Exhibit
4.3


 


FIRST
SUPPLEMENTAL INDENTURE


 


between


 


WESTPAC
BANKING CORPORATION


 


and


 


THE
BANK OF NEW YORK MELLON


 


(as
successor to The Chase Manhattan Bank)


 


as
Trustee


 


Dated
as of 


 

















 


FIRST
SUPPLEMENTAL INDENTURE


 


FIRST
SUPPLEMENTAL INDENTURE, dated as of    ,        (the “First Supplemental Indenture”),
between WESTPAC BANKING CORPORATION (ABN 33 007
457 141), a company incorporated in the Commonwealth of Australia under the
Corporations Act 2001 of Australia and registered in New South Wales (the “Company”),
and THE BANK OF NEW YORK MELLON, a New York
banking corporation, as successor to The Chase Manhattan Bank, as trustee (the “Trustee”).


 


RECITALS:


 


WHEREAS, the Company and The Chase Manhattan Bank are parties to a
Senior Indenture, dated as of July 1, 1999 (the “Base Indenture”
and as amended and supplemented by this First Supplemental Indenture, the “Indenture”),
relating to the issuance from time to time by the Company of Securities in one
or more series as therein provided;


 


WHEREAS, the Trustee has succeeded The Chase Manhattan Bank as trustee
under the Base Indenture;


 


WHEREAS, Section 8.1(5) of the Base Indenture provides that
the Company may enter into a supplemental indenture to change or eliminate any of
the provisions of the Base Indenture, provided that change or elimination shall
become effective only with respect to any series of Securities which has not
been issued as of the execution of such supplemental indenture or when there is
no Security Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;


 


WHEREAS, the Company deems it advisable to enter into this First Supplemental
Indenture for the purpose of amending and supplementing certain provisions of
the Base Indenture; and


 


WHEREAS, all conditions and requirements of the Base Indenture
necessary to make this First Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and fulfilled by
the parties hereto.


 


NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, receipt of which is hereby acknowledged by the
parties hereto, the parties hereto hereby agree as follows:


 

















 


ARTICLE
I

DEFINITIONS


 


Section 1.01          General
Definitions.  For purposes of this
First Supplemental Indenture:


 


(a)                 Capitalized terms used herein
without definition shall have the meanings specified in the Base Indenture;


 


(b)                 All references to Articles and
Sections, unless otherwise specified, refer to the corresponding Articles and
Sections of the Base Indenture; and


 


(c)                  The terms “herein,” “hereof,” “hereunder”
and other words of similar import refer to this First Supplemental Indenture as
a whole and not to any particular Article, Section or other subdivision.


 


ARTICLE
II

AMENDMENTS TO BASE INDENTURE


 


Section 2.01          Amendment
to Section 5.15.  Section 5.15
of the Base Indenture is hereby amended and restated, with respect to all
series of Securities issued after the date hereof, to read in its entirety as
follows:


 


“Waiver of Sovereign Immunity. 
To the extent that the Company or any properties, assets or revenues of
the Company may have or may hereafter become entitled to, or have attributed to
it, any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any thereof,
from setoff or counterclaim, from the jurisdiction of any court, from service
of process, from attachment upon or prior to judgment, from attachment in aid
of execution or judgment, or from execution of judgment, or other legal process
or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be
commenced, with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with any Security or any series of
this Indenture, the Company, to the extent permitted by applicable law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consent to such relief and enforcement, provided, however,
that nothing herein shall affect the applicability of:


 


(1)           Section 13A of
the Banking Act 1959 of the Commonwealth of Australia (the “Australian Banking
Act”), which provides that in the event of a bank such as the Company
becoming unable to meet its obligations or suspending payment thereof, the
assets of such bank in the Commonwealth of Australia shall be available to
meet, in priority to all other liabilities of the Company:


 


(i)                                     first,
certain obligations of the Company to the Australian Prudential Regulation
Authority (“APRA”) (if any) arising under Division 2AA of


 

















 


Part II
of the Australian Banking Act in respect of amounts payable by APRA to holders
of protected accounts in connection with the financial claims scheme (the “FCS”),
established under the Australian Banking Act;


 


(ii)                                  second, APRA’s costs (if any) in exercising its powers and
performing its functions relating to the Company in connection with the FCS;
and


 


(iii)                               third, the Company’s deposit liabilities in
Australia.


