile
no. x00 0 0000 0000): Attention: Debt Capital Markets;
email: xxxxxx.x.xxxxxx@xxxxxxxx.xxx; in the case of any other Underwriter, to such Underwriter in care of X.X. Xxxxxx
Securities Inc. at the foregoing address; notices to the Corporation shall be directed to: New
South Wales Treasury Corporation, Xxxxx 00, Xxxxxxxx Xxxxxxx Xxxxx, 0 Xxxxxx Xxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx, 0000, Xxxxxxxxx (facsimile no. x00 0 0000 0000; email xxxxxxx.xxxxxx@xxxxx.xxx.xxx.xx), attention: Chief
Executive); and notices to the Guarantor shall be directed to: New South Wales Treasury, Level 26,
Governor Macquarie Tower, 0 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, attention: Secretary
(facsimile no. x00 0 0000 0000; email xxxxxxxx_xxx@xxxxxxxx.xxx.xxx.xx).
SECTION 13. Parties
This Agreement shall inure to the benefit of and be binding upon the parties hereto and the
Underwriters’ respective successors and controlling persons referred to in Section 7 hereof.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in Sections 7 and 8
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 or therein contained; provided, however, that
it is hereby agreed and acknowledged that Sections 14(b) and 15(b) are for the benefit of the
holders from time to time of the Notes, as third-party beneficiaries. Subject to the proviso in
the immediately preceding sentence, this Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties hereto 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. Subject to the
proviso in the second immediately preceding sentence, no purchaser of Notes shall be deemed to be a
-25-
successor by reason merely of such purchase.
SECTION 14. Governing Law; Waiver of Immunity
(a) This Agreement shall be governed by the laws of the State of New York without reference to
the principles of conflicts of laws thereof (other than Section 5-1401 of the New York General
Obligations Law), except that all matters governing authorizations and executions by the
Corporation and the Guarantor shall be governed by the laws of the State of New South Wales.
(b) To the extent that the Corporation or the Guarantor may in any jurisdiction claim for
itself or its assets or revenues immunity from suit, execution, attachment (whether in aid of
execution, before judgment or otherwise) or other legal process and to the extent that such
immunity (whether or not claimed) may be attributed in any such jurisdiction to the Corporation or
the Guarantor, or their respective assets or revenues, the Corporation and the Guarantor each agree
not to claim and irrevocably waives such immunity to the fullest extent permitted by the laws of
such jurisdiction. The foregoing waiver of immunity is subject to Section 7(2) of the Crown
Proceedings Xxx 0000 of New South Wales which prevents executive, attachment or similar process
being issued out of any Australian court against the Corporation (to the extent the Corporation is,
for the purposes of such Act, taken to be the Crown (as defined therein)) or the Guarantor or
against any property of either of them. However, under Section 7(1) of that Act, the Treasurer of
New South Wales shall pay (out of any money legally available) all money payable by the Corporation
(to the extent the Corporation is, for the purposes of such Act, taken to be the Crown (as defined
therein)) and the Guarantor under any judgment of any competent court, including any interest,
except to the extent that the money is paid by some person other than the Treasurer. THE GUARANTOR
HEREBY AGREES AND ACKNOWLEDGES THAT, IN ADDITION TO THE UNDERWRITER, THIS SECTION 14(b) IS ALSO FOR
THE BENEFIT OF THE HOLDERS FROM TIME TO TIME OF THE NOTES, AS THIRD-PARTY BENEFICIARIES.
