EXHIBIT 1.1
▇▇▇▇▇▇ AUSTRALIA FUNDING LIMITED
$150,000,000
5.25% NOTES DUE 2013
GUARANTEED BY ▇▇▇▇▇▇ PLC
UNDERWRITING AGREEMENT
----------------------
April 28, 2003
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇ Australia Funding Limited, a limited company
incorporated under the laws of Australia (the "Company"), proposes to issue and
sell $150,000,000 aggregate principal amount of its 5.25% Notes due 2013 (the
"Securities"). The Securities will be issued pursuant to an Indenture dated as
of March 18, 2003 (the "Indenture") between the Company, ▇▇▇▇▇▇ PLC, a public
limited company incorporated under the laws of England and Wales (the
"Guarantor"), and The Bank of New York, as trustee (the "Trustee"), the form of
which has been filed as an exhibit to the Registration Statement (as defined
below). The Securities will be guaranteed on a senior unsecured basis by the
Guarantor (the "Guarantees"). The Company hereby confirms its agreement with
▇▇▇▇▇▇ Brothers Inc. ("LBI") and ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇.▇. ▇▇▇▇▇▇")
(the "Underwriters") concerning the purchase of the Securities from the Company
by the Underwriters.
1. Representations, Warranties and Agreements of the Company and the
Guarantor. The Company (as to itself) and the Guarantor (as to the Company and
itself) jointly and severally represent, warrant and agree that:
(a) The Guarantor and the Company meet the requirements for the
use of Form F-3 under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated thereunder
(the "Rules and Regulations") by the Securities and Exchange Commission
(the "Commission"). A registration statement on Form F-3 (File No.
333-98517) with respect to the Securities and the Guarantees has been
filed with the Commission and has become effective under the Securities
Act. The Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). Copies of the
Registration Statement and the amendments to such Registration
Statement have been delivered by the Company to the Underwriters. As
used in this Agreement, (i) the "Registration Statement" means such
registration statement on Form F-3 (File No. 333-98517) when it became
effective under the Securities Act, and as from time to time amended or
supplemented thereafter, including the incorporation by reference of
certain documents therein and in the Prospectus (as defined below) (or
if any post-effective amendment to such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the time the most recent such amendment has been declared
effective by the Commission); (ii) "Effective Time" means the date and
time as of which such Registration Statement was declared effective by
the Commission; (iii) "Effective Date" means the date of the Effective
Time; (iv) the "Basic Prospectus" means the prospectus (including all
documents incorporated therein by reference) included in the
Registration Statement; and (v) the "Prospectus" means the Basic
Prospectus together with all documents incorporated by reference
therein and any amendments or supplements thereto (including the
Prospectus Supplement dated April 28, 2003 (the "Prospectus
Supplement")) relating to the Securities, as filed with the Commission
pursuant to paragraph (b) of Rule 424 of the Rules and Regulations. Any
reference in this Agreement to amending or supplementing the Prospectus
shall be deemed to include the filing of materials incorporated by
reference, if any, in the Prospectus after the Closing Date (as defined
herein) and any reference in this Agreement to any amendment or
supplement to the Prospectus shall be deemed to include any such
materials incorporated by reference in the Prospectus after the Closing
Date (as defined herein). Any reference in this Agreement to any
amendment to the Registration Statement shall be deemed to include any
annual report of the Guarantor filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Closing Date that
is incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the use of
the Prospectus.
(b) The Registration Statement and the Prospectus conform, and
will conform as of the Closing Date and at all times during any period
during which a prospectus relating to the Securities is required to be
delivered under the Securities Act, in all material respects to the
requirements of the Securities Act, the Trust Indenture Act, and the
rules and regulations of the Commission
2
under such acts; and the Registration Statement and the Prospectus do
not, and will not as of the Closing Date and at all times during any
period during which a prospectus relating to the Securities is required
to be delivered under the Securities Act, contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company and the Guarantor make
no representation or warranty as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company or the Guarantor by the
Underwriters specifically for inclusion therein; and on the Effective
Date and on the Closing Date, the Indenture conforms or will conform in
all material respects to the requirements of the Trust Indenture Act
and the applicable rules and regulations thereunder.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder, and none of such documents contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) The Guarantor and each of its subsidiaries (as defined in
Section 15) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged,
except where failure to so qualify or have such power and authority
would not have a material adverse effect on the consolidated financial
position, results of operations, or business of the Guarantor and its
subsidiaries, taken as a whole ("Material Adverse Effect"). The Company
has conducted no activities other than in connection with issuing the
Securities and additional 5.25% Notes due 2013 and loaning the proceeds
to the Guarantor or its subsidiaries;
3
(e) The statements in the Prospectus under the heading
"Description of Notes," insofar as such statements constitute a summary
of certain provisions of the Indenture and the Securities, are accurate
in all material respects. The Securities have been duly and validly
authorized by the Company and, when duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as
provided herein, will be duly and validly issued and outstanding and
will constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally, and to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity)
(collectively, the "Enforceability Exceptions"); and the Guarantees
have been duly and validly authorized by the Guarantor and when the
Guarantees have been duly executed, authenticated, issued and delivered
as provided in the Indenture, as provided herein, will be duly and
validly issued and outstanding and will constitute valid and legally
binding obligations of the Guarantor entitled to the benefits of the
Indenture and enforceable against the Guarantor in accordance with
their terms, subject to the Enforceability Exceptions.
(f) The Indenture has been duly qualified under the Trust
Indenture Act; further, the Indenture has been duly authorized by each
of the Company and the Guarantor and has been duly executed and
delivered in accordance with its terms by each of the Company and the
Guarantor, and, assuming its due execution and delivery by the Trustee,
constitutes a valid and legally binding agreement of each of the
Company and the Guarantor enforceable against each of the Company and
the Guarantor in accordance with its terms, subject to the
Enforceability Exceptions.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(h) The execution, delivery and performance of this Agreement and
the Indenture by the Company and the Guarantor and the consummation of
the transactions contemplated hereby and thereby and the execution,
authentication, issuance and delivery of the Securities and the
Guarantees will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Guarantor or any of its subsidiaries is a
party or by which the Guarantor or any of its subsidiaries is bound or
to which any of the properties or assets of the Guarantor or any of its
subsidiaries is subject (except for such conflicts, breaches,
violations and defaults that would not result in a Material Adverse
Effect), nor will such actions result in any violation of the
provisions of the charter or by-laws or similar organizational
documents of the Guarantor or any of its subsidiaries or, to the best
of the Guarantor's knowledge, any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Guarantor or any of its subsidiaries or any of
their
4
properties or assets; and except for (i) the registration of the
Securities and the Guarantees under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters and (ii) such action as may be required
to list the Securities on the New York Stock Exchange, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the Indenture
by the Company and the Guarantor and the consummation of the
transactions contemplated hereby and thereby and the issuance,
authentication, sale and delivery of the Securities or for the Company
to effect interest payments on any Securities.
(i) Neither the Guarantor nor any of its subsidiaries has
sustained, since the date of the latest financial statements included
or incorporated by reference in the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus (except for such
losses, interference, disputes, actions, orders or decrees that would
not result in a Material Adverse Effect) and, since such date, there
has not been any change in the capital stock (other than the issuance
of shares of capital stock upon the exercise of share options pursuant
to share option plans disclosed in documents incorporated by reference
in the Registration Statement and Prospectus) or consolidated long-term
debt of the Guarantor or any material adverse change, or any
development involving a prospective material adverse change, in the
general affairs, management, financial position or results of
operations of the Guarantor and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus.
