Exhibit 4.2B


 




 


 





AUSTRALIA
AND NEW ZEALAND BANKING GROUP LIMITED


(A.B.N.
11 005 357 522),


 


As Issuer,


 


TO


 


 


 


THE
BANK OF NEW YORK,


 


As Trustee,


 


 












 


Second Supplemental Indenture


 


 


Dated as of [  ],
2004


 


To


 


Indenture


 


Dated as of January 15, 1994


 














 


 





 

















 


SECOND SUPPLEMENTAL INDENTURE, dated as of [  ], 2004, between AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
(A.B.N. 11 005 357 522), a corporation duly incorporated and existing under the
laws of the Commonwealth of Australia, as Issuer (herein called the “Company”),
having its principal office at 100 Queen Street, Melbourne, Victoria 3000,
Australia, and THE BANK OF NEW YORK, a banking corporation duly organized and
existing under the laws of the State of New York, United States of America, as
Trustee (herein called the “Trustee”).


 


RECITALS
OF THE COMPANY


 


The Company and the Trustee have entered into an Indenture dated as of
January 15, 1994 (herein called the “Indenture”), as amended and supplemented
by the First Supplemental Indenture dated as of May 29, 1998, providing for the
issuance from time to time of its unsecured subordinated debentures, notes or
other evidences of indebtedness (herein called the “Securities”), to be issued
in one or more series as provided in the Indenture.


 


Section 901(5) of the Indenture provides that, without the consent of
the Holders of Securities or coupons, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental thereto, in form satisfactory to the
Trustee, to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding.


 


As of the date of this Second Supplemental Indenture, the Company has
created a series of Securities, called “Subordinated Medium Term Notes, Series
A” pursuant to Section 301 of the Indenture pursuant to an Officers’
Certificate, dated January 15, 1994, as amended pursuant to an Officers’
Certificate dated May 29, 1998. 
Pursuant to the foregoing authority granted under Section 901(5) of the
Indenture, the Company intends to amend the Indenture by this Second Supplemental
Indenture in certain respects with respect to the Securities of all series of
Securities not heretofore Outstanding.


 


The entry into this Second Supplemental Indenture by the Company and
the Trustee is in all respects authorized by the provisions of the Indenture.


 


All things necessary to make this Second Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and
supplement to the Indenture have been done.


 


NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH, the
Company and the Trustee each hereby agree as follows:


 


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1.                                       The following definitions are hereby added to
Section 101:


 


“Australian Corporations Act” means the
Corporations Act 2001 (Cth) of Australia.


 


“Offshore Associate” has the meaning
specified in Section 1007.


 


2.                                       All references to the term “Australian
Corporations Law” are hereby replaced throughout the Indenture with the term
“Australian Corporations Act.”


 


3.                                       The following definitions in Section 101 of the
Indenture are hereby amended as follows:


 


“Place of Payment”, when used with respect to
the Securities of any series, means the place or places where the principal of
and any premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.


 


“Subsidiary” of any Person has the meaning
ascribed to the term “subsidiary” in relation to a body corporate by Section 9
of the Australian Corporations Act.


 


4.                                       The second and third paragraphs of Section 202 are
hereby amended as follows:


 


SECTION 202.                Form of Face of
Security.


 


[...]


 


Upon the occurrence of an Event of Default,
subject to the subordination provisions hereinafter referred to, there shall
become due and payable with respect to this Security, and the Company shall pay
to the Person in whose name this Security is registered on the date fixed for
payment, the principal amount hereof and all accrued and unpaid interest hereon
to such date for payment. An “Event of Default” is defined solely as the making
of an order by a court of the State of Victoria, Commonwealth of Australia or a
court with appellate jurisdiction from such court which is not successfully
appealed or permanently stayed within 60 days of the entry of such order, or
the valid adoption by the shareholders of the Company of an effective
resolution, in either case for the winding-up of the Company (other than under
or in connection with a scheme of amalgamation or reconstruction not involving
a bankruptcy or insolvency) [if applicable,
insert additional Events of Default provided pursuant to Section 501(ii) of the
Indenture].


 


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Payment of the principal of (and premium, if
any) and [if
applicable, insert — any such] interest on this Security will be
made at the office or agency of the Company maintained for that purpose in
           , in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [if applicable, insert — ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].