SECTION 15. Consent to Service; Jurisdiction
(a) Each
of the Corporation and the Guarantor hereby appoints CT Corporation
System located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (the
“Authorized Agent”) upon which process may be served in any action by any Underwriter, or by any
person controlling any Underwriter, arising out of or based upon this Agreement which may be
instituted in any State or Federal court in the Borough of Manhattan, The City of New York, and
expressly accepts the jurisdiction of any such court in respect of any such action. Such
appointment shall be irrevocable as long as any of the Notes remain outstanding except that if, for
any reason, such agent ceases to act in such capacity, each of the Corporation and the Guarantor
will appoint another person in the Borough of Manhattan, The City of New York, selected in its
discretion, as such Authorized Agent. Notwithstanding the foregoing, each of the Corporation and
the Guarantor reserve the right to appoint another person located or with an office in the Borough
of Manhattan, The City of New York, selected in its discretion without the consent of the
Authorized Agent, as a successor Authorized Agent, and upon acceptance of
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such appointment by such a successor the appointment of the prior Authorized Agent shall
terminate. Each of the Corporation and the Guarantor will take any and all action, including the
filing of any and all documents and instruments, that may be necessary to continue such appointment
or appointments in full force and effect as aforesaid. Service of process upon the Authorized
Agent, together with written notice of such service mailed or delivered to the Corporation or the
Guarantor, as the case may be, at the addresses set forth in Section 12 hereof shall be deemed in
every respect effective service of process upon the Corporation or the Guarantor, as the case may
be. Notwithstanding the foregoing, any action by any Underwriter, or by any person controlling any
Underwriter, arising out of or based upon this Agreement may be instituted in any competent court
in the State of New South Wales or any court in the Commonwealth of Australia competent to hear
appeals therefrom. Each of the Corporation and the Guarantor hereby waives irrevocably any
immunity from jurisdiction (but not execution or attachment or process in the nature thereof) to
which it might otherwise be entitled in any action arising out of or based upon this Agreement
which may be instituted as provided in this Section 15 in any State or Federal court in the Borough
of Manhattan, The City of New York or in any competent court in the State of New South Wales or any
court in the Commonwealth of Australia competent to hear appeals therefrom.
(b) Furthermore, the Guarantor hereby appoints the Authorized Agent as its authorized agent
upon which process may be served in any action by any holder of Notes arising out of or based upon
the Notes or the Guarantee which may be instituted in any State or Federal court in The City or
State of New York, and expressly accepts the jurisdiction of any such court in respect of any such
action. Such appointment shall be irrevocable as long as any of the Notes remain outstanding
except that if, for any reason, such agent ceases to act in such capacity, the Guarantor will
appoint another person in New York, selected in its discretion, as such Authorized Agent.
Notwithstanding the foregoing, the Guarantor reserves the right to appoint another person located
or with an office in New York, selected in its discretion without the consent of the Authorized
Agent, as a successor Authorized Agent, and upon acceptance of such appointment by such a successor
the appointment of the prior Authorized Agent shall terminate. The Guarantor will take any and all
action, including the filing of any and all documents and instruments, that may be necessary to
continue such appointment or appointments in full force and effect as aforesaid. Service of
process upon the Authorized Agent, together with written notice of such service mailed or delivered
to the Guarantor at the addresses set forth in Section 12 hereof shall be deemed in every respect
effective service of process upon the Guarantor. Notwithstanding the foregoing, any action by any
holder of Notes arising out of or based upon the Notes or the Guarantee may be instituted in any
competent court in the State of New South Wales or any court in the Commonwealth of Australia
competent to hear appeals therefrom. The Guarantor hereby waives irrevocably any immunity from
jurisdiction (but not execution or attachment or process in the nature thereof) to which it might
otherwise be entitled in any action arising out of or based upon the Notes or the Guarantee which
may be instituted as provided in this Section 15 in any State or Federal court in The City or the
State of New York or in any competent court in the State of New South Wales or any court in the
Commonwealth of Australia competent to hear appeals therefrom. THE GUARANTOR HEREBY AGREES AND
ACKNOWLEDGES THAT THIS SECTION 15(b) IS FOR THE BENEFIT OF THE HOLDERS FROM TIME TO TIME OF THE
NOTES, AS THIRD-PARTY BENEFICIARIES.