(j) The financial statements (including the related notes and
supporting schedules) of the Guarantor filed as part of the
Registration Statement or included or incorporated by reference in the
Prospectus present fairly the financial condition and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, subject to, in the case of financial
statements for interim periods, normal year-end adjustments, and have
been prepared in conformity with generally accepted accounting
principles in the United Kingdom ("U.K. GAAP"), applied on a consistent
basis throughout the periods involved except as stated therein. The
footnotes to the aforementioned financial statements (except in the
case of interim financial statements) contain a reconciliation of net
income, shareholders' equity and cash flows presented under U.K. GAAP,
with substantially similar information as would be presented in
financial statements that comply with U.S. generally accepted
accounting principles ("U.S. GAAP"). The selected audited consolidated
financial data, if any, included in the Registration Statement and the
Prospectus has been accurately extracted from the annual audited
consolidated financial statements included therein or from the
Guarantor's audited consolidated accounts, as appropriate.
5
(k) Ernst & Young, who have certified certain financial statements
of the Guarantor, whose report appears in the Prospectus or is
incorporated by reference therein and who have delivered the initial
letter referred to in Section 6(e) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(l) The Guarantor and its subsidiaries, taken as a whole, carry,
or are covered by, insurance in such amounts and covering such risks as
is appropriate for the conduct of their respective businesses and in
light of the value of their respective properties.
(m) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Guarantor or any of
its subsidiaries is a party or of which any property or asset of the
Guarantor or any of its subsidiaries is the subject which are
reasonably likely to have a Material Adverse Effect; and to the best of
the Guarantor's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(n) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations.
(o) No labor disturbance by the employees of the Guarantor exists
or, to the knowledge of the Guarantor, is imminent which would have a
Material Adverse Effect.
(p) The Guarantor and its subsidiaries are in compliance with all
applicable existing federal, state, local and foreign laws and
regulations relating to protection of human health or the environment
or imposing liability or standards of conduct concerning any Hazardous
Material (as hereinafter defined) ("Environmental Laws"), except where
such noncompliance with Environmental Laws would not, individually or
in the aggregate, have a Material Adverse Effect. The term "Hazardous
Material" means (1) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (2) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (3) any petroleum or
petroleum product, (4) any polychlorinated biphenyl and (5) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the meaning of
any other Environmental Law.
6
(q) The Guarantor and each of its subsidiaries have all licenses,
franchises, permits, authorizations, approvals and orders
(collectively, the "Authorizations") of and from all governmental and
regulatory officials and bodies that are necessary to own or lease and
operate their properties and conduct their businesses in the manner
described in the Registration Statement and the Prospectus except to
the extent that the failure to have such Authorizations would not have
a Material Adverse Effect.
(r) Other than as described or set forth in the Registration
Statement or the Prospectus as amended or supplemented, no stamp or
other issuance taxes or duties are payable by or on behalf of the
Underwriters in England or Australia in connection with the issue of
the Securities, the sale of the Securities to the Underwriters or the
consummation of the other transactions contemplated hereunder.
(s) Except as disclosed in the Registration Statement or the
Prospectus, under current laws and regulations (and interpretations
thereof) of the United Kingdom and any political subdivision thereof,
all interest, principal, premium, if any, and other payments due or
made on the Guarantees may be paid by the Guarantor to the holders
thereof in United States dollars and all such payments made to holders
thereof who are (i) not resident in the United Kingdom for tax
purposes, (ii) are not carrying on business in the United Kingdom
through a branch, agency or permanent establishment and (iii) have no
connection with the United Kingdom other than the ownership of the
Securities and the enforcement of their entitlements under the
Securities, will not be subject to income, withholding or other taxes
under laws and regulations of the United Kingdom or any political
subdivision or taxing authority thereof or therein and will otherwise
be free and clear of any other tax, duty, withholding or deduction in
the United Kingdom or any political subdivision or taxing authority
thereof or therein and without the necessity of obtaining any
governmental authorization in the United Kingdom or any political
subdivision or taxing authority thereof or therein.
(t) Except as disclosed in the Registration Statement or the
Prospectus, under current laws and regulations (and interpretations
thereof) of Australia and any political subdivision thereof, all
interest, principal, premium, if any, and other payments due or made on
the Securities may be paid by the Company to the holders thereof in
United States dollars and all such payments made to holders thereof who
are non-residents of Australia will not be subject to income,
withholding or other taxes under laws and regulations of Australia or
any political subdivision or taxing authority thereof or therein and
will otherwise be free and clear of any other tax, duty, withholding or
deduction in Australia or any political subdivision or taxing authority
thereof or therein and without the necessity of obtaining any
governmental authorization in Australia or any political subdivision or
taxing authority thereof or therein.
(u) Neither the Guarantor nor the Company is, and after giving
effect to the offering and sale of the Securities and the application
of the proceeds thereof as described in the Prospectus none of them
will be, required
7
to register as an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, "Investment
Company Act").
2. Purchase of the Securities.
(a) On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions set forth
herein, the Company agrees to issue and sell to each of the
Underwriters, severally and not jointly, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, the
principal amount of Securities set forth opposite the name of such
Underwriter on Schedule I hereto at a purchase price equal to 97.369%
of the principal amount thereof plus accrued and unpaid interest from
March 18, 2003.
(b) The Company shall not be obligated to deliver any of the
Securities except upon payment for all of the Securities to be
purchased as provided herein. Each of the Company and the Guarantor
acknowledges and agrees that the Underwriters may sell Securities to
any affiliate of an Underwriter and that any such affiliate may sell
Securities purchased by it to an Underwriter.
3. Delivery of and Payment for the Securities. Delivery by the Company
of the Securities to the Underwriters for the respective accounts of the
Underwriters and payment by the Underwriters therefor to an account specified at
least two business days in advance by the Company shall be made at the office of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ at CityPoint, One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
at 10:00 A.M., London time, on the fourth full New York business day following
the date of this Agreement or at such other date or place as shall be determined
by agreement between the Underwriters and the Company. This date and time are
sometimes referred to as the "Closing Date."
(a) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by or on behalf of the
Underwriters by wire transfer of same-day funds, or by such other means
as the parties hereto shall agree prior to the Closing Date, against
delivery of the Securities in the form of one or more permanent global
securities in registered form (the "Global Security") to the Trustee as
custodian for The Depository Trust Company ("DTC"). Beneficial
interests in the Securities will be shown on, and transfer thereof will
be effected only through, records maintained in book-entry form by DTC
and its participants, including, as applicable, Euroclear Bank
S.A./N.V., as operator of the Euroclear System, and Clearstream
Banking, societe anonyme. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Underwriters hereunder. The Company
agrees to make one or more global certificates evidencing the
Securities available for inspection by the Underwriters at such place
as is designated by the Underwriters at least 24 hours prior to the
Closing Date.
8
4. Offering by Underwriters
(a) It is understood that the Underwriters propose to offer the
Securities for sale to the public as set forth in the Prospectus.
