Exhibit 4.1.5


 


	
  

  	
   

  	
  

  



 


 


Strictly Private
& Confidential


 


 


23 October 2003


 


 


Australia and New Zealand Banking Group Limited


Level 34


100 Queen Street


Melbourne VIC 3000


 


 


Dear Sirs,


 


Volume underwritten capital raising for
Australia and New Zealand Banking Group Limited


 


1             Overview


 


Deutsche Bank AG, Sydney Branch (ABN 13 064 165 162) and Morgan Stanley
& Co. International Limited (the Underwriters or we) are pleased to confirm
the terms on which we offer to underwrite and manage the capital raising for
Australia and New Zealand Banking Group Limited (ABN 11 005 357 522) (ANZ)
as set out in this agreement.  The
parties agree that an Underwriter may perform its obligations under this
agreement through any of its related bodies corporate.


 


ANZ wishes to raise up to a maximum amount of AUD1.2 billion, or
such other amount as ANZ and the Underwriter agree (in each case the Underwritten
Amount).


 


ANZ proposes to raise this funding by undertaking the Transaction.  The Transaction is intended to achieve a
capital raising by ANZ that will qualify as Tier 1 Capital for the purposes of
the Prudential Statements.


 


In this agreement, expressions have the meaning given to them in
schedules 1 and 2.  If there is any
inconsistency between the terms of this agreement and the terms of the Purchase
Agreement, the Purchase Agreement will prevail to the extent of the
inconsistency.


 


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2             Appointment of Underwriters


 


2.1           ANZ
appoints the Underwriters to coordinate completion of the Transaction and
underwrite the Issue, and agrees that it will appoint affiliates of the
Underwriters as its global joint lead managers and bookrunners to manage the
Issue.  The Underwriters agree to
coordinate completion of the Transaction and to underwrite the Issue on the
terms and subject to the conditions of this agreement.


 


2.2           The
Underwriters may undertake any or all of the following:


 


(a)           arrange
for the global joint lead managers and bookrunners to the Issue to invite
persons to subscribe for Trust Securities via a bookbuild process in accordance
with the Purchase Agreement;


 


(b)           appoint
a sub-underwriter or sub-underwriters to sub-underwrite part or all of the
Trust Securities (but any appointment of any sub-underwriter will not affect
the Underwriters’ liability and obligations under this agreement);


 


(c)           otherwise
manage the Issue of the Trust Securities via such process as the Underwriters
agree with ANZ; and


 


(d)           anything
else agreed between the Underwriters and ANZ.


 


2.3           The
obligations of the Underwriters under this agreement are several, and not joint
or joint and several.


 


3             Conditions precedent


 


(a)           The
obligations of all parties under this agreement are conditional on:


 


(1)           ANZ
completing its purchase of The National Bank of New Zealand Limited from Lloyds
TSB Bank plc;


 


(2)           APRA
approving in writing ANZ’s proposed redemption of all its outstanding TrUEPrS
(being its 2 tranches of Trust Units Exchange for Preference Shares issued in
September 1998 and November 1998); and


 


(3)           ANZ
issuing a notice to redeem all its outstanding TrUEPrS.


 


(b)           The
obligations of the Underwriters under this agreement with respect to the
Securities are conditional on:


 


(1)           the
terms of the Securities being:


 


(A)          in the
case of Securities issued in the United States of America, on substantially the
terms described in schedule 2;


 


(B)           in the
case of Securities issued in Australia, on terms and conditions, and using an
Offer Management Agreement, that are substantially the same as for ANZ’s StEPS
transaction; or


 


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(C)           in the
case of Securities issued in any other Approved Jurisdiction, on substantially
the terms described in schedule 2 but with such structural modifications
as the parties agree are appropriate to reflect market practice,


 


or otherwise as agreed by ANZ and the
Underwriters which agreement may not be unreasonably withheld or delayed;


 


(2)           execution
and delivery of the Purchase Agreement and the other Transaction Documents in
form and substance reasonably satisfactory to the Underwriters and there being
no breach by any Relevant Party of, or failure by any Relevant Party to comply
with, the Purchase Agreement or any other Transaction Document, or any
obligation or condition imposed on a Relevant Party by any of them;


 


(3)           execution
and delivery (and, to the extent applicable, lodgement and registration with
any Authority) by ANZ and all other relevant parties (other than the
Underwriters) of all other documents required in connection with the Issue in
form and substance reasonably satisfactory to the Underwriters; and


 


(4)           the
Underwriters having received legal and tax opinions in relation to the
Securities in form and substance reasonably satisfactory to the Underwriters.