-27-
SECTION 16. Judgment Currency
If for the purposes of obtaining judgment in any court it is necessary to convert a sum due
hereunder into any currency other than United States dollars, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Manager could purchase United States dollars
with such other currency in New York City on the business day preceding that on which final
judgment is given. The obligation of the Corporation or the Guarantor in respect of any sum due
from it to any Underwriter hereunder shall, notwithstanding any judgment in a currency other than
United States dollars, not be discharged until the first business day, following receipt by such
Underwriter of any sum adjudged to be so due in such other currency, on which (and only to the
extent that) such Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so purchased are less than
the sum originally due to such Underwriter hereunder, the Corporation and the Guarantor each agree,
as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss. If the United States dollars so purchased or which could have been so purchased
had such Underwriter purchased United States dollars with such other currency are greater than the
sum originally due to such Underwriter hereunder, such Underwriter agrees to pay to the Corporation
or the Guarantor, as applicable, an amount equal to the excess of the United States dollars so
purchased or which could have been so purchased over the sum originally due to such Underwriter
hereunder.
SECTION 17. Stabilization
Any over-allotment or stabilization transaction by the Underwriters in connection with the
distribution of the Notes shall be effected by them (outside Australia and not on a market operated
in Australia) to the extent permitted by applicable laws and directives, on their own behalf and
not as agents of the Corporation or the Guarantor, and any gain or loss arising therefrom shall be
for their own account. The Underwriters also acknowledge that neither the Corporation nor the
Guarantor has authorized the carrying out by the Underwriters of stabilization transactions other
than in conformity with applicable law.
SECTION 18. Foreign Taxes
Any amounts payable hereunder to an Underwriter shall be made free and clear of and without
withholding or deduction for or on account of any and all present and future income, stamp or other
taxes, levies, imposts, duties, charges, fees deductions or withholdings of whatsoever nature now
or hereafter imposed, levied, collected, deducted or withheld or assessed by or on behalf of
Australia or any political subdivision thereof or by any jurisdiction, other than the United States
of America or any taxing authority or political subdivision thereof, in which the Corporation has a
branch, an office or agency from which payment is made, excluding (i) any such tax which could not
have been imposed if such Underwriter had no present or former connection with any such
jurisdiction other than the performance of its obligations hereunder and (ii) any income or
franchise tax imposed on the overall net income of such Underwriter imposed by the
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United States of America or the State of New York (all such non-excluded taxes, the “Foreign
Taxes”) or by the jurisdiction of its incorporation. If, by operation of law or otherwise, that
portion of amounts payable hereunder represented by Foreign Taxes withheld or deducted cannot be
paid or remitted, then the Corporation agrees to pay an additional amount so that after making any
deduction for such Foreign Taxes (including all Foreign Taxes payable on such additional amounts)
the Underwriter is entitled to receive an amount equal to the amount that would have been payable
if no Foreign Taxes had been so withheld or deducted.
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If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us a counterpart hereof, whereupon this instrument along with all counterparts will
become a binding agreement between you and us in accordance with its terms.
| Very truly yours, NEW SOUTH WALES TREASURY CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE CROWN IN RIGHT OF NEW SOUTH WALES |
||||
| By: | ||||
| Name: | ||||
| Title | ||||
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| CONFIRMED AND ACCEPTED, as of | ||||
| the date first above written: | ||||
| X.X. XXXXXX SECURITIES INC. | ||||
By: |
||||
| Date: | ||||
-31-
SCHEDULE I
| Principal Amount | ||
| Name of Underwriter | of Notes to be Purchased | |
X.X. Xxxxxx Securities Inc. |
||
Daiwa Securities America Inc. |
||
Total |
I-1
SCHEDULE II
ISSUER FREE WRITING PROSPECTUS
Part A
[Electronic road show related to the offering contemplated herein recorded at
[location] on [•], 2009 and made available at xxxx://xxx.xxxxxxxxxxx.xxx. ]
[location] on [•], 2009 and made available at xxxx://xxx.xxxxxxxxxxx.xxx. ]
Part B
Term Sheet, dated [•], 2009.
II-1
SCHEDULE III
SELLING RESTRICTIONS
Each Underwriter will (to the best of its knowledge and belief) comply with all applicable
laws and regulations in force in any jurisdiction in which it purchases, offers or sells the Notes
or possesses or distributes the Time of Sale Prospectus and the Prospectus and will obtain any
consent, approval or permission required by it for the purchase, offer or sale by it of the Notes
under the laws and regulations in force in any jurisdiction to which it is subject or in which it
makes such purchases, offers or sales and neither the Corporation nor any other Underwriter shall
have responsibility therefor.