 


[...]


 


5.                                       The first eighth and tenth paragraphs of Section
203 of the Indenture are hereby amended as follows:


 


SECTION 203.                Form of Reverse of
Security.


 


This Security is one of a duly authorized
issue of securities of the Company (herein called the “Securities”),  issued and to be issued in one or more
series under an Indenture, dated as of January 15, 1994 (herein called the
“Indenture”, which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Trustee (herein
called the “Trustee”, which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the Other Creditors and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert — , limited in aggregate principal
amount to $        ].  [if applicable, insert —; provided, however, that the Company
may from time to time or at any time, without the consent of the Holders of the
Securities, create and issue additional Securities with terms and conditions
identical to those of the Securities, which additional Securities shall
increase the aggregate principal amount of, and shall be consolidated and form
a single series with, the Securities].


 


[...]


 


[If
applicable, insert – Under the existing requirements of the
Australian Prudential Regulatory Authority (“APRA”), no redemption, purchase or
repurchase of any Securities prior to their Stated Maturity may be made by the
Company or any of its Subsidiaries without the prior consent of APRA, unless
otherwise specified or determined by APRA.]


 


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[...]


 


If the Company fails to pay (i) any interest
on the relevant Payment Date, and such failure is continued for 30 days, or
(ii) the principal amount of, and any premium, on the Securities when due, then
in each of such cases such failure shall constitute a “Default”.  If any Default shall occur and be
continuing, the Trustee may pursue actions for specific performance,  commence a judicial proceeding for the
collection or recovery of the sums so due and unpaid or for the enforcement of
any such payment due or institute a proceeding in the State of Victoria,
Commonwealth of Australia (but not elsewhere) for the winding-up of the
Company; provided, however, that the Trustee may not declare the principal
amount of the Securities to be due and payable.


 


[...]


 


6.                                       Paragraph (6) of Section 301 of the Indenture is
hereby amended as follows:


 


SECTION 301.                Amount Unlimited;
Issuable in Series.


 


[...]


 


(6) the place or places where the principal
of and any premium and interest on any Securities of the series shall be
payable, any Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and notices
and demands to or upon the Company in respect of the Securities of the series
and this Indenture may be served


 


7.                                       Section 301 of the Indenture is hereby amended by
the removal of the word “and” in numbered paragraph (18) and the insertion of
the following paragraph after numbered paragraph (18):


 


SECTION 301.                Amount Unlimited;
Issuable in Series.


 


[...]


 


(18.1)                   if the Company may from time to time
without the consent of the Holders create and issue further securities having
the same terms and conditions as the Securities in all respects (or in all
respects except for the issue date, the first payment of interest thereon
and/or issue price), so that such further issue shall be consolidated and form
a single series with the outstanding Securities of any series or upon such
terms as the Company


 


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may determine at the time of their issue; and


 


[...]


 


8.                                       The first paragraph of Section 305 of the
Indenture is hereby amended as follows:


 


The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register (the register  maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the “Security Register”) in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities.  The Trustee is hereby appointed “Security
Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided.


 


9.                                       Section 501 of the Indenture is hereby amended as
follows:


 


SECTION 501.                Event of Default


 


“Event of Default”, wherever used herein with
respect to Securities of any series, means (i) the making of an order by a
court of the State of Victoria, Commonwealth of Australia or a court with
appellate jurisdiction from such court which is not successfully appealed or
permanently stayed within 60 days of the entry of such order, or the valid
adoption by the shareholders of the Company of an effective resolution, in each
case for the winding-up of the Company (other than under or in connection with
a scheme of amalgamation or reconstruction not involving bankruptcy or
insolvency) or (ii) any other Event of Default specified with respect to
Securities of such series as contemplated by Section 301.


 


10.                                 Section 503 of the Indenture is hereby amended as
follows:


 


SECTION 503.                Collection of
Indebtedness and Suits for Enforcement by Trustee.


 


“Default”, wherever used herein with respect
to Securities of any series, means any one of the following events (whatever
the reason for such Default and whether it shall be voluntary or involuntary or
be effected by operation of law pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):


 


(1)                                  default is made in
the payment of any interest on any Security


 


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when such interest becomes due and payable and such default continues
for a period of 30 days, or


 


(2)                                  default is made in
the payment of  the principal of (or
premium, if any, on) any Security at the Maturity thereof.


 


If a Default shall occur and be continuing,
the Trustee may pursue actions for specific performance, commence a judicial
proceeding for the collection or recovery of the sums so due and unpaid or for
the enforcement of any such payments due or institute a proceeding for the
winding-up in the State of Victoria, Commonwealth of Australia (but not
elsewhere) of the Company; provided, however, that the Trustee may not, upon
the occurrence of a Default, declare the principal amount of any of the
Outstanding Securities to be due and payable. 
Holders of Securities by their acceptance thereof will be deemed to have
waived any right of set-off or counterclaim that they might otherwise have
against the Company in any such winding-up.


 


No recourse for the payment of the principal
of, or any premium or interest on, any Security, or for any claim based thereon
or otherwise in respect thereof and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture, or in any Security, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, shareholder, officer or director, past, present or
future, of the Company or of any successor corporation of the Company, either
directly or through the Company or any successor corporation of the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that to the extent lawful all such liability is hereby expressly
waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.


 


11.                                 The first paragraph of Section 1003 of the
Indenture is hereby amended as follows:


 


SECTION 1003.         Money for Securities
Payments to be Held in Trust


 


If the Company shall at any time act as its
own Paying Agent with respect to any series of Securities, it will, on or
before each due date of the principal of or any premium or interest on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any
premium and interest so becoming due until such sums shall be paid to such
Persons or


 


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otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.


 


12.                                 Section 1007 of the Indenture is deleted in its
entirety and replaced by the following:


 


SECTION 1007.         Additional Amounts


 


All payments of, or in respect of, principal
of, and any premium and interest on, the Securities shall be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed or
levied by or on behalf of Australia or any political subdivision or taxing
authority thereof or therein, unless such taxes, duties, assessments or
governmental charges are required by Australia or any political subdivision or
taxing authority thereof or therein to be withheld or deducted.  In that event, the Company will pay such
additional amounts of, or in respect of, the principal of, and any premium and
interest on, the Securities (“Additional Amounts”) as will result (after
deduction of such taxes, duties, assessments or governmental charges and any
additional taxes, duties, assessments or governmental charges payable in
respect of such) in the payment to the Holder of each Security of the amounts
which would have been payable in respect of such Security had no such
withholding or deduction been required, except that no Additional Amounts shall
be so payable for or on account of:


 


(1)                              any withholding,
deduction, tax, duty, assessment or other governmental charge which would not
have been imposed but for the fact that such Holder:  (A) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically present in,
Australia or otherwise had some connection with Australia other than the mere
ownership of, or receipt of payment under, such Security; or (B) presented such
Security more than thirty (30) days after the date on which the payment in
respect of such Security first became due and payable or provided for,
whichever is later, except to the extent that the Holder would have been
entitled to such Additional Amounts if it had presented such Security for payment
on any day within such period of thirty (30) days;


 


(2)                                     any estate,
inheritance, gift, sale, transfer, personal property or similar tax, assessment
or other governmental charge or any withholding or deduction on account of such
taxes;


 


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(3)                                     any tax,
assessment or other governmental charge which is payable otherwise than by
withholding or deduction from payments of (or in respect of) principal of, or
any premium or interest on, the Securities;


 


(4)                                     any withholding,
deduction, tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the Holder of such Security or, in the
case of a Global Security, the beneficial owner of such Security to comply with
a request of the Company addressed to such Holder or beneficial owner, as the
case may be, (A) to provide information concerning the nationality, residence
or identity of such Holder or such beneficial owner, as the case may be, (B) to
make any declaration or other similar claim or satisfy any information or
reporting requirement or (C) to provide an Australian tax file number,
Australian Business Number or proof of an appropriate exemption, which, in the
case of (A), (B) or (C) is required or imposed by a statute, treaty, regulation
or administrative practice of Australia or any political subdivision or taxing
authority thereof or therein as a precondition to exemption from all or part of
such withholding, deduction, tax, assessment or other governmental charge;


 


(5)                                   any
combination of items (1), (2), (3) and (4);


 


nor shall Additional Amounts be paid with
respect to any payment of, or in respect of, the principal of, or any premium
or interest on, any such Security to any such Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would, under the laws of Australia or any political
subdivision or taxing authority thereof or therein, be treated as being derived
or received for tax purposes by a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to such Additional Amounts had it been the Holder of the
Security.


 


The Company will not be liable
to pay Additional Amounts to any Holder for any deduction or withholding on
account of any duties or taxes where those duties or taxes are imposed or
levied by or on behalf of the Commonwealth of Australia by virtue of the Holder
being an “Offshore Associate” (to whom the payment is made other than in the
capacity of a clearing house, paying agent, custodian, funds manager or
responsible entity of a registered scheme within the meaning of the Australian


 


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Corporations Act 2001) or as a result of the
Holder being a party to or participant in a scheme to avoid such duties or
taxes.  “Offshore Associate” means an
“associate” (which is defined in s128F(9) of the Income Tax Assessment Act 1936
of Australia) of the Company that is either a non-resident of the Commonwealth
of Australia which does not acquire or receive payments in respect of the
Security in carrying on a business at or through a permanent establishment in
Australia or, alternatively, a resident of Australia that acquires or receives
payment in respect of the Security in carrying on business at or through a
permanent establishment outside of Australia.


 


Whenever in this Indenture
there is mentioned, in any context, any payment of, or in respect of, the
principal of, or any premium or interest on, any Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section, and any express mention of the payment of
Additional Amounts in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.


 


13.                                 The first paragraph of Section 1301(a) and Section
1301(b) of the Indenture are hereby amended as follows:


 


SECTION 1301.         Securities Subordinated
to Claims of Other Creditors.


 


(a)                                  The rights of the
Holders of Securities are, in the event of a winding-up of the Company,
subordinated to the claims of Other Creditors and accordingly the obligation of
the Company to make, and the entitlement of the Holders of Securities to
receive and retain, any payment of the principal of, or any premium or interest
on, the Securities of any series (including any Additional Amounts) is
expressly conditioned, from and after the commencement of a winding-up of the
Company, on the satisfaction in full of the claims of the Other Creditors, and
no payment in respect of the principal of, or any premium or interest on, any
Securities of any series which under any provision of such Securities or this
Indenture would otherwise fall due and payable shall be so due and payable
while the claims of the Other Creditors remain unsatisfied in whole or in part.


 


[...]


 


(b)                                 If an order is made by
a court of the State of Victoria, Commonwealth of Australia or a court with
appellate jurisdiction from


 


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such court and is not successfully appealed
or permanently stayed within 30 days of the entry of such order, or an
effective shareholders’ resolution is validly adopted, in either case for the
winding-up of the Company in Victoria (other than under or in connection with a
scheme  of amalgamation or
reconstruction not involving a bankruptcy or insolvency), the principal amount
of, and all accrued and unpaid interest on, the Securities shall automatically
and without any further action of any Person become due and payable, subject to
the provisions of paragraph (a) above.


 


14.                                 No Application to Securities of
all Series Outstanding


 


The provisions of the Indenture effected through this Second
Supplemental Indenture shall not have retroactive effect and shall neither (i)
apply to any Security of any series Outstanding when such Second Supplemental
Indenture is executed and entitled to the benefit of such provisions nor (ii)
modify the rights of any Holder of any such Security with respect to such
provision.


 


15.                                 Governing Law.


 


This Second Supplemental Indenture shall be governed by, and construed
in accordance with, the laws of the State of New York; provided, however, that (a) the
authorization and execution of this Second Supplemental Indenture by and on
behalf of the Company, (b) the occurrence of an Event of Default under Clause
(i) of Section 501 of the Indenture, as amended hereby and (c) Article Thirteen
of the Indenture, as amended hereby, shall be governed by, and construed in
accordance with, the laws of the State of Victoria, Commonwealth of Australia.


 


16.                                 Recitals.


 


The Trustee has no responsibility for the correctness of the statements
of facts contained herein under “Recitals of the Company”.


 


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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed all as of the day and year first
above written.


 


 


	
   

  	
  AUSTRALIA AND NEW ZEALAND BANKING

  GROUP LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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