 


4             Scope of underwriting


 


4.1           The
underwriting will be limited to the underwriting of the Issue.


 


4.2           Subject
to the terms of this agreement and the Purchase Agreement, each Underwriter
agrees on request by ANZ:


 


(a)           to use
its reasonable endeavours to procure persons to agree to purchase and pay for
Trust Securities within 3 months of the date of this agreement;


 


(b)           to the
extent that persons agree to purchase Trust Securities within 3 months of
the date of this agreement, to subscribe and pay for those Trust Securities as
described in the Purchase Agreement; and


 


(c)           to the
extent that the aggregate amount which the Underwriters are obliged to pay
under paragraph (b) for Trust Securities within 3 months of the date of
this agreement is less than the Underwritten Amount, to subscribe for additional
Trust Securities on the last day of that period of 3 months for an
aggregate subscription price equal to one-half of the Shortfall Amount, at a
subscription price per Trust Security that produces a yield for those Trust
Securities equal to the sum of:


 


(1)           the
yield of the relevant Benchmark Security; plus


 


(2)           the
relevant Swap Spread; plus


 


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(3)           the
Underwritten Margin.


 


4.3           ANZ
agrees and acknowledges that the underwriting contemplated by this agreement is
in no way an underwriting, assurance or guarantee as to:


 


(a)           the
manner, markets or jurisdictions in which the Underwriters will be able to
offer or sell the Trust Securities; or


 


(b)           the
qualification of the funds raised by the Issue as Tier 1 Capital.


 


4.4           Each
Underwriter must ensure that it does not acquire Trust Securities in breach of
the Financial Sector Act or any other applicable law in fulfilling its
obligations under this agreement and must, if necessary, procure other
purchases for the Trust Securities if an acquisition by it would breach any of
those laws.


 


5             Fees and expenses


 


5.1           ANZ
must pay to the Underwriters an aggregate underwriting fee of 0.125% of the
Underwritten Amount on completion of the issue of the Securities on the Settlement
Date.  This fee does not include
GST.  If GST is payable in respect of
the fee, ANZ will pay an amount equal to the GST to the Underwriter promptly
after it receives an appropriate tax invoice.


 


5.2           ANZ
acknowledges that it will agree in the Purchase Agreement to pay the joint lead
managers an aggregate selling fee of 1.00% of the proceeds of the Issue on
completion of the Issue on the Settlement Date.


 


5.3           ANZ
must pay any amount of stamp duty or other transactional taxes (including
fines, penalties and any other related costs) payable in respect of this
agreement, the Transaction Documents or the Issue.


 


5.4           An
Underwriter may set off all amounts payable to it under this clause 5
against any payment obligation owed by that Underwriter (or its related bodies
corporate or settlement nominee) to ANZ or a Relevant Party in connection with
the Issue (including an obligation to account to ANZ for proceeds received in
connection with settlement of any Issue), except that the Underwriters may not
set-off more than $500,000 in aggregate without the consent of ANZ, which
consent must not be unreasonably withheld or delayed.


 


5.5           Each
Underwriter reserves the right to charge interest at the 90 day bank bill rate
(as at the date the relevant amount became due and payable), expressed as a
percentage per annum, plus a margin of 2% per annum, on any unpaid amount which
has become due and payable to that Underwriter in accordance with this clause 5
(calculated on a daily basis from and including the date on which the relevant
amount became due and payable until but excluding the date of payment).


 


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6             Allocations


 


6.1           The
Underwriters, after consultation with ANZ, have the right to determine the
placements and allocations in respect of the Securities within the Approved
Jurisdictions, subject to such requirements as may be set out in the Purchase
Agreement.