No prospectus or other disclosure document (as defined in the Corporations Xxx 0000 of
Australia) (“Corporations Act”) in relation to the Notes has been or will be lodged with the
Australian Securities and Investment Commission (“ASIC”). Each of the Underwriters, severally and
not jointly, represents and warrants to, and agrees with, the Corporation that, in connection with
its solicitation of offers to purchase Notes or its initial distribution of any Notes purchased by
it as principal:
(i) It will not offer or sell Notes, directly or indirectly, in the Commonwealth of Australia,
its territories and possessions (“Australia”) and that:
(A) it has not offered for issue or sale, invited applications for the issue or
purchase of, any Notes in Australia (including an offer or invitation which is received by
a person in Australia); it will not offer for issue or sale, invite applications for the
issue of, or to purchase, any Notes in Australia (including an offer or invitation which is
received by a person in Australia); and it has not distributed or published, and will not
distribute or publish, any preliminary or final prospectus, advertisements or other
offering material relating to the Notes in Australia, unless:
| (1) | (I) the aggregate amount payable on acceptance of the offer by each offeree or invitee for the Notes is a minimum amount (disregarding amounts, if any, lent by the Corporation or other person offering the Notes or an associate (as defined in Division 2 of Part 1.2 of the Corporations Act of either of them) of A$500,000 (or its equivalent in an alternate currency); or (II) the offer or invitation is otherwise an offer or invitation for which no disclosure is required to be made under Part 6D.2 of the Corporations Act; and; | ||
| (2) | such action does not require any document to be lodged with the Australian Securities and Investment Commission. |
(ii) (A) it will offer such Notes for sale within 30 days of their issue date:
| (1) | to at least 10 persons each of whom at the time of the offer (I) it believes on reasonable grounds was carrying on a business of providing finance, or investing or dealing in securities, in the course of operating in financial markets |
A-1
| (including, without limitation, any person it reasonably believes to be a “qualified institutional buyer” within the meaning of Rule 144A) and (II) was not known, or suspected, by its employees directly involved in the sale to be an “associate” (as defined in section 128F(9) of the Income Tax Assessment Xxx 0000 of Australia (the “Tax Act”)) of any other person covered by this subsection (ii)(A)(1); | |||
| (2) | to at least 100 persons who it would be reasonable to regard as either having acquired debentures (such as the Notes) in the past or is likely to be interested in acquiring debentures (such as the Notes); or | ||
| (3) | as a result of negotiations being initiated publicly in electronic form (such as Reuters or the Bloomberg system or any other electronic financial information system which is used by financial markets for dealing in debentures (such as the Notes), or in another form, which is used by financial markets for dealing in debentures (such as the Notes). |
(B) in connection with the primary distribution of the Notes, it will not sell any of
the Notes (or any interest in any of the Notes) to any person, if, at the time of such
sale, its employees directly involved in the sale knew or suspected that, as a result of
the sale, such Notes would be acquired (directly or indirectly) by an Offshore Associate
(other than in the capacity of dealer, manager or underwriter in relation to the placement
of the Notes or in the capacity of a clearing house, custodian, funds manager or
responsible entity of an Australian registered managed investment scheme). “Offshore
Associate” means an “associate” (as defined in section 128F(9) of the Tax Act) of the
Corporation that is either (a) a resident of Australia that acquires the Notes in carrying
on business at or through a permanent establishment outside Australia or (b) a non-resident
of Australia that does not acquire the Notes in carrying on business at or through a
permanent establishment in Australia. For the avoidance of doubt, if an Underwriter in
respect of an offering of Notes does not know or suspect that a person is an Offshore
Associate of the Corporation, nothing in this paragraph (ii)(B) obliges that Underwriter to
make positive enquiries of that person to confirm that person is not an Offshore Associate.