 


(2)           Section 86 of
the Reserve Bank Act 1959 of the Commonwealth of Australia, which provides, in
a winding-up of a bank such as the Company, that debts due to the Reserve Bank
of Australia by a bank such as the Company shall, subject to Section 13A
of the Australian Banking Act, have priority over all other debts of such bank
other than debts due to the Commonwealth of Australia; and


 


(3)           Section 16 of
the Australian Banking Act, which provides, in a winding-up of a bank such as
the Company, that, subject to Section 13A of the Australian Banking Act,
specified debts due to the APRA have priority over all other unsecured debts of
the bank.”


 


Section 2.02          Amendments
to Section 7.1.  Section 7.1
of the Base Indenture is hereby amended and restated, with respect to all
series of Securities issued after the date hereof, to read in its entirety as
follows:


 


“Consolidation, Merger or Sale of Assets Permitted.  The Company may not merge or consolidate with
or into any other Person or sell, convey or transfer all or substantially all
of its assets to any Person, unless (i) (A) in the case of such
merger or consolidation, the Company is the surviving Person or (B) the
Person formed by such consolidation or into which the Company is merged, or the
Person that acquires by sale, conveyance or transfer, the assets of the Company
expressly assumes by supplemental indenture delivered to the Trustee all the
obligations of the Company under the Securities and any coupons appertaining
thereto and under this Indenture, (ii) immediately thereafter, giving
effect to such merger or consolidation, or such sale, conveyance or transfer,
no Event of Default shall have occurred and be continuing and (iii) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel each stating that such merger, consolidation, sale,
conveyance or transfer complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with (which Opinion of Counsel may rely on such Officers’ Certificate with
respect to compliance with the preceding clause (ii)).  In the event of
the assumption by a successor Person of the obligations of the Company as
provided in clause (i)(B) of the immediately preceding sentence, such
successor Person shall succeed to and be substituted for the Company hereunder
and under the Securities and any coupons appertaining thereto and all such
obligations of the Company shall terminate and, if such successor Person is
organized under the laws of a country other than the Commonwealth of Australia
or a political subdivision of a country other than the


 

















 


Commonwealth of Australia, references in Section 9.8(a) hereof
(except clause (7) thereof) to “Commonwealth of Australia” shall be
treated as references to both the Commonwealth of Australia and the country in
which such successor Person is organized or resident (or deemed resident for
tax purposes).”


 


Section 2.03          Amendments
to Section 9.8.  Section 9.8
of the Base Indenture is hereby amended and restated, with respect to all
series of Securities issued after the date hereof, to read in its entirety as
follows:


 


“Payment of Additional Amounts. 
(a) All payments in respect of the Securities shall be made without
withholding or deduction for, or on account of, any taxes, assessments or other
governmental charges (“relevant tax”) imposed or levied by or on behalf
of the Commonwealth of Australia or any political subdivision or authority in
or of the Commonwealth of Australia, unless the withholding or deduction is
required by law.  In that event, the Company will pay such additional
amounts (“Additional Amounts”) as may be necessary so that the net
amount received by the Holder of the Securities, after such withholding or
deduction, will equal the amount that the Holder would have received in respect
of the Securities without such withholding or deduction.  However, the Company will pay no Additional
Amounts for or on account of:


 


(1)                                 any relevant tax that would not have been imposed but for the fact
that the Holder, or the beneficial owner, of the Securities was a resident,
domiciliary or national of, or engaged in business or maintained a permanent
establishment or was physically present in, the Commonwealth of Australia or
any political subdivision or taxing authority thereof or therein or otherwise
had some connection with the Commonwealth of Australia or any political
subdivision or taxing authority thereof or therein other than merely holding
such Securities, or receiving payments under such Securities;


 


(2)                                 any relevant tax that would not have been imposed but for the fact
that the Holder, or the beneficial owner, of the Securities presented such Securities
for payment in the Commonwealth of Australia, unless the Holder, or the
beneficial owner, was required to present such Securities for payment and it
could not have been presented for payment anywhere else;