 


6.2           ANZ
acknowledges that placements and/or allocations may be on the basis of
confirmation documentation which provides that placees will have no further
obligation to subscribe for the relevant Trust Securities if the Underwriters
properly terminate (or it are taken to have properly terminated) their
obligations under this agreement or the Purchase Agreement before settlement of
the relevant subscription.


 


6.3           ANZ
acknowledges and agrees that the Underwriters will not be obliged to subscribe
and pay for Trust Securities under clause 4.2 to the extent that ANZ
Capital Trust does not accept any application for Trust Securities that is made
in accordance with the Transaction Documents, unless it does so with the
agreement of the Underwriters.


 


7             Settlement


 


Procedures for settlement of the Securities will be specified in the
Purchase Agreement.  So far as
practicable, settlement for the Securities will be on a delivery-versus-payment
basis and effected via a recognised clearing and settlement system for
securities of the relevant type in the jurisdiction concerned.


 


ANZ must do, and must procure that each Relevant Party does, everything
necessary to be done by it to comply with those procedures.


 


8             Undertakings of ANZ


 


ANZ agrees:


 


(a)           to use
its reasonable endeavours to procure the execution of the Transaction Documents
and the completion of the Issue, in each case on terms reasonably acceptable to
itself and the Underwriters, within 45 days of the date of this agreement or,
if this cannot be completed by that time, as soon as practicable after then and
in any event within 3 months of the date of this agreement;


 


(b)           without
limiting paragraph (a), to not unreasonably withhold its consent to completion
of the Issue after the Transaction Documents have been executed;


 


(c)           if
required by the Underwriters or otherwise in accordance with the terms of the
Issue, to use its best endeavours to procure the listing or official quotation
(as applicable) of the Trust Securities on the Luxembourg stock exchange;


 


(d)           to (or
to procure that the appropriate Relevant Party does) offer and issue all
Securities in accordance with its constitution, the Banking Act, the
Corporations Act, the Listing Rules or rules of any other relevant stock


 


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exchange, any other applicable law or
regulation and any other requirement of any Authority;


 


(e)           to comply
with all applicable law in the course of its participation in the Transactions;


 


(f)            if
the Issue proceeds, to lodge or register all notices, documents and
undertakings with all relevant Authorities as may be necessary or reasonably
considered by the Underwriters to be desirable in connection with the Issue;


 


(g)           to
comply with any undertaking that it or the Issuer gives to any Authority in
connection with the Issue;


 


(h)           to not
offer or issue Securities in breach of the ANZ StEPS or contrary to any statements
made within the ANZ StEPS prospectus;


 


(i)            if
the Issue proceeds, to comply and procure that each Relevant Party complies
with all other reasonable requirements of the Underwriters in connection with
the Issue; and


 


(j)            to comply and procure that each
Relevant Party complies with all its obligations specified in the Purchase
Agreement.


 


ANZ acknowledges that each Underwriter is entering into this agreement
in reliance on these undertakings.


 


9             Undertakings of the Underwriters


 


The Underwriters agree:


 


(a)           to use
their reasonable endeavours to procure the execution of the Transaction
Documents and the completion of the Issue, in each case on terms reasonably
acceptable to themselves and ANZ, within 45 days of the date of this agreement
or, if this cannot be completed by that time, as soon as practicable after then
and in any event within 3 months of the date of this agreement;


 


(b)           without
limiting paragraph (a), to take such steps as ANZ may reasonably request
to assist it to obtain any approval required by either Underwriter under the
Financial Sector Act in connection with the Transaction; and


 


(c)           that
they will comply with all applicable law in the course of their participation
in the Transaction, and in particular that they will not offer the Trust
Securities in a manner that will cause ANZ or any Relevant Party to breach any
applicable law or regulation.


 


10           Indemnity


 


ANZ agrees it will indemnify the Underwriters and their related bodies
corporate and their respective officers, employees, advisers and agents (“Indemnified
Parties”) and to hold them harmless from and against all claims,
demands, actions or proceedings (“Claims”) suffered or incurred by the
Indemnified Party as a


 


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result of or in connection with the Issue, except to the extent that
the Claim results from:


 


(a)           the
negligence or wilful misconduct or breach of any statutory provision, fiduciary
duty or other equitable obligation of an Indemnified Party;


 


(b)           any
penalty or fine which an Indemnified Party is required to pay for any
contravention by it of applicable law;


 


(c)           any
amount in respect of which the indemnity is illegal, void or unenforceable
under any applicable law;


 


(d)           any
announcement, advertisement or publicity made or distributed by an Indemnified
Party in relation to the Issue without the approval of ANZ;


 


(e)           a
breach by an Underwriter of this agreement; or


 


(f)            the
failure of an Indemnified Party to take reasonable steps to mitigate the loss
it might suffer by reason of the Claim.