(C) it will provide to the Corporation so far as it is reasonably able to do so,
within 30 days after the receipt of the Corporation’s request, such information and
documentation which is reasonably requested by the Corporation in relation to its marketing
efforts under subsection (ii)(A) above to assist the Corporation demonstrate (to the extent
necessary) that the “public offer” test under section 128F of the Tax Act has been
satisfied, provided, however, that no Underwriter shall be obliged to disclose (I) any
information which reveals the identity of any person to whom the offer or invitation was
made or any purchaser of any Note or any information from which such identity would be
capable of being ascertained, (II) any information which is customarily regarded by it as
confidential or the disclosure of which would be contrary or prohibited by any relevant
law,
A-2
regulation, directive or by any agreement or undertaking or (III) any information or
documentation after a period of 6 years from the issue date of the Notes.
A-3
ANNEX A
FORM OF AUDITOR GENERAL COMFORT LETTER
[•], 2009
[Underwriters
c/o the Manager]
c/o the Manager]
Dear Sirs:
I refer to the Prospectus dated [•] (the “Prospectus”), relating to the issue primarily in the
United States of up to US$[•] of [•]% Guaranteed Notes due 20[•] (the “Notes”) by New South Wales
Treasury Corporation (the “Corporation”), and my audit responsibilities with respect to the books,
accounts and financial records of the New South Wales Total State Sector Accounts and of the
Corporation.
For the purposes of the Prospectus, I confirm as follows:
New South Wales Treasury Corporation
I have examined the financial statements of the Corporation and the notes thereto, for the years
ended 30 June 2007 and 30 June 2008 and confirm as follows:
Pursuant to the Public Finance and Audit Xxx 0000, as Auditor-General of New South Wales, I am the
independent authorised auditor of the Corporation. I have audited the financial statements of the
Corporation for the years ended 30 June
2007 and 30 June 2008 and have issued an unmodified
Independent Audit Reports in relation to the Corporation, in respect of both years. My examination
included a review of the accounting records of the Corporation and such tests and such other
auditing procedures as I considered necessary to comply with Australian Auditing Standards and the
Public Finance and Audit Xxx 0000.
Further, I advise that nothing has come to my attention that would lead me to believe that there
has been a material adverse change in the financial position of the Corporation since 30 June 2008.
Total State Sector Accounts
I have examined the financial statements of the NSW Total State Sector (Total State Sector
Accounts) and the notes thereto, for the years ended 30 June 2007 and 30 June 2008 and confirm as
follows:
Pursuant to the Public Finance and Audit Xxx 0000, as Auditor-General of New South Wales, I am the
independent authorised auditor of the NSW Total State Sector. I have audited the financial
statements of the NSW Total State Sector for the years ended 30 June
A-4
2007 and 30 June 2008 and have issued Qualified Independent Audit Reports in relation to the NSW
Total State Sector, in respect of both years. The Reports were qualified because I was unable to
obtain all information required to form an opinion on the value of Crown Reserves that should be
recorded as land, as the State has not yet completed its project of identifying and valuing such
land. Subject to such qualifications, in my opinion the Reports:
| • | present fairly, in all material respects, the financial position of the Total State Sector as at 30 June 2007 and 30 June 2008, and its financial performance and cash for the years then ended in accordance with Australian Accounting Standards (including the Australian Accounting Interpretations); | ||
| • | are in accordance with the Public Finance and Audit Xxx 0000; and | ||
| • | accord with the books and records of the Treasurer. |
My examination included a review of the accounting records of the Treasurer and such tests and such
other auditing procedures as I considered necessary to comply with Australian Auditing Standards
and the Public Finance and Audit Xxx 0000.
This letter is only for the information of persons to whom it is addressed and it is not to be
quoted from or referred to in whole or in part, in any literature relating to the issue of the
abovementioned Notes (other than in the Underwriting Agreement dated [•], 2009 and in any list of
closing documents relating to such issue) or otherwise.
Yours sincerely
Auditor General of New South Wales
| * | Note: Auditor-General Comfort Letter to be delivered as of the Applicable Time and the Time of Delivery. |
A-5