(b) Each Underwriter represents and agrees that:
(i) it has not offered or sold and will not offer or sell any
Securities in the United Kingdom prior to the expiration of a period of
six months after the date of issue of the Securities except to persons
whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995
or the FSMA;
(ii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the FSMA) received by it in connection with the issue or
sale of any Securities in circumstances in which section 21(1) of the
FSMA does not apply to the Company or the Guarantor;
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom;
(iv) it has not made or invited, and will not make or invite,
an offer of the Securities for issue or sale in Australia (including an
offer or invitation which is received by a person in Australia);
(v) it has not distributed or published, and will not
distribute or publish, the Prospectus or any other offering material or
advertisement relating to the Securities in Australia;
(vi) in connection with the primary distribution of the
Securities, it will not sell the Securities to any person who is known
by such Underwriter to be an associate of the Guarantor or the Company
for the purposes of section 128F of the Income Tax Assessment ▇▇▇ ▇▇▇▇
of Australia; and
9
(vii) the Securities may not be offered, sold, transferred or
delivered in or from the Netherlands, as part of their initial
distribution or as part of any re-offering, and neither the Prospectus
nor any other document in respect of the offering may be distributed or
circulated in the Netherlands, other than to individuals or legal
entities which include, but are not limited to, banks, brokers,
dealers, institutional investors and undertakings with a treasury
department, who or which trade or invest in securities in the conduct
of a business or profession.
5. Further Agreements of the Company and the Guarantor. The Company and
the Guarantor jointly and severally agree:
(a) To prepare the Prospectus in a form approved by the
Underwriters and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on
the second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the Closing Date
which has not been approved by the Underwriters after reasonable notice
thereof; to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to either Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to file timely all documents required
to be filed by the Company or the Guarantor with the Commission
pursuant to Section 13(a), 13(c), or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities; to advise the Underwriters, promptly after they
receive notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the
Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of the Registration Statement or Prospectus or
suspending any such qualification, to use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible
its withdrawal, if issued.
(b) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriters in New York City such
number of the following documents as the Underwriters shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement and the
Indenture), (ii) the Basic Prospectus, the Prospectus (not later than
5:00 P.M., New York City time, of
10
the second business day following the date of execution and delivery of
this Agreement) and any amended or supplemented Prospectus (not later
than 5:00 P.M., New York City time, on the second business day
following the date of such amendment or supplement) and (iii) any
document incorporated by reference in the Prospectus (excluding
exhibits thereto); and, if at any time when a prospectus relating to
the Securities is required to be delivered under the Securities Act,
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would 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 when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, to
notify the Underwriters and, upon their request, to file such document
and to prepare and furnish without charge to each Underwriter as many
copies as the Underwriters may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement
or omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Securities at any time nine months or more after the date hereof, upon
the request of the Underwriters but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the
Securities Act.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Underwriters, be required by the Securities Act or requested by the
Commission.
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus pursuant to Rule 424 of the
Rules and Regulations, to furnish a copy thereof to the Underwriters
and counsel for the Underwriters and to obtain the consent of the
Underwriters to the filing which shall not be unreasonably withheld and
which consent shall not be required if the Company shall conclude in
good faith and upon advice of counsel that any such amendment or
supplement must be filed at a time prior to obtaining such consent.
(f) As soon as practicable after the Closing Date to make
generally available to the Company's security holders and to deliver to
the Underwriters an earnings statement of the Guarantor and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158).
11
(g) Prior to the termination of the offering of the Securities, to
furnish to the Underwriters copies of any annual reports, semi-annual
reports and current reports filed or furnished by the Guarantor with or
to the Commission on Form 20-F, 6-K, or such other similar forms as may
be designated by the Commission, and such other documents, reports and
information as shall be furnished by the Company to the Trustee or to
the holders of the Securities pursuant to the Indenture or the Exchange
Act or any rule or regulation of the Commission thereunder or to the
New York Stock Exchange.
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Underwriters may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the resale of
the Securities; provided, however, that in connection therewith neither
the Company nor the Guarantor shall be required to qualify as a foreign
corporation or, other than in the United States and New York State, to
file a general consent to service of process in any jurisdiction.
(i) For a period of 90 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition or purchase by any
person at any time in the future of) any debt securities issued or
guaranteed by the Guarantor or any of its subsidiaries (other than the
Securities), without the prior written consent of the Underwriters; it
being understood that the execution of this Agreement by the
Underwriters shall constitute consent, pursuant to the Underwriting
Agreement, dated March 12, 2003, by the Representatives (as defined in
such Underwriting Agreement) to this offering.
(j) To make an application for listing and to use all reasonable
endeavors to have the Securities listed on the New York Stock Exchange
before the date of the first interest payment date on the Securities
and to maintain such listing until none of the Securities is
outstanding; provided, however, that, if it is impracticable or unduly
burdensome to maintain such listing, the Company shall use all
reasonable endeavors to procure and maintain as aforesaid a listing of
or quotation for the Securities on such other stock exchange or
exchanges as it may (with the approval of the Underwriters (such
approval not to be unreasonably withheld or delayed)) decide or,
failing such decision, as the Underwriters may reasonably determine.
(k) To apply the net proceeds from the sale of the Securities
being sold by the Company as set forth in the Prospectus.
6. Expenses. Except as otherwise agreed by the parties hereto in
writing, the Company and the Guarantor jointly and severally agree to pay (a)
the costs incident to the authorization, issuance, sale and delivery of the
Securities and any taxes payable in that connection by the Guarantor or the
Company; (b) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement; (c) the costs of distributing
to the Underwriters the Registration Statement as originally filed and each
12
amendment thereto and any post-effective amendments thereof (including, in each
case, exhibits), the Prospectus and any amendment or supplement to the
Prospectus or any document incorporated by reference therein, all as provided in
this Agreement; (d) the costs of reproducing and distributing to the
Underwriters the Indenture and this Agreement; (e) any applicable listing or
other equivalent fees; (f) the fees and expenses of qualifying the Securities
under the securities laws of the several jurisdictions as provided in Section
5(h) (including related fees and expenses of counsel to the Underwriters); (g)
any fees charged by securities rating services for rating the Securities; (h)
all fees and expenses (including reasonable fees and disbursements of counsel)
of the Trustee under the Indenture; (i) the fees and expenses incurred by the
Company in connection with any "roadshow" presentations to investors, and (j)
all other costs and expenses incident to the performance of the obligations of
the Company and the Guarantor under the Indenture and this Agreement.
7. Conditions of Underwriters' Obligations. The respective obligations
of the Underwriters hereunder are subject to the accuracy, when made and on the
Closing Date, of the representations and warranties of the Company and the
Guarantor contained herein, to the performance by the Company and the Guarantor
of their respective obligations hereunder, and to each of the following
additional terms and conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the Rules and Regulations and the Indenture shall
have been qualified under the Trust Indenture Act; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with to the reasonable satisfaction of the Underwriters.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement
or the Prospectus contains any untrue statement of a fact which, in the
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, is
material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is
necessary to made the statements therein not misleading and the Company
and the Guarantor shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass
upon such matters.
(c) Weil, Gotshal & ▇▇▇▇▇▇, as U.S. and U.K. counsel to the
Company and the Guarantor, shall have furnished to the Underwriters one
or more written opinions, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Underwriters
and substantially in the form set out below:
(i) The Registration Statement was declared effective under
the Securities Act and the Indenture was qualified under the Trust
Indenture Act as of 10:30 am Eastern time on January 27, 2003 (the
"Effective Date"), the Prospectus Supplement was filed with the
Commission pursuant to Rule 424(b)(2) on April ___, 2003 and we
are not aware of any stop order suspending the effectiveness of
the
13
Registration Statement, to our knowledge, no proceeding therefor
has been initiated or overtly threatened by the Commission.
(ii) The Registration Statement, as of the Effective Date, and
the Prospectus, as of its date (except for the financial
statements and the notes and other financial and accounting data
contained therein, as to which we express no opinion), complied as
to form in all material respects with the requirements of the
Securities Act and the rules and regulations thereunder; the
documents incorporated by reference in the Prospectus (other than
the financial statements and related schedules therein, as to
which we express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and the Indenture conforms in all
material respects to the requirements of the Trust Indenture Act
and the applicable rules and regulations thereunder. We express no
opinion in this paragraph as to that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee.
(iii) Neither the Guarantor nor the Company is, and after
giving effect to the offering and sale of the Securities, neither
of the Guarantor nor the Company will be, required to register as
an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(iv) The statements contained in the Basic Prospectus under
the caption "Tax Considerations--US Taxation" and in the
Prospectus under the caption "Tax Considerations--US
Taxation--Additional Considerations," insofar as they purport to
describe federal statutes, rules and regulations, fairly summarize
the matters discussed therein in all material respects.
(v) The statements made in the Basic Prospectus under the
caption "Description of Debt Securities and Guarantees" and in the
Prospectus under the caption "Description of Notes," insofar as
they purport to constitute summaries of the terms of the
Securities and the Guarantees, fairly summarize the information
called for with respect to the terms of the Securities and the
Guarantees in all material respects.
(vi) The Indenture has been duly qualified under the Trust
Indenture Act and delivered by the Company and the Guarantor and
(assuming the due authorization, execution and delivery thereof by
the Trustee) constitutes a legal, valid and binding obligation of
the Company and the Guarantor, enforceable against each of the
Company and the Guarantor in accordance with its terms, in each
case subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
14
(vii) The Securities and Guarantees, when executed and
authenticated in accordance with the provisions of the Indenture,
will be entitled to the benefits of the Indenture and will be the
legal, valid and binding obligations of the Company and the
Guarantor, respectively, enforceable against the Company and the
Guarantor in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(viii) The execution and delivery by the Company and the
Guarantor of, and the compliance by each of them with the
respective obligations under, the Indenture and the Underwriting
Agreement and the execution, authentication, issuance and delivery
of the Securities and the Guarantees do not and will not conflict
with or violate any New York or United States federal law or
regulation (other than federal and state securities or blue sky
laws, as to which we express no opinion in this paragraph), except
for such conflicts or violations which would not have a Material
Adverse Effect.
(ix) No consent, approval, waiver, license or authorization or
other action by or filing with any New York or U.S. federal
governmental authority is required in connection with the
execution and delivery by the Company and the Guarantor of the
Underwriting Agreement and the Indenture, the consummation by the
Company and the Guarantor of the transactions contemplated thereby
or the performance by the Company and the Guarantor of their
obligations thereunder and the execution, authentication, issuance
and delivery of the Securities and the Guarantees, except filings
and other actions required pursuant to the Trust Indenture Act,
the Securities Act and/or the Exchange Act and the rules and
regulations thereunder, state securities or blue sky laws, as to
which we express no opinion in this paragraph, and those already
obtained.
(x) The Guarantor is a company duly incorporated and validly
existing under the laws of England and Wales.
(xi) Each of the Indenture, the Guarantees and the
Underwriting Agreement has been duly authorized, executed and
delivered by the Guarantor. The Notation of Guarantee (the
"Notation") attached to each of the Securities has been duly
authorized, executed and delivered by the Guarantor.
(xii) The execution and delivery of the Indenture, the
Guarantees, the Underwriting Agreement and the Notation by the
Guarantor and the performance of the terms and provisions thereof
and
15
the execution, issuance and delivery of the Securities (x) do
not, and will not, conflict with or result in a breach of any of
the current terms or provisions of any law of England and Wales
and (y) do not, and will not, result in any violations of the
provisions of the Memorandum of Association or the Articles of
Association of the Guarantor, except in the case of clause (x)
above for such conflicts or breaches which would not have a
Material Adverse Effect.
(xiii) Under the laws of England and Wales currently in force
and under current practice of the English courts, we know of no
reason why the English courts would not accept, and give effect
to, the choice of law provisions of the Indenture, the Guarantees
and the Underwriting Agreement and permit any Underwriter to
commence proceedings (subject to giving an undertaking as to costs
if required) in the English courts of competent jurisdiction
against the Guarantor in connection with the Indenture, the
Guarantees and the Underwriting Agreement and such English courts
would accept jurisdiction over any such proceedings unless
proceedings in respect of the same subject matter were pending.
(xiv) The statements contained in the Prospectus under the
caption "Tax Considerations - UK Taxation," insofar as they
purport to describe UK law and practice, constitute a fair summary
thereof.
(xv) Other than as described or set forth in the Registration
Statement or the Prospectus as amended or supplemented and subject
to the assumptions that there is no UK register with respect to
the Securities and that the Securities do not carry interest at a
rate which exceeds a reasonable commercial return on their nominal
amount, no UK stamp or other issuance taxes or duties are payable
by or on behalf of the Underwriters in connection with the issue
of the Securities, the sale of the Securities to the Underwriters
or the consummation of the other transactions contemplated under
the Underwriting Agreement.
(xvi) We express no views on any other matters relating to
United Kingdom taxation.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of
America, the laws of the State of New York and the laws of England and
Wales. Such counsel shall also have furnished to the Underwriters a
written statement, addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Underwriters,
substantially to the effect that such counsel has participated in
conferences with directors, officers and other representatives of the
Guarantor, representatives of the independent public accountants for
the Guarantor, representatives of the Underwriters and representatives
of counsel for the Underwriters, at which conferences the contents of
the Registration Statement and the Prospectus and related matters were
discussed, and, although such counsel has not independently verified
and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration
16
Statement and Prospectus and did not prepare or participate in the
preparation of the documents incorporated by reference in the
Registration Statement or Prospectus, no facts have come to such
counsel's attention which lead it to believe that any part of the
Registration Statement (including the documents incorporated by
reference in the Registration Statement), on the date such part became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements contained therein not misleading or that the
Prospectus (including the documents incorporated by reference therein),
on the date hereof or the date thereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel shall
express no view with respect to the financial statements and related
notes, the financial statement schedules and the other financial,
statistical and accounting data included or incorporated by reference
in the Registration Statement or Prospectus or with respect to Exhibit
25.1 to the Registration Statement); and they do not know of any
contracts or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or the Rules and Regulations which have not been
described or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Legal Director of the Guarantor, shall have
furnished the Underwriters his written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings
pending to which the Guarantor or any of its subsidiaries is a
party or of which any property or asset of the Guarantor or any of
its subsidiaries is the subject which are reasonably likely to
have a Material Adverse Effect; and, to such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(ii) To such counsel's knowledge, the execution and delivery
of this Agreement and the Indenture by the Company and the
Guarantor and the performance of the terms and provisions hereof
and thereof and the execution, authentication, issuance and
delivery of the Securities and the execution and delivery of the
Guarantees do not, and will not, conflict with or result in a
breach of any of the terms or provisions of (x) the organizational
documents of the Guarantor's subsidiaries or (y) any indenture,
mortgage, deed of trust, loan agreement or other similar agreement
or instrument known to such counsel to which the Guarantor or any
of its subsidiaries is a party or by which the Guarantor or any of
its subsidiaries is bound, or to which any of the properties or
assets of the Guarantor or any of its
17
subsidiaries is subject, except in the case of clause (y) above
for such conflicts or breaches which would not have a Material
Adverse Effect; and the Guarantor has obtained (such, if any, as
are required) any authorizations, approvals, registrations,
qualifications and consents from all governmental authorities in
the United Kingdom which are necessary under the laws and
regulations of the United Kingdom for the execution and delivery
by the Company and the Guarantor of this Agreement and the
Indenture and the performance of the terms and provisions hereof
and thereof and the execution, authentication, issuance and
delivery of the Securities and the execution and delivery of the
Guarantees.
(e) With respect to the letter of Ernst & Young delivered to the
Underwriters concurrently with the execution of this Agreement (the
"initial letter"), the Guarantor shall have furnished to the
Underwriters a letter (the "bring-down letter") of such accountants,
addressed to the Underwriters and dated the Closing Date (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the initial
letter.
(f) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Australian counsel to the
Company, shall have furnished to the Underwriters its written opinion,
addressed to the Underwriters and dated the Closing Date, substantially
in the form of Appendix A hereto.
(g) The Securities shall have been duly executed and delivered by
the Company and duly authenticated by the Trustee; and the Guarantees
shall have been duly executed and delivered by the Guarantor.
(h) The Trustee shall have furnished to the Underwriters an
Officer's Certificate, dated the Closing Date, stating that: (i) the
Indenture has been duly authorized, executed and delivered by the
Trustee and constitutes a valid and legally binding obligation of the
Trustee enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and to general
principles of equity; (ii) the Trustee is a New York banking
corporation duly organized and existing under the laws of the State of
New York with full power and authority to execute, deliver and perform
its obligations under the Indenture; (iii) the Securities issued on the
date hereof having the Guarantees duly executed and delivered by the
Guarantor endorsed thereon have been duly authenticated by the Trustee
in accordance with the terms of the Indenture; and (iv) the Form T-1 of
the Trustee filed with respect
18
to the Indenture complies as to form with the requirements of the Trust
Indenture Act of 1939, as amended, and the rules and regulations
thereunder.
(i) The Guarantor shall have furnished to the Underwriters a
certificate, dated the Closing Date, signed by any two of its Chief
Executive, its Finance Director or Legal Director, stating that the
representations, warranties and agreements of the Guarantor and the
Company in Section 1 are true and correct as of the Closing Date, as if
made on the Closing Date; the Guarantor and the Company have complied
with all their agreements contained herein; and the conditions set
forth in Section 7 have been fulfilled.
(j) Neither the Guarantor nor any of its subsidiaries shall have
sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus (i) any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since such
date there shall not have been any change in the capital stock (other
than the issuance of shares of capital stock upon the exercise of share
options pursuant to share option plans disclosed in documents
incorporated by reference in the Registration Statement and Prospectus)
or consolidated long-term debt of the Guarantor or any change, or any
development involving a prospective change, in the general affairs,
management, financial position or results of operations of the
Guarantor and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Underwriters, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
(k) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the
Securities or any debt securities issued or guaranteed by the Guarantor
by any "nationally recognized statistical rating organization," as that
term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities or any debt
securities issued or guaranteed by the Guarantor.
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the London Stock
Exchange or in the over-the-counter market, or trading in any
securities of the Guarantor on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission or
the Financial Services Authority, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Australia, the United
Kingdom, U.S. federal or state authorities, (iii) the United States or
the United Kingdom shall have become engaged in hostilities, there
shall have
19
been an escalation in hostilities involving the United States or the
United Kingdom or there shall have been a declaration of a national
emergency or war by the United States or the United Kingdom or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
or the United Kingdom shall be such) as to make it, in the judgment of
the Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of Securities on the terms and in the
manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Guarantor and the Company jointly and severally agree to
indemnify and hold harmless each Underwriter, its officers and
employees and each person, if any, who controls any Underwriter within
the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Securities), to which that
Underwriter, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or in any
amendment or supplement thereto or (ii) the omission or alleged
omission to state in the Registration Statement or the Prospectus, or
in any amendment or supplement thereto, any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and each such officer,
employee and controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however,
that neither the Guarantor nor the Company shall be liable in any such
case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in the
Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with the written
information furnished to the Guarantor or the Company through the
Underwriters by or on behalf of any Underwriter specifically for
inclusion therein and described in Section 8(e). The foregoing
indemnity agreement is in addition to any liability which the Company
and the Guarantor may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Guarantor and the Company, their officers and
20
employees, each of their directors and each person, if any, who
controls the Guarantor or the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the
Company, the Guarantor or any such officer, employee, director or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state in the Registration
Statement or the Prospectus, or in any amendment or supplement thereto,
any material fact required to be stated therein, or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the written
information furnished to the Company through the Underwriters by or on
behalf of that Underwriter specifically for inclusion therein and
described in Section 8(e), and shall reimburse the Guarantor and the
Company and any such officer, employee, director or controlling person
for any legal or other expenses reasonably incurred by the Guarantor
and the Company or any such officer, employee, director or controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to
the Guarantor and the Company or any such officer, employee, director
or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel approved by the
indemnified party, such approval not to be unreasonably withheld;
provided, however, that any indemnified party may employ separate
counsel in any such claim or action of which the indemnifying party has
assumed the defense and participate in the defense thereof, but the
fees and expenses of such separate counsel shall be at the expense of
such indemnified party except as provided below. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action and reasonable approval by the
indemnified party of counsel, the indemnifying party shall not be
liable to the
21
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Underwriters shall have the right to employ counsel
to represent jointly the Underwriters and their respective officers,
employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by
the Underwriters against the Company under this Section 8, if, in the
reasonable judgment of the Underwriters, it is advisable for those
Underwriters, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company (it
being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel in each
relevant jurisdiction approved by the Underwriters representing the
indemnified parties who are party to such claim). No indemnifying party
shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but
if settled with its written consent or if there be a final judgment of
the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof (collectively, "Losses"), (i)
in such proportion as shall be appropriate to reflect the relative
benefits received by the
22
Guarantor and the Company on the one hand and the Underwriters on the
other from the offering of the Securities 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 Guarantor and the Company on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations. The relative
benefits received by the Guarantor and the Company on the one hand and
the Underwriters on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Guarantor and the Company on the
one hand, and the total underwriting discounts and commissions received
by the Underwriters with respect to the Securities purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the
offering of the Securities under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Guarantor,
the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Guarantor, the Company and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 8(d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public was offered
to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any 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 Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section
8(d) are several in proportion to their respective underwriting
obligations and not joint. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against another party or parties under this Section 8(d),
notify such party or parties from whom contribution may be sought, but
the omission to so notify in writing such party or parties shall not
relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise under
this Section 8(d) except where such omission to so notify shall
materially prejudice such party or parties from whom contribution may
be sought.
(e) The Underwriters severally confirm that the statements in the
Prospectus which constitute the only information furnished in writing
to the Company and the Guarantor by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the
Prospectus are as set forth in the letter addressed to ▇▇▇▇▇▇ PLC and
dated April 28, 2003 and that such statements are correct.
9. Defaulting Underwriters. If, on the Closing Date, either Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-
23
defaulting Underwriter shall be obligated to purchase the Securities which the
defaulting Underwriter agreed but failed to purchase on the Closing Date;
provided, however, that the remaining non-defaulting Underwriter shall not be
obligated to purchase any such Securities on the Closing Date if the total
principal amount of such Securities which the defaulting Underwriter agreed but
failed to purchase on such date exceeds 9.09% of the total principal amount of
Securities to be purchased on the Closing Date, and the remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the principal
amount of Securities which it agreed to purchase on the Closing Date pursuant to
the terms of Section 4. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriter, or those other underwriters satisfactory to such
non-defaulting Underwriter who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Securities to be purchased on the Closing Date. If the remaining
non-defaulting Underwriter or other underwriters satisfactory to such
non-defaulting Underwriter do not elect to purchase the Securities which the
defaulting Underwriter agreed but failed to purchase on the Closing Date, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriter or the Company, except that the Company and the Guarantor will
continue to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule I hereto who, pursuant to this Section 9, purchases
securities that a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Guarantor for damages caused by its
default. If other underwriters are obligated or agree to purchase the Securities
of a defaulting or withdrawing Underwriter, the non-defaulting Underwriter, the
Guarantor or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Guarantor or counsel for such non-defaulting Underwriter may be necessary in
the Registration Statement, the Prospectus or in any other document or
arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by notice given to and received by the Company and the Guarantor
prior to delivery of and payment for the Securities if, prior to that time, any
of the events described in Sections 7(j), 7(k) or 7(l) shall have occurred or if
the Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Company shall
fail to tender the Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or (b) the Underwriters shall decline to
purchase the Securities because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied or because of any
termination pursuant to Section 10 hereof permitted under this Agreement, the
Company and the Guarantor jointly and severally agree to reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other reasonable out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of the Securities, and
upon demand the Company and the Guarantor jointly and severally agree to pay the
full amount thereof to the Underwriters. Notwithstanding the foregoing, if this
Agreement is terminated pursuant to Section 9 by reason of the default of one or
more Underwriters, neither the Company nor the Guarantor shall be under any
liability to any defaulting Underwriter except as provided in Section 6
24
hereof. In no event will the Company or the Guarantor be liable to any of the
Underwriters for damages on account of loss of anticipated profits.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to the Underwriters, c/▇ ▇▇▇▇▇▇
Brothers Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Fixed Income Syndicate (Fax: ▇▇▇-▇▇▇-▇▇▇▇) (with a copy to ▇▇▇▇▇▇
Brothers International (Europe), ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇, Attention: Debt Capital Markets, UK Corporates Group (Fax: 020
▇▇▇▇ ▇▇▇▇)) and ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: High Grade Syndicate Desk, 8th Floor (Fax:
▇▇▇-▇▇▇-▇▇▇▇; Telephone: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company or the Guarantor, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the
Guarantor set forth in the Registration Statement, Attention: Treasurer
(Fax: ▇▇▇-▇▇▇▇-▇▇▇▇).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Guarantor and the Company shall be entitled to act
and rely upon any request, consent, notice or agreement given or made by the
Underwriters.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Guarantor and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
and the Guarantor contained in this Agreement shall also be deemed to be for the
benefit of the officers and employees of each Underwriter and the person or
persons, if any, who control each Underwriter within the meaning of Section 15
of the Securities Act and (B) the indemnity agreement of the Underwriters
contained in Section 8(b) of this Agreement shall be deemed to be for the
benefit of directors, officers and employees of the Company and the Guarantor
and any person controlling the Company or the Guarantor within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section 13, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Guarantor and the Underwriters contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
25
15. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
17. Consent to Jurisdiction; Service of Process.
(a) EACH OF THE PARTIES HERETO CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF AND VENUE IN, (i) FEDERAL AND STATE COURTS LOCATED IN
THE BOROUGH OF MANHATTAN, CITY AND STATE OF NEW YORK, AND (ii) THE
COURTS OF ENGLAND, OVER ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT.
(b) Each of the Company and the Guarantor hereby appoints CT
Corporation, with an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Authorized Agent"), as its authorized agent upon whom
process may be served in any such legal suit, action or proceeding.
Such appointments shall be irrevocable. The Company and the Guarantor
further agree that service of process upon the Authorized Agent and
written notice of said service to the Company and the Guarantor shall
be deemed in every respect effective service of process upon the
Company and the Guarantor in any such legal suit, action or proceeding.
Nothing herein shall affect the right of any Underwriter or any person
controlling any Underwriter to serve process in any other manner
permitted by law. The provisions of this Section 17 are intended to be
effective upon the execution of this Agreement without any further
action by the Company or the Guarantor and the introduction of a true
copy of this Agreement into evidence shall be conclusive and final
evidence as to such matters.
18. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
26
If the foregoing correctly sets forth the agreement among the
Guarantor, the Company and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
Company:
▇▇▇▇▇▇ AUSTRALIA FUNDING LIMITED
By : /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Guarantor:
▇▇▇▇▇▇ PLC
By : /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Authorized Representative
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Vice President
SCHEDULE I
Underwriters Principal Amount
------------ ----------------
▇.▇. ▇▇▇▇▇▇ Securities Inc............ $ 75,000,000
▇▇▇▇▇▇ Brothers Inc................... $ 75,000,000
Total............................ $150,000,000
============
APPENDIX A
▇▇▇▇▇▇ Brothers Inc. The Bank of New York [ ] April 2003
745 7th Avenue ("TRUSTEE") ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Direct Line
▇.▇. ▇▇▇▇▇▇ Securities Inc. #▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
("UNDERWRITERS")
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
The Directors The Directors
▇▇▇▇▇▇ PLC ▇▇▇▇▇▇ Australia Funding Limited
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ TJH ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen
▇▇▇▇▇▇ AUSTRALIA FUNDING LIMITED (ACN 101 589 137) ("ISSUER") ISSUE OF
$150,000,000 GUARANTEED NOTES DUE 2013 ("NOTES") UNCONDITIONALLY AND IRREVOCABLY
GUARANTEED AS TO PAYMENT OF PRINCIPAL AND INTEREST BY ▇▇▇▇▇▇ PLC ("GUARANTOR")
We refer to the creation and issue of the Notes in respect of which we have
acted as legal advisors to the Issuer in New South Wales ("NSW") and the
Commonwealth of Australia ("AUSTRALIA") (together the "RELEVANT JURISDICTIONS").
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
This opinion relates only to the laws of the Relevant Jurisdictions and is given
on the basis that it will be construed in accordance with the laws of NSW. We
express no opinion about the laws of another jurisdiction or (except as
expressly provided in paragraph 4) factual matters. While we have provided
comments on the Underwriting Agreement and the Indenture (each as defined below)
at the request and in accordance with the instructions of Weil, Gotshal and
▇▇▇▇▇▇, we have restricted our review to matters arising out of the laws of the
Relevant Jurisdictions and, except as expressly stated in paragraph 4 below,
express no opinion regarding the efficacy or otherwise of specific provisions of
the Underwriting Agreement or the Indenture (each as defined below).
In addition, except as expressly stated below, it should be understood that we
have not been responsible for verifying the accuracy of the facts, or the
reasonableness of any statements of opinion, contained in the Registration
Statement or Prospectus (each as defined below), or that no material facts have
been omitted from either document. Furthermore, we express no opinion as to
whether the Registration Statement or Prospectus contains all the information
required by the laws of the United States of America or by the United States
Securities and Exchange Commission.
1 DOCUMENTS
We have examined copies (certified or otherwise identified to our
satisfaction) of the following documents relating to the Notes:
(a) the Registration Statement on Form F-3 dated 27 January 2003
("REGISTRATION STATEMENT");
(b) the Basic Prospectus dated 27 January 2003 ("BASIC PROSPECTUS");
(c) the Prospectus Supplement dated 28 April 2003 ("PROSPECTUS
SUPPLEMENT" together with the Basic Prospectus, the "PROSPECTUS");
(d) the Underwriting Agreement dated 28 April 2003 between the Issuer,
the Guarantor and the Underwriters ("UNDERWRITING AGREEMENT");
(e) the Indenture dated 18 March 2003 between the Issuer and the
Trustee ("INDENTURE");
(f) the constitution of the Issuer ("CONSTITUTION");
(g) an extract of the minutes evidencing the resolution of the board
of directors of the Issuer dated 17 January 2003 authorising the
signing, delivery and observance of obligations under, amongst
other documents, the Indenture; and
2
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
(h) an extract of the minutes evidencing the resolution of the board
of directors of the Issuer dated [ ] 2003 authorising the signing,
delivery and observance of obligations under the Documents.
In this opinion the expression "DOCUMENTS" means the Underwriting
Agreement, the Indenture and the Notes (including the Global Security
(as defined in the Indenture ("GLOBAL SECURITY")).
2 ASSUMPTIONS
We have assumed:
(a) the authenticity of all signatures, seals, duty stamps and
markings;
(b) the completeness, and conformity to originals, of all documents
submitted to us;
(c) that all authorisations specified above remain in full force and
effect;
(d) that the Documents have been or will be executed by duly
authorised signatories (in the case of the Notes either manually
or by facsimile signature) and delivered outside Australia in the
form which we have examined;
(e) that the Documents have been or will be duly authorised by the
parties to them (other than the Issuer) and constitute valid and
binding obligations of all the parties to them under all relevant
laws (including the laws of the State of New York, and the laws of
the Relevant Jurisdictions except in so far as the laws of the
Relevant Jurisdictions affect the obligations of the Issuer) and
that under the laws of the State of New York it would be construed
as conferring on the parties the same rights and obligations as
would be conferred on them were it to be expressly governed by the
law of the Relevant Jurisdictions;
(f) that all the provisions contained in the Documents have been
strictly complied with and that all distribution and selling
restrictions will be strictly complied with;
(g) that:
(i) the resolution of the board of directors was properly
passed in accordance with the Company's constitutional
documents (including that any meeting convened was properly
convened);
(ii) all directors who participated and voted were entitled to
do so;
3
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
(iii) the directors have properly performed their duties and all
provisions relating to the declaration of directors'
interests or the power of interested directors to vote were
duly observed,
but there is nothing in the searches referred to in paragraph 3 or
on the face of the extract of the minutes referred to in paragraph
1(g) that would lead us to believe otherwise;
(h) that, if an obligation is to be performed in a jurisdiction
outside Australia, its performance will not be contrary to an
official directive, impossible or illegal under the law of that
jurisdiction;
(i) that the obligations assumed by the Issuer under the Documents are
in its best interests and for the purposes of its business;
(j) that the Commissioner of Taxation has not given and will not give
a notice or direction under section 218 or section 255 of the
Income Tax Assessment ▇▇▇ ▇▇▇▇ of Australia ("ITAA") or section 74
of the Sales Tax Assessment ▇▇▇ ▇▇▇▇ or section 260-5 of the
Taxation ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, requiring the Issuer to deduct
from sums payable by it to a person under the Documents
(including, without limitation, the holder of a Note) an amount of
Australian tax payable by the payee;
(k) that the Issuer does not enter into any Document in the capacity
of a trustee of any trust or settlement;
(l) that no transaction in connection with the Documents constitutes
an insolvent transaction or an unfair loan within the meaning of
sections 588FA, 588FB, 588FC or 588FD respectively of the
Corporations Act; and
(m) that no party has contravened or will contravene Chapter 2E of the
Corporations Act by entering into any Document or a transaction in
connection with any Document.
We have not taken any steps to verify these assumptions. However, we
note that third parties dealing with the Issuer may, by virtue of
section 129 of the Corporations Act, assume:
(a) that the Constitution has been complied with; and
(b) that the directors of the Issuer properly perform their duties to
the Issuer,
unless they knew or suspected that the assumptions were incorrect.
4
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
3 SEARCHES
We have relied on an inspection of the public records (which are not
necessarily complete or up-to-date) of the Issuer on microfilm or in
extract which are available to the public at the offices of the
Australian Securities and Investments Commission in Sydney at 9.54am on
12 August 2002 and updated on 12 March 2003 at 9:14am and 29 April 2003
at 10:02am. We have not made any other searches.
4 OPINION
On the foregoing basis and subject to the qualifications set out below,
we are of the opinion that:
(a) the Issuer is incorporated and validly existing under the laws of
Australia and is capable of suing and being sued in its corporate
name;
(b) the Issuer has:
(i) the corporate power to enter into each Document to which it
is a party and to observe its obligations under them;
(ii) taken all corporate action required on its part to
authorise the execution, delivery and observance of the
Documents;
(c) the obligations of the Issuer under each Document are valid,
binding and (subject to the terms of the Document) enforceable
when:
(i) in the case of an agreement, duly executed by one of its
directors;
(ii) in the case of a deed, duly executed and delivered by a
director and secretary or two directors; or
(iii) in the case of the Global Security and the Notes, when
executed in facsimile by a person authorised under the
resolutions referred to in paragraph 1(g) and duly
authenticated, in accordance with their terms.
The expression "enforceable" means that the relevant obligations
are of a type that the courts in the Relevant Jurisdictions
enforce and does not mean that the obligations will necessarily be
enforced in all circumstances in accordance with their terms;
(d) the execution and delivery by or on behalf of the Issuer of the
Documents and the observance of its obligations under them will
not contravene:
5
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
(i) any law in force in the Relevant Jurisdictions applicable
to companies generally; and
(ii) its Constitution;
(e) no authorisation is necessary under the laws in force in the
Relevant Jurisdictions applicable to companies for the Issuer to
enter into the Documents, issue and sell the Notes and observe
obligations under them;
(f) under the circumstances of the offer and sale of the Notes in the
manner contemplated by the Documents:
(i) no ad valorem stamp duty is payable in the Relevant
Jurisdictions on the Documents or in connection with the
observance of obligations under them; and
(ii) there are no other issuance taxes payable in the Relevant
Jurisdictions solely as a result of the issue of the Notes;
(g) all payments to be made by the Issuer in respect of the Notes may
be made free and clear of Australian interest withholding tax,
provided that:
(i) the Issuer is a resident of Australia when it issues the
Notes and at the time interest (as defined in section
128A(1AB) of the ITAA) is paid;
(ii) the issue of the Notes satisfies the `public offer' test
set out in section 128F(3) of the ITAA. In this respect, we
consider that the public offer test will be satisfied if
the Notes are listed on the New York Stock Exchange and
offered for sale in the manner contemplated in the
Underwriting Agreement;
(iii) the issue of the Notes does not fail the `public offer'
test because of section 128F(5) of the ITAA (which provides
that the issue does not satisfy the public offer test if,
at the time of the issue, the Issuer knew, or had
reasonable grounds to suspect, that the Notes were being or
would later be acquired either directly or indirectly by an
associate (as defined in section 128F(9) of the ITAA) of
the Issuer, other than in the capacity of a dealer, manager
or underwriter in relation to the placement of the Notes);
and
(iv) at the time of the payment of interest (as defined in
section 128A(1AB) of the ITAA), the Issuer does not know or
have
6
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
reasonable grounds to suspect that the payee is an
associate (as defined in section 128F(9) of the ITAA)
of the Issuer;
(h) all payments to be made by the Issuer in respect of the Notes may
be made free from deductions under the Tax File Number provisions
and the Australian Business Number requirements of the ITAA and
the Taxation Administration Act 1953 provided that, in relation to
payments by the Issuer to residents of Australia, Tax File Numbers
or Australian Business Numbers (or exemptions) are supplied by the
persons to whom such payments are made;
(i) no party to the Documents (other than the Issuer) and no holder of
a Note will be taken to be resident, domiciled, or carrying on
business in the Relevant Jurisdictions by reason only of the
execution and observance of the Documents outside Australia or the
enforcement of the Documents or the holding of the Notes outside
Australia;
(j) each Document is in proper form for enforcement in the appropriate
courts of NSW and the appropriate federal courts of Australia,
subject to proof of the relevant provisions of the laws of the
State of New York;
(k) it is not necessary under the laws of the Relevant Jurisdictions
to provide a copy of a Document to a court or governmental agency
in order to ensure the legality, validity, enforceability or
admissibility in evidence of any Document;
(l) claims against the Issuer under each Document to which it is a
party will rank at least equally with the claims of all its other
unsecured and unsubordinated creditors (other than creditors
mandatorily preferred by law);
(m) the statements contained in the section of the Prospectus entitled
"Australian Taxation" with regard to the taxation laws of the
Relevant Jurisdictions fairly present such matters as at the date
of the Prospectus;
(n) the courts of NSW and the federal courts of Australia will give
effect to :
(i) the choice of the laws of the State of New York to govern
the Documents;
(ii) the submission to the jurisdiction of any United States
federal or state court located in the Borough of Manhattan
in the city and state of New York by the Issuer; and
(iii) the appointment by the Issuer of an agent for service of
process contained in the Documents;
7
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
(o) to enforce a conclusive and unsatisfied judgment which is
enforceable by execution in the State of New York and obtained in
relation to the Documents in a superior court of the State of New
York having jurisdiction to give that judgment, it is necessary
for the judgment creditor to bring separate proceedings in the
appropriate courts of NSW founded on the judgment and those courts
could reasonably be expected in the circumstances to give
conclusive effect to the judgment for the purpose of the
proceedings;
(p) the listing of the Notes on the New York Stock Exchange has been
duly authorised by the Issuer; and
(q) the execution by the parties of the Documents does not alter the
opinions contained in our letter to you dated 18 March 2003, those
opinions continuing to be subject to the assumptions and
qualifications set out in that letter.
5 QUALIFICATIONS
This opinion is subject to the following qualifications:
(a) the nature and enforcement of obligations may be affected by lapse
of time, failure to take action or laws (including, without
limitation, laws relating to bankruptcy, insolvency, liquidation,
receivership, administration, reorganisation and reconstruction)
and defences generally affecting creditors' rights;
(b) a creditor's rights may be affected by a specific court order
obtained under laws (including, without limitation, section 444F
and Part 5.3A Division 13 of the Corporations Act) and defences
generally affecting creditors' rights;
(c) the availability of certain equitable remedies (including, without
limitation, injunction and specific performance) is at the
discretion of a court in the Relevant Jurisdictions;
(d) an obligation to pay an amount may be unenforceable if the amount
is held to constitute a penalty;
(e) a provision that a statement, opinion, determination or other
matter is final and conclusive does not necessarily prevent
judicial enquiry into the merits of a claim by an aggrieved party;
(f) the laws of the Relevant Jurisdictions may require that
discretions are exercised reasonably and opinions are based on
reasonable grounds;
8
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
(g) the question whether a provision of a Document which is invalid or
unenforceable may be severed from other provisions is determined
at the discretion of a court in the Relevant Jurisdictions;
(h) an indemnity for legal costs may be unenforceable;
(i) we express no opinion as to:
(i) provisions precluding oral amendments or waivers;
(ii) the revenue consequences of transferring Notes in Australia
as this will depend, among other things, on the identity of
the transferor and transferee;
(iii) whether a judgment for a monetary amount would be given in
a currency other than Australian dollars, although recent
decisions of English Courts allowing judgments in a foreign
currency have been followed in the Courts of NSW; and
(iv) the date on which a conversion from foreign currency would
be made for the purpose of enforcing a judgment;
(j) the Banking (Foreign Exchange) Regulations and other regulations
in Australia restrict or prohibit payments, transactions and
dealings with assets having a prescribed connection with certain
countries or named individuals or entities subject to United
Nations sanctions or associated with terrorism;
(k) payments of interest on overdue amounts (other than amounts due on
the Notes) may be subject to interest withholding tax at the rate
of 10%;
(l) court proceedings may be stayed if the subject of the proceedings
is concurrently before a court;
(m) a currency indemnity contained in the Documents may be
unenforceable if it is contrary to public policy in the Relevant
Jurisdictions;
(n) in order to enforce a foreign judgment in the Relevant
Jurisdictions it may be necessary to establish that the judgment
is for a fixed or certain sum of money and is not in the nature of
a penalty or revenue debt and, if raised by the judgment debtor,
it may be necessary to establish that:
(i) the judgment debtor (or its duly appointed agent) received
actual notice of the proceedings in sufficient time to
contest the proceedings;
9
The Underwriters, Trustee and others [ ] April 2003
--------------------------------------------------------------------------------
(ii) the judgment was not obtained by fraud or duress or in a
manner contrary to natural justice or public policy in the
Relevant Jurisdiction;
(o) a court will not give effect to a choice of laws to govern the
Documents or a submission to the jurisdiction of certain courts if
to do so would be contrary to public policy in the Relevant
Jurisdictions;
(p) a document may not be admissible in court proceedings unless
applicable stamp duty has been paid; and
(q) a payment made under mistake may be liable to restitution.
6 BENEFIT
We hereby consent to the filing of this opinion as a schedule to the
Underwriting Agreement, and to the references to us under the headings
"Legal Advisors as to Australian Law" in the Prospectus. In giving such
consent, we do not thereby admit that we are in the category of persons
whose consent is required under section 7 of the United States
Securities Act of 1933.
This opinion is strictly limited to the matters stated in it and does
not apply by implication to other matters.
This opinion is given in respect of the laws of the Relevant
Jurisdictions which are in force at 9.00am local time on the date of
this letter.
Yours faithfully
10