 


The parties agree to comply with schedule 3 in relation to any Claim or
potential Claim.


 


11           Announcements and publicity


 


Except to the
extent required by law, each of ANZ and each Underwriter agrees that neither it
nor any of its related bodies corporate will make any release or announcement
or engage in publicity in relation to this agreement or any Issue without the
prior approval of the other parties, which approval must not be unreasonably
withheld.


 


12           Reliance on information


 


To the extent permitted by law, ANZ must provide to the Underwriters
any information that the Underwriters reasonably consider is required for them
to complete their obligations under this agreement or the Purchase
Agreement.  ANZ agrees and acknowledges
that the Underwriters:


 


(a)           will
use and rely on information provided by ANZ in performing their obligations
under this agreement without having independently verified the information; and


 


(b)           do not
assume responsibility for the accuracy or completeness of the information or
any other information on which they may rely in connection with this agreement.


 


13           Confidentiality


 


A party must not disclose any information concerning the contents of,
or the transactions contemplated by, this agreement, except to the extent that:


 


(a)           the
disclosure is expressly permitted by the Purchase Agreement;


 


(b)           the
other parties consent to the disclosure;


 


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(c)           the
information is already in the public domain, unless it entered the public
domain because of a breach of confidentiality by the party;


 


(d)           the
disclosure is made on a confidential basis to the party’s officers, employees
or professional advisers, and is necessary for the party’s business;


 


(e)           the
disclosure is necessary to comply with any applicable law, or an order of a
court or tribunal;


 


(f)            the
disclosure is necessary to comply with a directive or request of APRA, the
Australian Stock Exchange or the Luxembourg Stock Exchange, or a directive or
request of any other governmental body (whether or not having the force of
law), as long as a responsible person in a similar position would comply with
that directive or request; or


 


(g)           the
disclosure is necessary or desirable in relation to any discovery of documents,
or any proceedings before a court, tribunal, other government agency or stock
exchange.


 


14           Governing law


 


This agreement is governed by and is to be construed in accordance with
the laws in force in Victoria.  The
parties submit to the non-exclusive jurisdiction of the courts exercising
jurisdiction in Victoria.


 


15           Term of agreement


 


This agreement starts on the date on which you accept the offer by
returning a signed copy of this letter to us and terminates on the earliest of
the following:


 


(a)           on the
Settlement Date; and


 


(b)           the
day that is three (3) months from the date on which you sign this agreement.


 


The termination of this agreement is without prejudice to clauses 5 and
10 to 15.  All other rights and
obligations under this agreement terminate when this agreement ends.


 


Please
confirm your agreement with these terms and conditions by returning a signed
copy of this letter to the person named in the schedule.  This offer is open for acceptance until
12.00 noon Sydney time on the date of this letter.  If we have not received your acceptance by then the offer
lapses.  If you accept the offer, the
arrangements contemplated by this letter become legally binding.


 


Yours faithfully,


 


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  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNED
  on behalf of DEUTSCHE

  	
  )

  	
   

  	
   

  
	
  BANK AG, SYDNEY BRANCH by
  its

  	
  )

  	
   

  	
   

  
	
  duly authorised
  representatives

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ M Ormaechea

  	
   

  	
  /s/ G Tarrant

  	
   

  
	
  Authorised
  Representative

  	
   

  	
  Authorised
  Representative

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Michael Ormaechea

  	
   

  	
  Geoff Tarrant

  	
   

  
	
  Print name

  	
   

  	
  Print name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNED
  on behalf of MORGAN

  	
  )

  	
   

  	
   

  
	
  STANLEY & CO. INTERNATIONAL

  	
  )

  	
   

  	
   

  
	
  LIMITED by
  its duly authorised

  	
  )

  	
   

  	
   

  
	
  representatives

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ A McMahon

  	
   

  
	
   

  	
   

  	
  Authorised
  Representative

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Alex McMahon

  	
   

  
	
   

  	
   

  	
  Print name

  	
   

  



 


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Accepted and agreed to as of the date of this agreement:


 


 


	
  SIGNED
  on behalf of AUSTRALIA

  	
  )

  	
   

  	
   

  
	
  AND NEW ZEALAND BANKING

  	
  )

  	
   

  	
   

  
	
  GROUP LIMITED
  by:

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ D Valentine

  	
   

  	
  /s/ R Moscati

  	
   

  
	
  Authorised Signatory

  	
   

  	
  Authorised Signatory

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  David Valentine

  	
   

  	
  Rick Moscati

  	
   

  
	
  Print name

  	
   

  	
  Print name

  	
   

  



 


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Schedule 1 –
Definitions and Interpretation


 


1.     Definitions


 


ANZ StEPS
mean the ANZ Stapled Exchangeable Preferred Securities.


 


Approved Jurisdiction
means the United States of America, the United Kingdom, Europe, Australia and
any other jurisdiction agreed by ANZ and the Underwriters.


 


APRA means
the Australian Prudential Regulation Authority.


 


Associates
has the same meaning as in the Financial Sector (Shareholdings) Act 1998.


 


ASX
means the securities exchange operated by Australian Stock Exchange Limited.


 


Authority
means:


 


(c)           any
government or any governmental, semi-governmental, regulatory, fiscal or
judicial body, department, commission, authority, tribunal, agency or entity,
including APRA;


 


(d)           any
stock exchange, listing authority or similar body; or


 


(e)           any
self-regulatory organisation established under statute or with whose
requirements it is the practise of responsible participants in the relevant
industry or market to comply,


 


in each case in Australia or any other Approved Jurisdiction in which
Securities may be Issued in whole or part.


 


Benchmark Security means,
in the case of Trust Securities denominated in United States Dollars, the
applicable US Treasury bond with a maturity that most closely matches the last
day of the primary term of the Trust Security (being the first date on which
the holder of the Trust Security may exchange the Trust Security for ordinary shares
in ANZ under the heading “Exchange of Trust Securities for ANZ Ordinary Shares”
in the final terms of the Trust Securities), and means with reference to any
other Trust Security, the relevant benchmark as determined by the Underwriters
in accordance with market practice.


 


Business Day
means a day that is not a Saturday, Sunday or public holiday in any of
Melbourne, Sydney or New York City.


 


Current Margin
means:


 


(a)           in the case of ANZ StEPS, the margin to semi
annual A$ swap (mid) determined in accordance with market convention, as agreed
by the parties; or


 


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(b)           in the case of the Reference Securities, the
margin to the relevant Benchmark Security, converted to a margin to US$ swap
(mid) determined in accordance with market convention, as agreed by the
parties,


 


or, if the parties are unable to agree within 3 Business Days, as
determined by the Underwriter.


 


Final Date
means the later of the Settlement Date and the date referred to in clause
15(b).


 


Financial Sector Act
means the Financial Sector (Shareholdings) Act 1998 (Cth).


 


GST
means the goods and services tax as imposed
by the GST Law.


 


GST Law
has the meaning given to that term in A New Tax
System (Goods and Services Tax) Act 1999, or, if that Act does not
exist for any reason, means any Act imposing or relating to the imposition or
administration of a goods and services tax in Australia and any regulation made
under that Act.


 


Indemnified Claim
means any Claim made against, an Indemnified Party in respect of which that
Indemnified Party has claimed a right to be indemnified by ANZ under
clause 10.


 


Indemnified Parties
is defined in clause 10.


 


Issue means
the offering and/or issue of the Trust Securities and includes inviting or
soliciting applications or offers for the Trust Securities.


 


Market Maker
means each Underwriter or any other market maker as agreed between ANZ and the
Underwriters.


 


Prudential Statements
means APRA Guidance Note (AGN) 111.1 – Tier 1 Capital.


 


Reference Securities
means the 5.805% CBA Capital Trust I Trust Preferred Securities the 5.819%
Westpac Capital Trust III Trust Preferred Securities and the 5.62% National
Capital Trust I Trust Preferred Securities.


 


Relevant Party means:


 


(a)           ANZ;


 


(b)           ANZ US
Sub;


 


(c)           ANZ NZ
Sub; and


 


(d)           ANZ
Capital Trust.


 


Securities means
each of:


 


(a)           the
ANZ Preference Shares;


 


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(b)           the
Notes;


 


(c)           the
Stapled Securities; and


 


(d)           the
Trust Securities.


 


Settlement Date means
the date for settlement of the issue of the Securities.


 


Shortfall Amount means
the amount (if any) by which the Underwritten Amount exceeds the aggregate
amount payable by the Underwriters under clause 4.2(b).


 


Swap Spread
means the difference between the yield of the Benchmark Security and the yield
of the swap rate (mid) for the jurisdiction of issue determined in accordance
with market convention, as agreed by the parties.


 


Tier 1 Capital has
the meaning given to it in the Prudential Statements.


 


Transaction
means the negotiation and execution of the Transaction Documents and the issue
and purchase of the Securities as contemplated by them.


 


Transaction Documents
means each document contemplated, or required to give effect to the matters
contemplated, by schedule 2.


 


Underwritten Amount is
defined in clause 1.


 


Underwritten Margin means a margin (expressed as a percentage) determined by the
Underwriters equal to the greater, of:


 


(a)           the
ANZ StEPS margin, being the higher of:


 


(i)            the
Current Margin of ANZ StEPS, as determined by the Underwriters by reference to
the price of ANZ StEPS as quoted on the ASX at the close of business on the ASX
on the business day prior to the issue date of the Securities, multiplied by a
factor of 1.5; and


 


(ii)           the
Current Margin of ANZ StEPS, as determined by the Underwriters by reference to
the volume weighted average price of ANZ StEPS as quoted on the ASX at the
close of business on each of the 20 Business Days prior the issue date of the
Securities, multiplied by a factor of 1.5; and


 


(b)           the
Reference Securities margin, being the higher of:


 


(i)            the
average of the Current Margins of the Reference Securities, as quoted by the
Market Maker, at or about 10.00 am (New York time) on the date of issue of the
Securities multiplied by a factor of 1.5; and


 


(ii)           the average of the
Current Margins of the Reference Securities, as quoted by the Market Makers, at
or about 10.00 am (New York time) on each of the 20 Business Days preceding the
issue date of the Securities multiplied by a factor of 1.5.


 


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2.     Interpretation


 


Headings
are for convenience only, and do not affect interpretation.  The following rules also apply in
interpreting this agreement, except where the context makes it clear that a rule
is not intended to apply.


 


(a)           A
reference to:


 


(1)           legislation
(including subordinate legislation) is to that legislation as amended,
re-enacted or replaced, and includes any subordinate legislation issued under
it;


 


(2)           a
document or agreement, or a provision of a document or agreement, is to that
document, agreement or provision as amended, supplemented, replaced or novated;


 


(3)           a
party to this agreement or to any other document or agreement includes a
permitted substitute or a permitted assign of that party;


 


(4)           a
person includes any type of entity or body of persons, whether or not it is
incorporated or has a separate legal identity, and any executor, administrator
or successor in law of the person;


 


(5)           anything
(including a right, obligation or concept) includes each part of it; and


 


(6)           a date
or time means to that date or time in Sydney.


 


(b)           A
singular word includes the plural, and vice versa.


 


(c)           A word
which suggests one gender includes the other genders.


 


(d)           If a
word is defined, another part of speech has a corresponding meaning.


 


(e)           If an
example is given of anything (including a right, obligation or concept), such
as by saying it includes something else, the example does not limit the scope
of that thing.


 


(f)            The
word “agreement”
includes an undertaking or other binding arrangement or understanding, whether
or not in writing.


 


(g)           The
words “Court”,
“subsidiary”,
“holding
company” and “related body corporate” have the same
meanings as in the Corporations Act.


 


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Schedule 2 – Key
Terms of the Securities


 


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Schedule 3 – Managing
Claims


 


1.             ANZ Entitled to Defend or
Institute Proceedings


 


Subject to clause 4 of this schedule, ANZ may
defend or institute in the name of an Indemnified Party legal or other
proceedings concerning an Indemnified Claim and conduct the same under the sole
management and control of ANZ with absolute discretion as to the conduct of
those proceedings including any decision to settle, compromise or consent to
the entry of any judgement in relation to the Indemnified Claim the subject of
those proceedings provided that:


 


(a)           ANZ
must consult with and keep the relevant Indemnified Party informed concerning
the progress of that defence or of those legal or other proceedings and must
take account of the views of the relevant Indemnified Party so far as is
reasonably practicable and must not take any steps which it would be reasonable
to expect would damage the reputation of the relevant Indemnified Party without
the prior written consent of the relevant Indemnified Party (such consent not
to be unreasonably withheld or delayed);


 


(b)           no
admission of liability on the part of the Indemnified Party in connection with
the Indemnified Claim may take place without the appropriate Indemnified
Party’s prior written consent, such consent not to be unreasonably withheld or
delayed; and


 


(c)           the
appropriate Indemnified Party has:


 


(1)           the
right at any time to; and


 


(2)           must,
if it refuses to give its prior written consent under clause 1(a) or 1(b);


 


re-assume the defence of any Indemnified
Claim assumed by ANZ or any other legal or other proceedings instituted by ANZ
in the name of the Indemnified Party in respect of an Indemnified Claim.


 


2.             Separate Representation


 


Notwithstanding clause 1, where ANZ has
conduct of the proceedings relating to an Indemnified Claim in the name of an
Indemnified Party, that Indemnified Party may engage its own legal counsel but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless:


 


(a)           ANZ
and the Indemnified Party mutually agree to the contrary;


 


(b)           the
Indemnified Party reasonably concludes that there are significant legal
defences available to it that are different from, or in addition to, those
available to ANZ; or


 


(c)           the
named parties in any such proceeding (including any impleaded parties) include
both ANZ and the Indemnified Party and


 


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representation of both parties by the same
counsel would be inappropriate due to actual differing interests between them.


 


3.             Obligations of Indemnified
Parties


 


The Indemnified Parties must:


 


(a)           take
such reasonable action as ANZ requests to avoid, dispute, resist, appeal, compromise
or defend any Indemnified Claim in respect of it;


 


(b)           not
settle or compromise any Indemnified Claim without the prior written consent of
ANZ;


 


(c)           render
all reasonable assistance and co-operation to ANZ in the conduct of any legal
or other proceedings relating to the Indemnified Claim including giving ANZ any
documents in its possession or within its control and signing all documents,
authorities and directions and making available its employees at such time and
for such periods as ANZ may reasonably require in relation to that proceeding;
and


 


(d)           do
anything reasonably necessary or desirable to ensure that ANZ is subrogated to
and enjoys the benefit of the rights of the Indemnified Parties in relation to
an Indemnified Claim including signing documents to assign choses in action.


 


4.             Right to Assume Control of
Proceedings


 


If an Indemnified Party re-assumes the
defence of an Indemnified Claim or any other legal or other proceedings
instituted by ANZ in the name of the Indemnified Party in respect of an
Indemnified Claim under clause 1(c) of this schedule:


 


(a)           it
will have the right to conduct the same under its sole management and control
and will have absolute discretion with regards to the conduct of those
proceedings including any decision to settle, compromise or consent to the
entry of any judgement in relation to any Claims that are the subject of those
proceedings, but in doing so it will consult with and take account of the views
of ANZ so far as is reasonably possible; and


 


(b)           ANZ
will not be bound by the terms of any settlement or compromise and any
indemnity given by ANZ under
clause 10 will not apply in respect of any Claims that are the subject of those
proceedings.


 


5.             Conduct of Proceedings


 


An Indemnified Party is under no obligation
under clause 3 of this schedule unless at the time ANZ requests that
Indemnified Party to take


 


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any action, ANZ agrees to indemnify that
Indemnified Party against all costs, expenses and charged incurred by or
awarded against that Indemnified Party in taking the action required, as and
when they fall due, including legal costs and disbursements of its lawyers on a
full indemnity basis.


 


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