 


(3)                                 any relevant tax that would not have been imposed but for the fact
that the Holder, or the beneficial owner, of the Securities presented such Securities
for payment more than 30 days after the date such payment became due and was
provided for, whichever is later, except to the extent that the Holder or beneficial
owner would have been entitled to the additional amounts on presenting such Securities
for payment on any day during that 30 day period;


 

















 


(4)                                 any relevant tax that is an estate, inheritance, gift, sale,
transfer, personal property or similar tax;


 


(5)                                 any relevant tax which is payable otherwise than by withholding or
deduction;


 


(6)                                 any relevant tax that would not have been imposed if the Holder, or the
beneficial owner, of the Securities complied with the Company’s request to
provide information concerning his, her or its nationality, residence or
identity or to make a declaration, claim or filing or satisfy any requirement
for information or reporting that is required to establish the eligibility of
the Holder, or the beneficial owner, of the Securities to receive the relevant
payment without (or at a reduced rate of) withholding or deduction for or on
account of any such relevant tax;


 


(7)                                 any relevant tax that would not have been imposed but for the Holder,
or the beneficial owner, of the Securities being an associate of the Company
for purposes of section 128F(6) of the Income Tax Assessment Act 1936 of the
Commonwealth of Australia (the “Australian Tax Act”);


 


(8)                                 any relevant tax that is imposed or withheld as a consequence of a
determination having been made under Part IVA of the Australian Tax Act
(or any modification thereof or provision substituted therefor) by the
Australian Commissioner of Taxation that such relevant tax is payable in
circumstances where the Holder, or the beneficial owner, of the Securities is a
party to or participated in a scheme to avoid such relevant tax which the
Company was not a party to;


 


(9)                                 any relevant tax that is imposed pursuant to European Council
Directive 2003/48/EC (the “Directive”) or any law implementing or
complying with, or introduced in order to conform to, such Directive, or any
agreement entered into by a Member State of the European Union with (A) any
other state or (B) any relevant, dependent or associated territory of any
Member State of the European Union providing for measures equivalent to, or the
same as those provided for by such Directive; or


 


(10)                          any combination of the foregoing.


 


In addition, the Company will pay no Additional Amounts to any Holder
who is a fiduciary or partnership or other than the sole beneficial owner of
the payment in respect of the Securities to the extent such payment would,
under the laws of the Commonwealth of Australia or any political subdivision or
authority of or in the Commonwealth of Australia, be treated as being derived
or received for tax purposes by a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or a beneficial


 

















 


owner who would not have been entitled to Additional
Amounts had it been the Holder of the Securities.


 


(b)           Any reference in
this Indenture or any indenture supplemental hereto to principal or interest
shall be deemed to also refer to any Additional Amount that may be payable
under this Section 9.8.”


 


ARTICLE
III

MISCELLANEOUS


 


Section 3.01          Integral
Part; Effect of Supplement on Indenture. 
This First Supplemental Indenture constitutes an integral part of the
Indenture.  Except for the amendments and
supplements made by this First Supplemental Indenture, the Base Indenture shall
remain in full force and effect as executed.


 


Section 3.02          Adoption,
Ratification and Confirmation.  The
Indenture, as supplemented by this First Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.


 


Section 3.03          Trustee
Not Responsible for Recitals. The recitals in this First Supplemental
Indenture shall be taken as statements of the Company, and the Trustee assumes
no responsibility for their correctness. 
The Trustee makes no representations as to the validity or adequacy of this
First Supplemental Indenture.


 


Section 3.04          Counterparts.  This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original but
such counterparts shall together constitute but one instrument.


 


Section 3.05          Separability.
 In case any provision of this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


 


Section 3.06          Governing
Law.  This First Supplemental
Indenture shall be governed by and construed in accordance with the laws of the
State of New York, including all matters of construction, validity and
performance.


 


[signature
page follows]


 

















 


IN WITNESS WHEREOF, the Company and the Trustee have executed this First
Supplemental Indenture as of the date first above written.


 


 


	
   

  	
  WESTPAC BANKING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: