EXECUTION COPY
UNDERWRITING AGREEMENT
US$1,000,000,000
Perpetual Trustee Company Limited
MEDALLION TRUST SERIES 2003-1G
Class A Mortgage Backed Floating Rate Notes Due 2033
UNDERWRITING AGREEMENT
March 13, 2003
X.X. Xxxxxx Securities Inc.
("X.X. XXXXXX")
As Representative of the
Several Underwriters Listed
in Schedule I
000 Xxxx Xxxxxx - 00 Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Perpetual Trustee Company Limited, ABN 42 000 001 007, a company
incorporated in Australia and registered in New South Wales ("PERPETUAL"),
acting in its capacity as trustee of the Medallion Trust Series 2003-1G (the
"TRUST", and Perpetual in that capacity being the "ISSUER TRUSTEE"), acting at
the direction of Securitisation Advisory Services Pty Limited, ABN 88 064 133
946, a company incorporated in Australia and registered in the Australian
Capital Territory, as manager of the Trust (the "MANAGER"), proposes to sell to
the several Underwriters listed in Schedule I to this Agreement (the
"UNDERWRITERS"), for whom X.X. Xxxxxx is acting as representative (the
"REPRESENTATIVE"), US$1,000,000,000 aggregate principal amount of Class A
Mortgage Backed Floating Rate Notes due 2033 (the "CLASS A NOTES") issued by the
Issuer Trustee. The Manager is a wholly-owned subsidiary of Commonwealth Bank of
Australia, ABN 48 123 123 124, a company incorporated in Australia and
registered in the Australian Capital Territory, Australia ("CBA").
The Class A Notes will be secured by the assets of the Trust in
accordance with the Security Trust Deed. The assets of the Trust means all
assets and property, real and personal, (including choses in action and other
rights), tangible and intangible, present or future, held by the Issuer Trustee
from time to time, as trustee of the Trust including, among other things: (i)
rights specified in the Security Trust Deed and the Note Trust Deed in a pool of
variable and fixed rate residential mortgage loans (the "MORTGAGE LOANS") (such
rights, the "MORTGAGE LOAN RIGHTS" (as defined on the next page)) and certain
moneys received under the Mortgage Loans after Xxxxx 0, 0000 (xxx "XXXXXX
XXXX"), (xx) the benefits of all covenants, agreements, undertakings,
representations, warranties and other choses in action in favor of the Issuer
Trustee under the Transaction Documents (as defined in the Series Supplement),
(iii) the Collection
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Account and (iv) all other assets that comprise the Charged Property (as defined
in the Security Trust Deed). The Mortgage Loans will be sold to the Issuer
Trustee by CBA and Homepath Pty Limited ("HOMEPATH") (in such capacity, the
"SELLERS") and will be serviced for the Issuer Trustee by CBA (in such capacity,
the "SERVICER").
The Trust was created pursuant to a master trust deed dated October 8,
1997, as amended from time to time (the "MASTER TRUST DEED") between the Manager
and Perpetual and a series supplement dated March 5, 2003 (the "SERIES
Supplement"), between CBA (as Seller and Servicer), the Manager and the Issuer
Trustee, which describes, among other things, the Trust and the underlying cash
flow relating to the Class A Notes. The Class A Notes will be issued pursuant to
a Note Trust Deed to be dated March 13, 2003 among the Issuer Trustee, the
Manager and The Bank of New York, New York branch (the "US DOLLAR NOTE
TRUSTEE").
The Class A Notes will be issued in an aggregate principal amount of
US$1,000,000,000 which is equal to approximately 98.54% of the aggregate balance
of the Mortgage Loans as of the Cutoff Date. The Class B Notes will be equal to
approximately 1.46% of the aggregate principal amount of the Mortgage Loans as
of the Cutoff Date. The assets of the Trust will also secure under the Security
Trust Deed, among other things, any Redraw Bonds (as defined in the Series
Supplement) that may be issued after the date of this Agreement and the Issuer
Trustee's obligations under the Liquidity Facility. The Class B Notes and the
Redraw Bonds are collectively referred to as the "A$ SECURITIES." The Class A
Notes and the A$ Securities are collectively referred to as the "NOTES."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement (Reg. No. 333-75072), including a prospectus, relating to the Class A
Notes. The registration statement as amended at the time when it became
effective, or, if any post-effective amendment has been filed with respect
thereto, as amended by the most recent post-effective amendment at the time of
its effectiveness, is referred to in this Agreement as the "Registration
Statement", the form of base prospectus included in the Registration Statement
as most recently filed with the Commission is referred to as the "BASE
PROSPECTUS" and the form of the prospectus which includes the Base Prospectus
and a prospectus supplement describing the Class A Notes and the offering
thereof (the "PROSPECTUS SUPPLEMENT") which prospectus is first filed on or
after the date of this Agreement in accordance with Rule 424(b) is referred to
in this Agreement as the "PROSPECTUS".
When used in this Agreement, "BASIC DOCUMENTS" shall mean collectively:
the Master Trust Deed (in so far as it applies to the Trust), the Series
Supplement, the Notes, the Security Trust Deed, the Note Trust Deed, the Agency
Agreement, the Dealer Agreement, the Liquidity Facility Agreement, the Standby
Redraw Facility Agreement, the Currency Swap Agreement, the Interest Rate Swap
Agreement, the Mortgage Insurance Policies, any other document which is agreed
to by the Manager and the Issuer Trustee to be a Transaction Document in
relation to the Trust under clause 1.6(a)(i) of the Series Supplement, the DTC
Letter of Representations, any undertakings given to Euroclear or Clearstream
Banking, societe anonyme ("CLEARSTREAM") in connection with the Book Entry
Notes, and any other contract, agreement or instrument which is specified in the
draft settlement agenda dated March 11, 2003 prepared by Xxxxxxx Xxx in
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connection with the issuance and sale of the Class A Notes. CBA and the Manager
are each a "CBA PARTY" and collectively are referred to as the "CBA Parties".
"EFFECTIVE DATE" shall mean the latest of the dates that the Registration
Statement or the most recent post-effective amendment thereto became effective.
"RULE 424" refers to such rule under the Securities Act. To the extent not
defined herein, capitalized terms used herein have the meanings assigned to such
terms in the Series Supplement.
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity and reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the CBA Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale.
(a) The Issuer Trustee, at the direction of the Manager, agrees to
sell, and the Manager agrees to direct the Issuer Trustee to sell, the Class A
Notes to the several Underwriters as hereinafter provided, and each Underwriter,
upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to purchase, severally and
not jointly, from the Issuer Trustee, the respective principal amounts of Class
A Notes set forth opposite such Underwriter's name in Schedule I hereto at a
price equal to 100% of their principal amount.
(b) In connection with such purchase, CBA will pay in immediately
available funds to the Underwriters the commissions payable under the letter
agreement relating to fees and expenses between CBA and the Representative ("FEE
LETTER").
(c) X.X. Xxxxxx agrees to pay for any expenses incurred by the CBA
Parties in connection with any "roadshow" presentation to potential investors.
2. Offering. The CBA Parties and the Issuer Trustee understand that the
Underwriters intend to make a public offering of their respective portions of
the Class A Notes upon the terms set forth in the Prospectus as soon after (A)
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of X.X. Xxxxxx is
advisable.
3. Delivery and Payment. Payment for the Class A Notes shall be made by
wire transfer in immediately available funds to the account specified by the
Issuer Trustee to X.X. Xxxxxx no later than 12:00 noon, New York City time on
March 21, 2003, or at such other time on the same or such other date, not later
than the fifth Business Day thereafter, as X.X. Xxxxxx and the Manager may agree
upon in writing. The time and date of such payment are referred to herein as the
"CLOSING DATE". As used herein, the term "BUSINESS DAY" means any day other than
a day on which banks are permitted or required to be closed in New York City,
Sydney and London.
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Payment for the Class A Notes shall be made against delivery to the
nominee of the Depository Trust Company for the account of X.X. Xxxxxx and for
the respective accounts of the several Underwriters of one or more fully
registered global book-entry notes (the "BOOK-ENTRY NOTES") representing
US$1,000,000,000 in aggregate Principal Amount of Class A Notes, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Class A Notes duly paid by the Issuer Trustee. The Book-Entry Notes will be
made available for inspection by X.X. Xxxxxx at the offices of Xxxxx Xxxxx, Xxxx
& Maw at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M., New
York City time, on the Business Day prior to the Closing Date. Interests in any
Book Entry Notes will be held only in Book Entry form through DTC, except in
limited circumstances described in the Prospectus.
4. Representations and Warranties.
I. Representations and Warranties of the Issuer Trustee.
The Issuer Trustee represents and warrants to each Underwriter and the
CBA Parties as of the date of this Agreement and as of the Closing Date, and
agrees with each Underwriter and the CBA Parties, that:
(a) since the respective dates as of which information is provided
in the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting the
general affairs, business, prospects, management, or results of operations,
condition (financial or otherwise) of Perpetual or the Trust except as disclosed
in the Prospectus which is material in the context of performing the Issuer
Trustee's obligations and duties under the Notes and each Basic Document to
which it is or is to be party;
(b) Perpetual has been duly incorporated and is validly existing as
a corporation under the laws of Australia, with power and authority (corporate
and other) to conduct its business as described in the Prospectus, and to enter
into and perform the Issuer Trustee's obligations under this Agreement and the
Basic Documents and Perpetual has been duly qualified for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a
material adverse effect on the transactions contemplated herein or in the Basic
Documents;
(c) Perpetual has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by Perpetual, and, when the
Class A Notes have been issued (and duly authenticated by the US Dollar Note
Trustee), delivered and paid for pursuant to this Agreement, they will
constitute valid and binding obligations of the Issuer Trustee entitled to the
benefits of the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable principles;
(e) the execution, delivery and performance by Perpetual of each of
the Basic Documents to which it either is, or is to be, a party and this
Agreement has been duly authorized
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by Perpetual and, when executed and delivered by it and the other parties
thereto, each of the Basic Documents will constitute a legal, valid and binding
obligation of the Issuer Trustee, enforceable against it in accordance with its
terms, subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors rights generally and to general equitable
principles;
(f) Perpetual is not, nor with the giving of notice or lapse of time
or both will be, in violation of or in default under: (i) its constitution or
(ii) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which either it is a party or by which it or any of its
properties is bound, except in the case of (ii), for violations and defaults
which individually and in the aggregate would not have a material adverse effect
on the transactions contemplated in or in the Basic Documents; the issue and
sale of the Notes and the performance by the Issuer Trustee of all of the
provisions of the Issuer Trustee's obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions herein and
therein contemplated will not (I) conflict with or result in a breach 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 it is a party or by which it is bound or to which any of its property or
assets is subject, (II) result in any violation of the provisions of its
constitution or any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over it, or any
of its properties; or (III) result in the creation or imposition of any lien or
encumbrance upon any of its property pursuant to the terms of any indenture,
mortgage, contract or other instrument other than pursuant to the Basic
Documents; and no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the Issuer
Trustee of the transactions contemplated by this Agreement or the Basic
Documents, except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (the latter, including such applicable rules and
regulations, the "TRUST INDENTURE ACT") and as may be required under state
securities or "Blue Sky" Laws in connection with the purchase and distribution
of the Class A Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or the Trust or
to which it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents by
the Issuer Trustee, (iii) that may adversely affect the US Federal or Australian
Federal or state income, excise, franchise or similar tax attributes of the
Class A Notes, (iv) that could materially and adversely affect the Issuer
Trustee's performance of its obligations under, or the validity or
enforceability against the Issuer Trustee of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
any of the Class A Notes; and there are no contracts or other documents to which
it is party or bound that are required to be filed as an exhibit to the
Registration Statement or laws, contracts or other documents required to be
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described in the Registration Statement or the Prospectus which are not filed or
described as required;
(h) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might reduce,
limit or otherwise adversely affect the right of the Issuer Trustee to be
indemnified from the assets of the Trust under Clause 16 of the Master Trust
Deed;
(j) Perpetual has not taken any corporate action and (to the best of
its knowledge and belief having made reasonable inquiry and investigation) no
other steps have been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator, provisional
liquidator or similar officer of it or of any or all its assets;
(k) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Income Tax Assessment Act 1936 (the
"AUSTRALIAN TAX ACT") in relation to interest payments under the Class A Notes,
no withholding or deduction for any taxes, duties, assessments or governmental
charges of whatever nature will be imposed or made for or on account of any
income, registration transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein or thereof
having power to tax in such jurisdiction, in connection with (i) the
authorization, execution or delivery of any of the Basic Documents to which it
is or is to be a party or with the authorization, execution, issue, sale or
delivery of the Class A Notes under this Agreement, (ii) the sale and delivery
of the Class A Notes by the Underwriters contemplated in this Agreement and the
Prospectus or (iii) the execution, delivery or performance by the Issuer Trustee
of any of the Basic Documents to which it is or is to be a party or the Class A
Notes; except, in the case of sub clause (iii), for any of the Basic Documents
on which nominal stamp duty is payable or any other document executed in
connection with the perfection of the Issuer's Trustee's legal title to the
Mortgage Loans on which stamp duties or registration fees may be payable;
(l) the Class A Notes and the obligations of the Issuer Trustee
under the Note Trust Deed will be secured (pursuant to the Security Trust Deed)
by a first floating charge over the assets of the Trust, subject to the Prior
Interest (as defined in the Security Trust Deed); and
(m) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice or
direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
II. Representations and Warranties of the CBA Parties.
Each CBA Party severally represents and warrants to each Underwriter
and the Issuer Trustee as of the date of this Agreement and as of the Closing
Date that:
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(a) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the CBA Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust otherwise than as set
forth or contemplated in the Prospectus;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of Australia, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement
and the Basic Documents, and, in each case, has been duly qualified or licensed
for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification or licensing, other than where the
failure to be so qualified or licensed or in good standing would not have a
material adverse effect on the transactions contemplated in this Agreement or in
the Basic Documents;
(c) this Agreement has been duly authorized, executed and delivered
by it;
(d) each of the Basic Documents to which it is or is to be a party
has been duly authorized by it, upon filing the Note Trust Deed with the
Commission the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each CBA Party that is a party to it and the other parties thereto, will
constitute a legal, valid and binding obligation of such CBA party, enforceable
against it in accordance with its terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement of
creditors rights generally and to general equitable principles; and, in the case
of the Manager only, the Class A Notes and the Basic Documents each will conform
to the descriptions thereof in the Prospectus;
(e) it is not, nor with the giving of notice or lapse of time or
both would it be, in violation of or in default under, its constitution or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach 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 it is a party or by which it is bound or to which any of
its property or assets is subject, (ii) result in any violation of the
provisions of the constitution of a CBA Party or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over a CBA Party, or any of its properties or (iii) result
in the creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract, or
other instrument other than pursuant to the Basic Documents; and no
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consent, approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required for the
issue and sale of the Class A Notes or the consummation by it of the
transactions contemplated by this Agreement or the Basic Documents, except such
consents, approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act, the Trust
Indenture Act and as may be required under state securities or Blue Sky Laws of
the United States in connection with the purchase and distribution of the Class
A Notes by the Underwriters and the registration of the Charge with the ASIC on
the Closing Date;
(f) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or its
properties, the Trust or the Trust's properties, or to which it or the Trust is
or may be a party or to which it, the Trust or any property of it or the Trust
is or may be the subject, (i) asserting the invalidity of this Agreement or of
any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents, (iii) that may adversely affect the U.S. federal or
Australian federal or state income, excise, franchise, stamp duty or similar tax
attributes of the Class A Notes, (iv) that could materially and adversely affect
its performance of its obligations under, or the validity or enforceability of,
this Agreement or any of the Basic Documents or (v) which could individually or
in the aggregate reasonably be expected to have a material adverse effect on the
interests of the holders of the Class A Notes or the marketability of the Class
A Notes; and there are no statutes, regulations, contracts or other documents
that are required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus which
are not filed or described as required;
(g) its representations and warranties contained in the Basic
Documents are true and correct in all material respects;
(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to perform its obligations
under this Agreement and the Basic Documents, and it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization;
and it is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic Documents;
(i) it has not taken any corporate action and (to the best of its
knowledge and belief having made reasonable inquiry and investigation) no other
steps have been taken or legal proceedings been started or threatened against it
for its winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or similar
officer of it or of any or all of its assets (other than enforcement action
taken by CBA over its assets);
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(j) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Australian Tax Act in relation to
payments under the Class A Notes, no withholding or deduction for any taxes,
duties, assessments or governmental charges of whatever nature is imposed or
made for or on account of any income, registration, transfer or turnover taxes,
customs or other duties or taxes of any kind, levied, collected, withheld or
assessed by or within, the Commonwealth of Australia or any sub-divisions of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with (i) the authorization, execution or delivery of the Basic
Documents to which it is, or is to be, a party or with the authorization,
execution, issue, sale or delivery of the Class A Notes and (ii) the execution,
delivery or performance by each CBA Party of the Basic Documents to which it is
or is to be a party or the Class A Notes; except, in the case of sub clause
(ii), for any of the Basic Documents on which nominal stamp duty is payable or
any other document executed in connection with the perfection of the Issuer's
Trustee's legal title to the Mortgage Loans on which stamp duties or
registration fees may be payable;
(k) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute a Manager Default (as defined in the Master Trust Deed) or a Servicer
Default (as defined in the Series Supplement); and
(l) with respect to the A$ Securities: (A) none of the CBA Parties,
any "affiliate" (as defined in Rule 144(a)(1), each an "AFFILIATE") of a CBA
Party or any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has engaged or will engage in any "directed selling efforts" (within the
meaning of Regulation S), (B) each of the CBA Parties, each Affiliate of a CBA
Party and any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has offered and sold, and will offer and sell, the A$ Securities only in
"offshore transactions" (within the meaning of Regulation S) in compliance with
Regulation S and (C) each of the CBA Parties, each Affiliate of a CBA Party and
any person acting on behalf of a CBA Party or an Affiliate of a CBA Party has
complied and will comply with the offering restrictions requirement of
Regulation S.
III. Representations and Warranties of the Manager.
The Manager represents and warrants to each Underwriter and the Issuer
Trustee as of the date of this Agreement and as of the Closing Date, that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; the conditions to the use by the Manager of
a Registration Statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Manager, threatened by the
Commission; and (i) on the Effective Date of the Registration Statement, the
Registration Statement conformed in all material respects to the requirements of
the Securities Act, and did not include 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 and (ii) at the time of filing of
the Prospectus pursuant to Rule 424(b) and on the Closing Date the Prospectus
and the Registration
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Statement will conform in all material respects to the requirements of the
Securities Act, and such document will not include 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 the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act, (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to any CBA Party in writing by such Underwriter through X.X. Xxxxxx
expressly for use therein and (iii) any information in any Computational
Materials or ABS Term Sheets (except as to any information or materials provided
by a CBA Party to produce such information) required to be provided by the
Underwriters to the Manager pursuant to Section 5(v);
(b) the documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder (collectively, the
"EXCHANGE ACT") and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the date
of the Prospectus and at the Closing Date, did not and will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, no representation or
warranty is made as to documents deemed to be incorporated by reference in the
Registration Statement as the result of filing any Current Report on Form 8-K at
the request of the Underwriters except to the extent such documents accurately
reflect or are accurately based upon information furnished by or on behalf of
the CBA Parties to the Underwriters for the purpose of preparing such documents;
(c) Ernst & Young LLP are independent public accountants with
respect to CBA and the Manager within the meaning of the Securities Act;
(d) to the knowledge of the Manager, no event has occurred that
would entitle the Manager to direct the Issuer Trustee to retire as trustee of
the Trust under clause 19.2 of the Master Trust Deed; and
(e) the Trust is not and (i) upon the issuance and sale of the Notes
as contemplated in this Agreement, (ii) the application of the net proceeds
therefrom as described in the Prospectus, (iii) the performance by the parties
to the Basic Documents of their respective obligations under the Basic
Documents, and (iv) the consummation of the transactions contemplated by the
Basic Documents, the Trust will not be required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
5. Covenants and Agreements.
I. Covenants and Agreements of the Issuer Trustee.
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The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the
sale of the Class A Notes pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after
it becomes actually aware of any matter which would make any of its
representations and warranties in this Agreement untrue if given at any time
prior to payment being made to the Issuer Trustee on the Closing Date and take
such steps as may be reasonably requested by the Representative to remedy the
same;
(c) to pay any stamp duty or other issue, transaction, value added,
goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, the
Agreements or in connection with the issue and distribution of the Class A Notes
or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or
before the Closing Date of the conditions referred to in Section 6 below which
relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents not executed on the date hereof on or
before the Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and Clearstream
concerning the issue of the Class A Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure
that the charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic
Documents to which it is a party which are required to be performed prior to or
simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly
permit any action to be taken which it knows or has reason to believe would
result in the Class A Notes not being assigned the ratings referred to in
Section 6(q) below;
(h) not, prior to or on the Closing Date, amend the terms of any
Basic Document nor execute any of the Basic Documents other than in the agreed
form without the consent of the Underwriters;
(i) in connection with the initial distribution of the Class B
Notes, it and each person acting on its behalf (other than the CBA Parties, each
Affiliate of a CBA Party and the Managers (as defined in the Dealer Agreement))
has not and will not offer for issue, or invite applications for the issue of,
the Class B Notes or offer the Class B Notes for sale or invite offers to
purchase the Class B Notes to a person, where the offer or invitation is
received by that person in Australia, unless the minimum amount payable for the
Class B Notes (as the case may be) (after disregarding any amount lent by any of
the CBA Parties or any associate (as determined
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under sections 10 to 17 of the Corporations Act) of any CBA Party) on acceptance
of the offer by that person is at least A$500,000 or the offer or invitation
otherwise does not require disclosure to investors in accordance with Part 6D.2
of the Corporations Act.
II. Covenants and Agreements of the CBA Parties.
The CBA Parties severally covenant and agree with each of the several
Underwriters and the Issuer Trustee as follows:
(a) in the case of the Manager only, to cause the Prospectus,
properly completed, and any supplement thereto, to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and to furnish copies of the Prospectus to the Underwriters in New
York City prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agreement in such quantities as the Representative
may reasonably request;
(b) in the case of the Manager only, to deliver, at the expense of
the Manager, to the Representative, five signed copies of the Registration
Statement (as originally filed) and each amendment thereto, in each case
including exhibits, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto, in each
case without exhibits and, during the period mentioned in paragraph (f) below,
to each of the Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference
therein) as the Representative may reasonably request. The Manager will furnish
or cause to be furnished to the Representative copies of all reports required by
Rule 463 under the Act;
(c) in the case of the Manager only, before filing any amendment or
supplement to the Registration Statement or the Prospectus, to furnish to the
Representative a copy of the proposed amendment or supplement for review and not
to file any such proposed amendment or supplement to which the Representative
reasonably objects;
(d) in the case of the Manager only, to advise the Representative
promptly, and to confirm such advice in writing, (i) when the Prospectus, and
any supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b), (ii) when any amendment to the Registration Statement has been
filed or becomes effective, (iii) when any supplement to the Prospectus or any
amendment to the Prospectus has been filed and to furnish the Representative
with copies thereof, (iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of the Prospectus or the initiation or
threatening of any proceeding for that purpose, and (vi) of the occurrence of
any event, within the period referenced in paragraph (f) below, as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading and to use its best
efforts to prevent the issuance of any such stop order, or of any order
preventing or suspending the use of the Prospectus, or of any order suspending
the qualification of the Class A
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Notes, or notification of any such order thereof and, if issued, to obtain as
soon as possible the withdrawal thereof;
(e) to advise the Representative promptly, and to confirm such
advice in writing of the receipt by a CBA Party of any notification with respect
to any suspension of the qualification of the Class A Notes for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(f) in the case of the Manager only, if, during such period of time
after the first date of the public offering of the Class A Notes as in the
opinion of counsel for the Underwriters a prospectus relating to the Class A
Notes is required by law to be delivered in connection with sales by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the CBA Parties, to the Underwriters and to the dealers (whose names and
addresses the Representative will furnish to CBA) to which Class A Notes may
have been sold by the Representative on behalf of the Underwriters and to any
other dealers upon request, such amendments or supplements to the Prospectus as
may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law;
(g) in the case of the Manager only, to endeavor to qualify the
Class A Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and to continue
such qualification in effect so long as reasonably required for distribution of
the Class A Notes; provided that the Manager shall not be required to file a
general consent to service of process in any jurisdiction;
(h) in the case of the Manager only, to make generally available to
the holders of the Class A Notes and to the Representative as soon as
practicable an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(i) in the case of the Manager only, so long as the Class A Notes
are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual independent
certified public accountant's audit report on the financial statements furnished
to the Issuer Trustee pursuant to the Basic Documents by first class mail as
soon as practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as soon thereafter as practicable, notice by
telex or facsimile to the Representative of the Pool Factor as of the related
Record Date, (iv) copies of all reports or other communications (financial or
other) furnished to holders of the Class A Notes, and copies of any reports and
financial statements furnished to or filed with the Commission, any governmental
or regulatory authority or any national securities exchange, and (v) from time
to time such other information concerning the Trust or the CBA Parties as the
Representative may reasonably request;
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(j) to the extent, if any, that the ratings provided with respect to
the Class A Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by a CBA Party or the Issuer
Trustee, the relevant CBA Party shall use its best efforts to furnish such
documents and take any other such action or, in the case of the Issuer Trustee,
it will use its best efforts to procure the Issuer Trustee to do so;
(k) not to take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to believe
would result in the Class A Notes not being assigned the rating referred to in
Section 6(q) below;
(l) in the case of the Manager only, to assist X.X. Xxxxxx in making
arrangements with DTC, Euroclear and Clearstream concerning the issue of the
Book-Entry Notes and related matters;
(m) in the case of the Manager only, if required, to register the
Class A Notes pursuant to the Securities Exchange Act of 1934, as amended, as
soon as reasonably practicable as such requirement comes into effect but no
later than when such registration may become required by law;
(n) in the case of CBA only, whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
to pay, or cause to be paid, all fees costs and expenses incident to the
performance of the CBA Parties' obligations under this Agreement, including,
without limiting the generality of the foregoing, all fees, costs and expenses:
(i) incident to the preparation, issuance, execution, authentication and
delivery of the Notes, including any fees, costs and expenses of the US Dollar
Note Trustee or any transfer agent, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and the
Prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or qualification
and determination of eligibility for investment of the Class A Notes under the
laws of such jurisdictions as the Underwriters may designate (including fees of
counsel for the Underwriters and their disbursements with respect thereto), (iv)
in connection with the listing of the Notes on any stock exchange, (v) related
to any filing with National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Basic Documents, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as provided in this
Agreement, (vii) the CBA Parties' counsel and accountants and the Underwriters'
counsel fees and disbursement that are chargeable to CBA, and (viii) payable to
rating agencies in connection with the rating of the Notes. However, X.X. Xxxxxx
shall be responsible for any expenses incurred by the CBA Parties in connection
with any "roadshow" presentation to potential investors;
(o) to indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issue tax, including any interest and penalties,
on the creation, issue and sale of the Class A Notes in accordance with this
Agreement and on the execution and delivery of this Agreement and any value
added tax or goods and services tax payable in connection with any concessions,
commissions and other amounts payable or allowable by the
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Issuer Trustee; to make all payments to be made by the CBA Parties or the Issuer
Trustee under this Agreement without withholding or deduction for or on account
of any present or future taxes, duties or governmental charges whatsoever unless
the relevant CBA Party is compelled by law to deduct or withhold such taxes,
duties or charges. In that event, the relevant CBA Party shall pay such
additional amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amount that would have been
received if no withholding or deduction had been made;
(p) in the case of the Manager only, to file the Computational
Materials and ABS Term Sheets (if any) provided to it by the Underwriters under
Section 5(V) with the Commission pursuant to a Current Report on Form 8-K by
10:00 a.m. on the morning the Prospectus is filed pursuant to Rule 424(b) or, in
the case of any Collateral Term Sheet required to be filed prior to such date,
by 10:00 a.m. on the second Business Day following the first day on which such
Collateral Term Sheet has been sent to a prospective investor; provided,
however, that prior to such filing of the Computational Materials and ABS Term
Sheets (other than any Collateral Term Sheets that are not based on the Pool
Information) by the Manager, each Underwriter must comply with its obligations
pursuant to subsection 5(V)(b) hereof and the Manager must receive a letter from
Ernst & Young LLP, certified public accountants, satisfactory in form and
substance to the Manager and its counsel, to the effect that such accountants
have performed certain specified procedures, all of which have been agreed to by
the Manager, as a result of which they determined that all information that is
included in the Computational Materials and ABS Term Sheets (if any) provided by
the Underwriters to the Manager for filing on Form 8-K is accurate except as to
such matters that are not deemed by the Manager to be material. The Manager
shall file any corrected Computational Materials described in Section 5(V) as
soon as practicable following receipt thereof. The Manager also will file with
the Commission within fifteen days of the issuance of the Class A Notes a
Current Report on Form 8-K (for purposes of filing the Basic Documents);
(q) in connection with the initial distribution of the Class B
Notes, it and each person acting on behalf of the CBA Parties, each of whom has
agreed and covenanted with the Issuer Trustee and the Manager, with appropriate
changes, as follows) has not and will not offer for issue, or invite
applications for the issue of, the Class B Notes or offer the Class B Notes for
sale or invite offers to purchase the Class B Notes to a person, where the offer
or invitation is received by that person in Australia, unless the minimum amount
payable for the Class B Notes (as the case may be) (after disregarding any
amount lent by any of the CBA Parties or any associate (as determined under
sections 10 to 17 of the Corporations Act) of any CBA Party) on acceptance of
the offer by that person is at least A$500,000 or the offer or invitation
otherwise does not require disclosure to investors in accordance with Part 6D.2
of the Corporations Act; and
(r) to procure that the charges created by or contained in the
Security Trust Deed are registered within all applicable time limits in all
appropriate registers.
III. Selling Restrictions.
(a) No prospectus in relation to the Class A Notes has been lodged
with, or registered by, the Australian Securities and Investments Commission or
the Australian Stock
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Exchange Limited. Accordingly, each of the Underwriters, severally and not
jointly, represents and agrees that it has not offered and will not offer for
issue and has not invited and will not invite applications for the issue of the
Class A Notes or offer the Class A Notes for sale or invite offers to purchase
the Class A Notes to a person, where the offer or invitation is received by that
person in Australia.
(b) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this Agreement, it will have
offered the Class A Notes for sale, or invited or induced offers to buy the
Class A Notes, in each case by:
(i) making the Prospectus available for inspection on a
Bloomberg source and inviting potential investors to access the
Prospectus available on that Bloomberg source; or
(ii) making hard copies of the Prospectus for the Class A Notes
available for collection from that Underwriter in at least its
principal office in New York City or London and, in the case of
purchasers in the United States, by sending or giving copies of
the Prospectus to those purchasers.
(c) Each Underwriter agrees that it will not sell Class A Notes to,
or invite or induce offers for the Class A Notes from:
(i) any associate of the Issuer Trustee or a CBA Party specified
in Schedule II or Schedule III; or
(ii) any other associate from time to time specified in writing
to the Underwriter by the Issuer Trustee or a CBA Party.
(d) Each Underwriter, severally and not jointly, agrees to:
(i) provide written advice to the Issuer Trustee and the Manager
within 40 days of the issue of the Class A Notes specifying that
it has complied with section 5(III)(b); and
(ii) cooperate with reasonable requests from the Issuer Trustee
for information for the purposes of assisting the Issuer Trustee
to demonstrate that the public offer test under section 128F of
the Australian Tax Act has been satisfied in respect of the
Class A Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any Class A Note
or any information from which such identity might be
capable of being ascertained; or
(y) any information the disclosure of which would be
contrary to or prohibited by any relevant law,
regulation or directive.
-16-
(e) Each Underwriter (severally and not jointly) agrees that:
(i) it has not offered or sold and, prior to the expiry of a
period of six months from the Closing Date, will not offer or
sell any Class A Notes to persons in the United Kingdom 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, as amended;
(ii) 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 Financial Services and Markets Act 2000
(the "FSMA")) received by it in connection with the issue or
sale of any Class A notes in circumstances in which Section
21(1) of the FSMA does not apply to the Trust; and
(iii) has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Class A Notes in, from or otherwise involving
the United Kingdom;
(f) Each Underwriter, severally and not jointly, acknowledges that
no action has been taken to permit a public offering of the Class A Notes in any
jurisdiction outside the United States where action would be required for that
purpose. Each Underwriter will comply with all applicable securities laws and
regulations in each jurisdiction in which it purchases, offer, sells or delivers
Class A Notes or has in its possession or distributes the Prospectus or any
other offering material in all cases at its own expense.
IV. Manager Direction to Issuer Trustee.
The Manager hereby directs the Issuer Trustee to do each of the things
(or, as the case may be, not to do the things) specified in Section 5(I) and the
Issuer Trustee acknowledges and accepts that direction.
V. Covenants and Agreements of the Underwriters.
(a) Each Underwriter represents and warrants to and agrees with the
Issuer Trustee and the CBA Parties that as of the date of this Agreement and as
of the Closing Date, such Underwriter has complied with all of its obligations
under this Agreement, including, without limitation, this Section 5(V), and,
with respect to all Computational Materials and ABS Term Sheets provided by such
Underwriter to the Manager pursuant to this Section 5(V), if any, such
Computational Materials and ABS Term Sheets are accurate in all material
respects (taking into account the assumptions explicitly set forth in the
Computational Materials or ABS Term Sheets), except to the extent of any errors
that are caused by errors in the Pool Information, and include all assumptions
material to their preparation. The Computational Materials and ABS Term Sheets
provided by such Underwriter to the Manager constitute a complete set of all
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Computational Materials and ABS Term Sheets delivered by such Underwriter to
prospective investors that are required to be filed with the Commission.
(b) Each Underwriter may prepare and provide to prospective
investors Computational Materials and ABS Term Sheets in connection with its
offering of the Class A Notes, subject to the following conditions to be
satisfied by such Underwriter:
(i) in connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co.
Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission
in response to the request of the Public Securities Association
dated May 24, 1994 (collectively, the "XXXXXX/PSA LETTER"), as
well as the PSA Letter referred to below. In connection with the
use of ABS Term Sheets, such Underwriter shall comply with all
applicable requirements of the No-Action Letter of February 17,
1995 issued by the Commission to the Public Securities
Association (the "PSA LETTER" and, together with the Xxxxxx/PSA
Letter, the "NO-ACTION LETTERS");
(ii) "COMPUTATIONAL MATERIALS" has the meaning given in the
No-Action Letters, but shall include only those Computational
Materials that have been prepared or delivered to prospective
investors by or at the direction of any Underwriter. "ABS TERM
SHEETS" and "COLLATERAL TERM Sheets" have the meanings given in
the PSA Letter but shall include only those ABS Term Sheets or
Collateral Term Sheets that have been prepared or delivered to
prospective investors by or at the direction of any Underwriter;
(iii) (A) All Computational Materials and ABS Term Sheets
provided to prospective investors that are required to be filed
pursuant to the No-Action Letters shall bear a legend on each
page including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME OF
[APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE NOTES NOR
ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE
ACCURACY OR COMPLETENESS OF THE INFORMATION HEREIN. THE
INFORMATION HEREIN IS PRELIMINARY AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS AND BY ANY OTHER INFORMATION SUBSEQUENTLY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION."
-18-
(B) In the case of Collateral Term Sheets, such legend shall
also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE POOL OF HOUSING LOANS CONTAINED IN THE
PROSPECTUS SUPPLEMENT RELATING TO THE NOTES AND SUPERSEDES ALL
INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS RELATING TO
THE POOL OF HOUSING LOANS PREVIOUSLY PROVIDED BY [NAME OF
[APPLICABLE] UNDERWRITER]."
Upon reasonable notice and in consultation with the
Representative, the Manager shall have the right to require
additional specific legends or notations to appear on any
Computational Materials or ABS Term Sheets, the right to require
changes regarding the use of terminology and the right to
determine the types of information appearing therein.
Notwithstanding the foregoing, subsections (b)(iii)(A) and
(b)(iii)(B) will be satisfied if all Computational Materials and
ABS Term Sheets bear a legend in a form previously approved in
writing by the Manager;
(iv) Such Underwriter shall provide the Manager with
representative forms of all Computational Materials and ABS Term
Sheets prior to their first use, to the extent such forms have
not previously been approved by the Manager for use by the
Underwriters. Such Underwriter shall provide to the Manager, for
filing on Form 8-K as provided in Section 5(II)(p), copies (in
such format as reasonably required by the Manager) of all
Computational Materials and ABS Term Sheets that are required to
be filed with the Commission pursuant to the No-Action Letters.
Such Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information
required to be filed. All Computational Materials and ABS Term
Sheets described in this subsection (b) must be provided to the
Manager not later than 10:00 a.m. New York time one Business Day
before filing thereof is required pursuant to the terms of this
Agreement. Such Underwriter agrees that it will not provide to
any investor or prospective investor in the Notes any
Computational Materials or ABS Term Sheets on or after the day
on which Computational Materials and ABS Term Sheets are
required to be provided to the Manager pursuant to this
subsection (b) (other than copies of Computational Materials or
ABS Term Sheets previously submitted to the Manager in
accordance with this subsection (b) for filing pursuant to
subsection (b) (vi)) unless such Computational Materials or ABS
Term Sheets are preceded or accompanied by the delivery of a
Prospectus to such investor or prospective investor;
-19-
(v) All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the
same methodology and assumptions that are used to generate the
information in the Prospectus Supplement as set forth therein;
provided, however, that the Computational Materials and ABS Term
Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any
Computational Materials or ABS Term Sheets delivered by such
Underwriter that are required to be filed were based on
assumptions with respect to the pool of mortgages to be
securitized that differ from the final information in relation
to the pool of mortgages to be securitized in any material
respect or on note structuring terms that were revised in any
material respect prior to the printing of the Prospectus, such
Underwriter shall prepare revised Computational Materials or ABS
Term Sheets, as the case may be, based on the final information
with respect to the securitized pool of housing loans and final
structuring assumptions, circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the
preliminary versions thereof that indicated orally to such
Underwriter they would purchase all or any portion of the Class
A Notes, and include such revised Computational Materials and
ABS Term Sheets (marked, "as revised") in the materials
delivered to the Manager pursuant to subsection (iv) above;
(vi) The Manager shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been
determined to contain any material error or omission, provided
that, at the request of the applicable Underwriter, the Manager
will file Computational Materials or ABS Term Sheets that
contain a material error or omission if clearly marked
"superseded by materials dated _________" and accompanied by
corrected Computational Materials or ABS Term Sheets that are
marked "material previously dated , as corrected." In the
event that within the period during which the Prospectus
relating to the Class A Notes is required to be delivered under
the Act, any Computational Materials or ABS Term Sheets
delivered by an Underwriter are determined, in the reasonable
judgment of the Manager or such Underwriter, to contain a
material error or omission, such Underwriter shall prepare a
corrected version of such Computational Materials or ABS Term
Sheets, shall circulate such corrected Computational Materials
and ABS Term Sheets to all recipients of the prior versions
thereof that either indicated orally to such Underwriter they
would purchase all or any portion of the Class A Notes, or
actually purchased all or any portion thereof, and shall deliver
copies of such corrected Computational Materials and ABS Term
Sheets (marked, "as corrected") to the Manager for filing with
the Commission in a subsequent Form 8-K submission (subject to
the Manager's obtaining an accountant's comfort letter in
respect of such corrected Computational Materials and ABS Term
Sheets);
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(vii) If an Underwriter does not provide any Computational
Materials or ABS Term Sheets to the Manager pursuant to this
subsection (b), such Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or
electronic form in connection with the offering of the Class A
Notes that is required to be filed with the Commission in
accordance with the No-Action Letters;
(viii) In the event of any delay in the delivery by such
Underwriter to the Manager of all Computational Materials and
ABS Term Sheets required to be delivered in accordance with this
subsection (b), or in the delivery of the accountant's comfort
letter in respect thereof pursuant to subsection (b) (vi) above
the Manager shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the
Closing Date and to take other appropriate actions, in each case
as necessary in order to allow the Manager to comply with its
agreement set forth in subsection 5(II)(p) to file the
Computational Materials and ABS Term Sheets by the time
specified therein;
(ix) Each Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and
procedures which it reasonably believes to be sufficient to
ensure full compliance with all applicable legal requirements of
the No-Action Letters with respect to the generation and use of
Computational Materials and ABS Term Sheets in connection with
the offering of the Class A Notes.
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS Terms
Sheets prior to the date hereof in connection with the offering of the Class A
Notes, all of the conditions set forth in clauses (i) through (viii) above have
been or, to the extent the relevant condition requires action to be taken after
the date hereof, will be, satisfied with respect thereto.
6. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by the
Issuer Trustee and the CBA Parties of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective, not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus used to confirm sales of the
Notes 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 under the Securities Act and in accordance with Section 5II(a)
hereof; and all requests for additional information shall have been complied
with to the satisfaction of the Representative;
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(b) the representations and warranties of the Issuer Trustee and the
CBA Parties contained herein are true and correct on and as of the Closing Date
as if made on and as of the Closing Date and the representations and warranties
of the Issuer Trustee and CBA Parties in the Basic Documents will be true and
correct on the Closing Date; and the Issuer Trustee and the CBA Parties shall
have complied with all agreements and all conditions on the part of each to be
performed or satisfied hereunder and under the Basic Documents at or prior to
the Closing Date;
(c) all actions required to be taken and all filings required to be
made by the Manager or the Issuer Trustee under the Securities Act prior to the
Closing Date for the Notes shall have been duly taken or made;
(d) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date: (x) there shall not have occurred any downgrading in
any rating accorded any securities of, or guaranteed by, CBA by any "nationally
recognized statistical rating organization" (as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act) to: (i) "A2" or worse in
the case of the rating accorded by Xxxxx'x Investors Service, Inc., (ii) "A" or
worse in the case of a rating accorded by Standard & Poor's Ratings Group or
(iii) the equivalent of "A2" or "A" or worse in the case of the rating accorded
by any other "nationally recognized statistical rating organization" nor (y)
shall any notice have been given of any intended or potential downgrading as is
referred to in subclause (x) of this paragraph (d);
(e) since the date of this Agreement, there shall not have been any
material adverse change or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Issuer Trustee or any of the CBA Parties, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Class A Notes on the Closing
Date on the terms and in the manner contemplated in the Prospectus;
(f) the Representative shall have received on and as of the Closing
Date a certificate of an Authorized Officer of the Issuer Trustee and each CBA
Party, with specific knowledge about the party's financial matters, satisfactory
to the Representative to the effect set forth in subsections (a) through (e) of
this Section;
(g) the Representative shall have received letters, of (i) Ernst &
Young LLP, dated the date of delivery thereof, in form and substance
satisfactory to the Representative and counsel for the Underwriters, confirming
that they are independent public accountants within the meaning of the
Securities Act and the applicable Rules and Regulations and stating in effect
that they have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Registration Statement and the Prospectus (and any
amendments and supplements thereto), agrees with the accounting records of CBA,
excluding any questions of legal interpretation; (ii) of PriceWaterhouse
Coopers, dated the date of the Computational Materials or ABS Term Sheets, in
form and substance as previously agreed to by the Representative and otherwise
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that such
-22-
accountants have performed certain specified procedures, all of which have been
agreed to by the Representative as a result of which they have determined that
the information included in the Computational Materials or ABS Term Sheets (if
any), provided by the Underwriters to the Manager for filing on Form 8-K, is
accurate and of (iii) PriceWaterhouse Coopers, dated the date of delivery
thereof, in form and substance satisfactory to the Representative and counsel
for the Underwriters, stating in effect that they have performed certain
specified procedures with respect to the Mortgage Loans;
(h) Sidley Xxxxxx Xxxxx & Xxxx LLP, special United States counsel to
the Underwriters, shall have furnished to the Underwriters their written
opinion, dated the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(i) Xxxxx Xxxxx, Xxxx & Maw, United States counsel for the CBA
Parties, shall have furnished to the Representative their written opinions,
dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(j) Xxxxx Xxxxx, Xxxx & Maw, United States federal income tax
counsel for the CBA Parties shall have furnished to the Representative their
written opinion, dated the Closing Date, in form and substance satisfactory to
the Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(k) Xxxxxxx Xxx, Australian counsel for the CBA Parties, shall have
furnished to the Representative their written opinion, dated the Closing Date,
in form and substance satisfactory to the Representative, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(l) Xxxxxxx Xxx, Australian tax counsel for the CBA Parties, shall
have furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such
Australian tax counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(m) Mallesons Xxxxxxx Xxxxxx, Australian counsel for the Issuer
Trustee and the Security Trustee, shall have furnished to the Representative
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(n) the Chief Solicitor and General Counsel of CBA shall have
furnished to the Representative his written opinion, dated the Closing Date, in
form and substance satisfactory to the Representative, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
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(o) Counsel to the Interest Rate Swap Provider and Currency Swap
Provider shall have furnished to the Representative their written opinion dated
the Closing Date, in form and substance satisfactory to the Representative, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(p) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in connection
with the transaction described in this Agreement which opinion is not otherwise
described in this Agreement allowing the Representative to rely on such opinion
as if it were addressed to the Representative;
(q) the Representative shall have received copies of letters from
Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Group (the "Rating
Agencies") stating that the Class A Notes have been rated AAA or its equivalent
by the Rating Agencies;
(r) the Representative shall have received evidence satisfactory to
it and its counsel that on or prior to the Closing Date the Class B Notes have
been duly authorized, executed, authenticated, issued and delivered pursuant to
the Basic Documents; and
(s) on or prior to the Closing Date the Issuer Trustee and the CBA
Parties shall have furnished to the Representative such further certificates and
documents as the Representative shall reasonably request.
7. Indemnification and Contribution.
(a) Each of the CBA Parties agrees jointly and severally to
indemnify and hold harmless each Underwriter, each affiliate of an Underwriter
that assists such Underwriter in the distribution of the Class A Notes and each
person, if any, that controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the CBA Parties shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
except:
(i) insofar as any such losses, claims, damages, liabilities,
legal fees and other expenses are caused by any untrue statement
or omission or alleged untrue statement or omission made (A) in
reliance upon and in conformity with information relating to any
Underwriter furnished to a CBA Party in writing by such
Underwriter through X.X. Xxxxxx expressly for use therein or (B)
in the Prepayment and Yield Information (as defined in the next
paragraph); or
(ii) that such indemnity with respect to the Prospectus shall
not inure to the benefit of any Underwriter (or any person
controlling any
-24-
Underwriter) from whom the person asserting any such loss,
claim, damage or liability, purchased the Class A Notes which
are the subject hereof, if such person did not receive a copy of
the Prospectus (or the Prospectus as amended or supplemented) at
or prior to the confirmation of the sale of such Class A Notes
to such person, and where such delivery is required by the
Securities Act and the alleged untrue statement contained in, or
omission of a material fact from the Prospectus was corrected in
the Prospectus as amended or supplemented; or
(iii) to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein relating to any information included in
Computational Materials or ABS Term Sheets that have been
superseded by revised Computational Materials or ABS Terms
Sheets if such Underwriter (A) has not complied with its
obligation to circulate revised Computational Materials and ABS
Terms Sheets in accordance with Section 5(V) or (B) has not
delivered them to the Manager no later than one (1) Business Day
after delivery to investors (in the case of (B), to the extent
such loss, claim, damage or liability is attributable to the
failure to deliver) provided that the CBA Parties shall
indemnify each Underwriter to the extent any misstatement or
omission is contained in the Pool Information;
For the purposes of this Agreement, the term "PREPAYMENT AND YIELD
INFORMATION" means that portion of the information in the Prospectus (or the
Prospectus as amended or supplemented) set forth under the sub-heading
"Prepayment and Yield Considerations - Weighted Average Lives", including the
table entitled "Percent of Initial Principal Outstanding at the Following
Percentages of Constant Prepayment Rate", that is not Pool Information;
provided, however, that information set forth under that sub-heading that is not
Pool Information shall not constitute Prepayment and Yield Information to the
extent such information is inaccurate or misleading in any material respect as a
result of it being based on Pool Information that is inaccurate or misleading in
any material respect. "POOL INFORMATION" means the information furnished by
magnetic tape, diskette or any other computer readable format, or in writing to
the Underwriters by any CBA Party regarding the Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and CBA and each person that controls
a CBA Party or the Issuer Trustee within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the CBA Parties to each Underwriter, but only with
reference to: (i) information relating to such Underwriter furnished to the CBA
Parties in writing by such Underwriter through X.X. Xxxxxx expressly for use in
the Registration Statement or the Prospectus, any amendment or supplement
thereto; and (ii) the Computational Materials and ABS Term Sheets delivered to
investors by such Underwriter, except to the extent of any errors in the
Computational Materials or ABS Term Sheets that are caused by errors in the Pool
Information.
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(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to subsection
(a) or (b) above, such person (the "INDEMNIFIED PERSON") shall promptly notify
the person against whom such indemnity may be sought (the "INDEMNIFYING PERSON")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless:
(i) the Indemnifying Person and the Indemnified Person shall
have mutually agreed to the contrary;
(ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified
Person; or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them.
It is understood that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for the
Underwriters, each affiliate of any Underwriter which assists such Underwriter
in the distribution of the Notes and such control persons of Underwriters shall
be designated in writing by X.X. Xxxxxx and any such separate firm for the
Manager, its directors, its officers who sign the Registration Statement, CBA
and the Issuer Trustee and such control persons of each of the Issuer Trustee
and the CBA Parties shall be designated in writing by that party.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this subsection (c), the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if:
(iv) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request;
and
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(v) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the
date of such settlement.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in subsection (a) or (b)
above is unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such subsection, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the CBA Parties and
the Issuer Trustee on the one hand and the Underwriters on the other hand from
the offering of the Class A Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the CBA Parties and the Issuer Trustee on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the CBA Parties and the Issuer Trustee on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the CBA Parties and the Issuer Trustee and the total underwriting
discounts and the commissions received by the Underwriters bear to the aggregate
public offering price of the Class A Notes. The relative fault of the CBA
Parties and the Issuer Trustee on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by a CBA Party or the
Issuer Trustee or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The CBA Parties, the Issuer Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of
-27-
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of Class A Notes set forth opposite their
names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Issuer Trustee and the
CBA Parties set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Issuer Trustee or a CBA Party, its
officers or directors or any other person controlling the Issuer Trustee or a
CBA Party and (iii) acceptance of and payment for any of the Class A Notes.
(f) To the extent that any payment of damages by a CBA Party
pursuant to subsection (a) above is determined to be a payment of damages
pursuant to paragraph 15 of Guidance Note AGN 120.3- "Purchase and Supply of
Assets (including Securities issued by SPVs)", being a Guidance Note to
Prudential Standard APS 120- "Funds Management and Securitisation" or any
successor thereto, such payment shall be subject to the terms therein (or the
terms of any equivalent provisions in any successor of Prudential Standard APS
120).
8. Termination. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of X.X. Xxxxxx, by notice
given to the Issuer Trustee and each CBA Party, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the London Stock Exchange or the Australian
Stock Exchange, (ii) trading of any securities of or guaranteed by the Issuer
Trustee or any CBA Party shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Sydney or London shall have been declared by either
United States Federal, New York State, Commonwealth of Australia, New South
Wales State or United Kingdom authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of X.X. Xxxxxx, is material and adverse
and which, in the judgment of X.X. Xxxxxx, makes it impracticable to market the
Class A Notes on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness of Agreement; Default of Underwriters. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Class A Notes which it or they have agreed to purchase
hereunder on such date, and the
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aggregate principal amount of Class A Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Class A Notes to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the principal amount of Class A Notes set forth opposite their respective
names in Schedule I bears to the aggregate principal amount of Class A Notes set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as X.X. Xxxxxx may specify, to purchase the Class A Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the principal amount
of Class A Notes that any Underwriter has agreed to purchase pursuant to Section
1 be increased pursuant to this Section 9 by an amount in excess of one-ninth of
such principal amount of Class A Notes without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Class A Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Class A Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Class A Notes to be purchased on such date, and arrangements
satisfactory to X.X. Xxxxxx and the Manager for the purchase of such Notes are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the CBA
Parties and the Issuer Trustee. In any such case either X.X. Xxxxxx or the
Manager shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated
by the Underwriters, or any of them, because of any failure or refusal on the
part of the Issuer Trustee or a CBA Party to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Issuer Trustee
or a CBA Party shall be unable to perform its obligations under this Agreement
or any condition of the Underwriters' obligations cannot be fulfilled, the CBA
Parties jointly and severally agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the CBA Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Class A Notes, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
12. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement only in its
capacity as Trustee of the Trust and in no other capacity. A liability incurred
by the Issuer Trustee acting in
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its capacity as Issuer Trustee of the Trust arising under or in connection with
this Agreement is limited to and can be enforced against the Issuer Trustee only
to the extent to which it can be satisfied out of Assets of the Trust out of
which the Issuer Trustee is actually indemnified for the liability. This
limitation of the Issuer Trustee's liability applies despite any other provision
of this Agreement (other than section 12(c)) to the contrary and extends to all
liabilities and obligations of the Issuer Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related to
this Agreement.
(b) Each Underwriter and each of the CBA Parties may not xxx the
Issuer Trustee in respect of liabilities incurred by the Issuer Trustee, acting
in its capacity as Issuer Trustee of the Trust, in any capacity other than as
Issuer Trustee of the Trust including seeking the appointment of a receiver
(except in relation to the Assets of the Series Trust), or a liquidator, an
administrator or any similar person to the Issuer Trustee or prove in any
liquidation, administration or arrangements of or affecting the Issuer Trustee
(except in relation to the Assets of the Trust).
(c) The provisions of this section 12 will not apply to any
obligation or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Master Trust Deed, this Agreement or any other
Transaction Document in relation to the Trust or by operation of law there is a
reduction in the extent of the Issuer Trustee's indemnification or exoneration
out of the Assets of the Trust, as a result of the Issuer Trustee's fraud,
negligence or wilful default (as defined in the Series Supplement).
(d) It is acknowledged that the Relevant Parties (as defined in the
Series Supplement) are responsible under the Basic Documents for performing a
variety of obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations and any breach
of representations and warranties under this Agreement) will be considered
fraudulent, negligent or a wilful default for the purpose of section 12(c) to
the extent to which the act or omission was caused or contributed to by any
failure by any Relevant Party (other than any person for whom the Issuer Trustee
is responsible or liable for in accordance with any Transaction Document) to
fulfill its obligations relating to the Trust or by any other act or omission of
a Relevant Party or any other such person.
13. Actions by Representative; Notices. Any action by the Underwriters
hereunder may be taken by X.X. Xxxxxx Securities Inc. on behalf of the
Underwriters, and any such action taken by X.X. Xxxxxx Securities Inc. shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000 (Facsimile No.: (000) 000-0000); Attention: ABS
Syndicate Desk. Notices to CBA and the Manager shall be given to it at
Commonwealth Bank of Australia, Xxxxx 0, 00 Xxxxxx Xxxxx, Xxxxxx, XXX, 0000
(Facsimile No.: (000) 0000-0000); Attention: Xxx See, Group Treasury. Notices to
the Issuer Trustee shall be given to it at Perpetual Trustees Australia Limited,
Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, XXX, 0000 (Facsimile No.: (612)
9221-7870); Attention: Manager, Securitisation.
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14. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
15. Submission to Jurisdiction. Each of the CBA Parties and the Issuer
Trustee submits to the non-exclusive jurisdiction of any Federal or State court
in the City, County and State of New York, United States of America, in any
legal suit, action or proceeding based on or arising under this Agreement and
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. Each of the CBA Parties and the Issuer Trustee waives, to the
extent permitted by law, the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of such legal suit, action
or proceedings any objection to the laying of the venue of any such suit, action
or proceeding in any Federal or State court in the City, County and State of New
York, United States of America. To the extent that each of the CBA Parties and
the Issuer Trustee or any of their respective properties, assets or revenues may
have or may hereafter become entitled to, or have attributed to it, any right of
immunity from any legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of a judgment, in any such jurisdiction, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with the issuance of the Class A Notes or this Agreement,
each of the CBA Parties and the Issuer Trustee hereby irrevocably and
unconditionally waives and agrees not to plead or claim any such immunity and
consents to such relief and enforcement.
16. Appointments of Process Agent.
(a) Each of the CBA Parties hereby designates and appoints
Commonwealth Bank of Australia, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(Attention: Xxx Xxxxxxxx) (the "CBA Process Agent"), as its authorized agent,
upon whom process may be served in any legal suit, action or proceeding based on
or arising under or in connection with this Agreement, it being understood that
the designation and appointment of Commonwealth Bank of Australia, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (Attention: Xxx Xxxxxxxx) as such authorized agent
shall become effective immediately without any further action on the part of the
each of the CBA Parties. Such appointment shall be irrevocable to the extent
permitted by applicable law and subject to the appointment of a successor agent
in the United States on terms substantially similar to those contained in this
Section 16 and reasonably satisfactory to X.X. Xxxxxx. If the CBA Process Agent
shall cease to act as agent for service of process, each of the CBA Parties
shall appoint, without unreasonable delay, another such agent, and notify X.X.
Xxxxxx of such appointment. Each of the CBA Parties represents to the
Underwriters that it has notified the CBA Process Agent of such designation and
appointment and that the CBA Process Agent has accepted the same in writing.
Each of the CBA Parties hereby authorizes and directs the CBA Process Agent to
accept such service. Each of the CBA Parties further agrees that service of
process upon the CBA Process Agent and written notice of that service to it
shall be deemed in every respect effective service of process upon it in any
such legal suit, action or proceeding. Nothing in this Section 16 shall affect
the right of any Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law.
-31-
(b) The Issuer Trustee hereby designates and appoints CT Corporation
System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "IT Process
Agent"), as its authorized agent, upon whom process may be served in any legal
suit, action or proceeding based on or arising under or in connection with this
Agreement, it being understood that the designation and appointment of CT
Corporation System as such authorized agent shall become effective immediately
without any further action on the part of the Issuer Trustee. Such appointment
shall be irrevocable to the extent permitted by applicable law and subject to
the appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 16 and reasonably satisfactory to
X.X. Xxxxxx. If the IT Process Agent shall cease to act as agent for service of
process, the Issuer Trustee shall appoint, without unreasonable delay, another
such agent, and notify X.X. Xxxxxx of such appointment. The Issuer Trustee
represents to the Underwriters that it has notified the IT Process Agent of such
designation and appointment and that the IT Process Agent has accepted the same
in writing. The Issuer Trustee hereby authorizes and directs the IT Process
Agent to accept such service. The Issuer Trustee further agrees that service of
process upon the IT Process Agent and written notice of that service to it shall
be deemed in every respect effective service of process upon it in any such
legal suit, action or proceeding. Nothing in this Section 16 shall affect the
right of any Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law.
17. Currency Indemnity. The obligations of the parties to make payments
under this Agreement are in U.S. dollars. Such obligations shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than U.S. dollars or any other realization in
such other currency, whether as proceeds of set-off security, guarantee,
distributions, or otherwise, except to the extent to which such tender recovery
or realization shall result in the receipt by the party which is to receive such
payment of the full amount of the U.S. dollars expressed to be payable under
this Agreement. The party liable to make such payment agrees to indemnify the
party which is to receive such payment for the amount (if any) by which the full
amount of U.S. dollars exceeds the amount actually received, and, in each case,
such obligation shall not be affected by judgment being obtained for any other
sums due under this Agreement. The parties agree that the rate of exchange which
shall be used to determine if such tender, recovery or realization shall result
in the receipt by the party which is to receive such payment of the full amount
of U.S. dollars expressed to be payable under this Agreement shall be the noon
buying rate in New York City for cable transfers in such foreign currency as
certified for customs purposes by the Federal Reserve Bank of New York of the
business day preceding that on which the judgment becomes a final judgment or,
if such noon buying rate is not available, the rate of exchange shall be the
rate at which in accordance with normal banking procedures X.X. Xxxxxx
Securities Inc. could purchase United States dollars with such foreign currency
on the business day preceding that on which the judgment becomes a final
judgment.
-32-
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof.
Very truly yours,
COMMONWEALTH BANK OF AUSTRALIA
By: /s/ Xxxxxxx Xxxx See
----------------------------
Name: Xxxxxxx Xxxx See
Title: Senior Manager
SECURITISATION ADVISORY SERVICES
PTY LIMITED
By: /s/ Xxxxxxx Xxxx See
----------------------------
Name: Xxxxxxx Xxxx See
Title: Authorised Officer
PERPETUAL TRUSTEE COMPANY
LIMITED in its capacity as
Trustee of the Trust
By: /s/Xxxxxxxxx Xxxxx
----------------------------
Name: Xxxxxxxxx Xxxxx
Title: Attorney
Accepted: March 13, 2003
X.X. XXXXXX SECURITIES INC.
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
--------------------------
Underwriter
-----------
X.X. Xxxxxx Securities Inc................................ US$720,000,000
Commonwealth Bank of Australia............................ US$80,000,000
Credit Suisse First Boston Corporation ................... US$60,000,000
Deutsche Bank Securities Inc.............................. US$80,000,000
Nomura International plc.................................. US$60,000,000
=============
Total....... US$1,000,000,000
-34-
SCHEDULE II
List of 128F(9) Associates of the Issuer Trustee
Perpetual Trustees Australia Ltd
Perpetual Trustee Company Ltd
Perpetual Trustees Nominees Ltd
ACT Nominees Ltd
Perpetual Custodians Ltd
Perpetual Trust Services Limited (formerly Perpetual Trust Limited)
Hunter Nominees Pty Ltd
PT Limited
Perpetrust Nominees Pty Ltd
Perpetual Australia Property Services (NSW) Pty Ltd (formerly Perpetual
Property Services Services Pty Ltd.)
Perpetual Service Network Pty Limited
Investor Marketplace Limited
ASX Perpetual Registrars Limited
Australian Trustees Pty Limited
Australian Trustees Limited
Commonwealth Trustees Pty Limited
Perpetual Services Pty Ltd
Perpetual Australia Pty Limited
Perpetual Nominees Limited (formerly PTA Nominees Limited)
Perpetual Investment Management Limited (formerly Perpetual Management Limited)
Perpetual Trustees SA Limited
Queensland Trustees Pty Limited
Perpetual Fund Services Limited
Perpetual Superannuation Limited
Perpetual Assets Pty Ltd
Perpetual Asset Management Ltd
Perpetual Trustees Victoria Ltd
Perpetual Executors Nominees Ltd
Midway Nominees Pty Ltd
Perpetual Trustees Queensland Ltd
Perpetual Trustee Company (Canberra) Ltd
Charleville Leasing Ltd
Perpetual Trustees W.A. Ltd
Perpetual Australia Property Services (WA) Pty Ltd (formerly Perpetual Property
Agency Pty Limited)
Perpetual Custodians WA Pty Ltd
Terrace Guardians Ltd
Selwest Pty Ltd
Perpetual Trustees Consolidated Limited (formerly AXA Trustees Limited)
Perpetual Nominees Canberra Limited (formerly N.M.L. Nominees (Canberra)
Limited)
Perpetual Custodian Nominees Pty Ltd. (formerly T&G Guardian Corporation Pty
Ltd)
-00-
Xxxxxxxxx Xxxxxxxx Nominees Pty Ltd. (formerly National Trustee nominees
Proprietary Limited)
Xxxxxx Xxxxxxxx Finance Pty Limited
Xxxxxx Xxxxxxxx Limited
Xxxxxx Xxxxxxxx Partnership Pty Ltd
-36-
SCHEDULE III
List of 128F(9) Associates of the CBA Parties
---------------------------------------------
000 Xxxx Xxxxxxx Xx Trust
000 Xxxxxxx Xxxxxx Pty Ltd
000 Xxxx Xx Trust
000 Xxxxxxxxx Xxxxxx Holdings Pty Limited
000 Xxxxxxxxx Xxxxxx Pty Limited
000 Xxxx Xx Trust
000 Xxxxx Xxxxxx Partnership
000 Xxxxxx Xx Trust
00 Xxxx Xxxxxx Pty Limited
000 Xxxxxx Xx Trust
000 Xxxxx Xxxxxx Pty Ltd
0 Xxxxxx Xxxxxx Partnership
A.C.N 000 000 000 Ltd
A.C.N 002 680 471 Pty Ltd
A.C.N 003 311 546 Pty Limited
A.C.N 004 929 962 Pty Ltd
A.C.N 007 255 521 Pty Ltd
A.C.N 008 521 579 Pty Ltd
A.C.N 008 645 654 Pty Ltd
A.C.N 053 365 950 Pty Ltd
A.C.N 055 939 118 Pty Ltd
A.C.N 080 159 762 Pty Ltd
A.C.N 080 182 163 Pty Ltd
A.C.N 080 182 529 Pty Ltd
A.C.N 000 000 000 Pty Ltd
A.C.N 080 182 761 Pty Ltd
A.C.N 000 000 000 Pty Ltd
A.C.N 000 000 000 Pty Ltd
A.C.N 090 916 813 Pty Ltd
A.C.N 090 916 831 Pty Ltd
A.C.N 090 916 840 Pty Ltd
AAP Centre 000 Xxxxxx Xxxxxx Joint Venture
ACAPM Holdings A Pty Ltd
ACAPM Holdings B Pty Ltd
ACAPM Pty Ltd
AEFC Investments Pty Limited
Aetna Properties Limited
AFS Life Finance Pty Ltd
AFS Support Services Pty Ltd
AGAL Holdings Pty Ltd
Allara Trust
Allco Leasing Participation No 65
-37-
Altona Trust
Antarctic Shipping Pty Ltd
APRC AUST Trust No. 1
APRC AUST Trust No. 2
APRC NZ Trust No. 3
Aquashell Pty Limited
Aquasten Pty Limited
Armraynald Investments Pty Ltd
ASB Bank Limited
ASB Finance Limited
ASB Group (Holdings) Limited
ASB Group (Life) Limited
ASB Group Limited
ASB Holdings Limited
ASB Investments Limited
ASB Life Limited
ASB Management Services Limited
ASB Nominees Limited
ASB Properties Limited
ASB Securities Limited
ASB Smart Cards Limited
Asia Pacific Receivables Corporation Limited
Aurora Place Holdings Pty Limited
Australia Fair Shopping Centre Trust
Australian All Ordinaries Indexed Trust (Ozdaq)
Australian Bank Limited
Australian Eligible Rollover Fund
Australian Industrials Indexed Trust (Ozdaq)
Australian Pastoral Company Pty Limited
Australian Resources Indexed Trust (Ozdaq)
Australian TIC Management Pty Limited
Auz-Com Technologies Pty Ltd
Ayudhya CMG Life Assurance PLC
Balga Pty Limited
Banner Consultancy Services Pty Ltd
Xxx Xxxx CMG Life Insurance Company Ltd
BDSC Pty Limited
Beenleigh Marketplace Partnership
Bennelong Centre Pty Ltd
Berhark Pty Ltd
Better Off Ltd
Binya Pty Limited
Bizserv Pty Ltd
Brookhollow Ave Pty Limited
Burwood Trust
C1 Trust
-38-
Caringbah SupaCenta Partnership
CBA (Delaware) Finance Incorporated
CBA (Europe) Finance Limited
CBA Asia Limited
CBA Corporate Services (NSW) Pty Limited
CBA Corporate Services (VIC) Pty Limited
CBA EDSA IT Assets Partnership
CBA Funding (NZ) Limited
CBA IB Unit Trust Listing
CBA Indemnity Co Pty Limited
CBA International Finance Pty Limited
CBA Investments (No 4) Pty Ltd
CBA Investments (No2) Pty Ltd
CBA Investments Limited
CBA Investments Trust
CBA IT Co Pty Limited
CBA Leasing (No 2) Pty Limited
CBA Mitsubishi Motors Australia Ltd Leveraged Lease
Partnership (No.1)
CBA MTE Rail Company Pty Limited
CBA Rail and Tram Company Pty Limited
CBA Specialised Financing Limited
CBA Toyota Motor Corporation Australia Ltd Leveraged Lease
CB-CLA Limited
XX-XXXXX Pty Ltd
CB-CLAS Limited
CB-CLFIA Limited
CB-CLHA Limited
CB-CLMM Limited
CB-CLPF Limited
CB-CLPSG Limited
CB-CLRA Pty Ltd
CB-CLSA Limited
CBFC Leasing Pty Limited
CBFC Limited
CBFC Properties Pty Limited
CB-KNSN Pty Ltd
CB-MN Pty Ltd
CC Group Holdings Pty Limited
XX Xxxxxxx Ltd
Central Real Estate Holdings Corporation
CFCL Emerging Markets Fund
CFCL Global Bond Fund No 2
CFCL Global Resources Trust
CFCL International Share Fund
CFCL Market Linked Australian Industrial Share (Ordinary Business) Fund
CFCL Market Linked Australian Industrial Share (Superannuation Business) Fund
-39-
CFCL Non Market Linked Australian Industrial Share Fund - LGEIT
CFCL North American High Yield Fund
CFCL North Terrace Finance Fund No 1
CFCL North Terrace Finance Fund No 2
CFCL Property Securities (Ordinary Business) Fund
CFCL Property Securities (Superannuation Business) Fund
CFCL Property Trust No 1
CFCL Property Trust No 2
CFCL Property Trust No 3
CFCL Property Trust No 4
CFCL Property Trust No 5
CFCL Statutory Fund Options Trust
CFCL Structured Investment Fund
CFM (ADF) Limited
CFM (GIT) Balanced Fund
CFM General Investment Trust Capital Stable Fund
CFM General Investment Trust Hedged International Equities Fund
CFM General Investment Trust Managed Growth Fund
CFM General Investment Trust Portfolio Services Select Assets Fund
CFM Investment Fund
CFM Pooled Super Trust
CFM Retirement Fund (PKF)
CFM Rural Investment Fund
CFML Nominees Pty Ltd
CFS Managed Property Ltd
China Life - CMG Life Assurance Company Ltd
Chullora Equity Investment Partnership
Chullora Equity Investments (No1) Pty Limited
Chullora Equity Investments (No2) Pty Limited
Chullora Equity Investments (No3) Pty Limited
CIF (Xxxxxxxxx) Pty Limited
CIM Unit Trust Managers Ltd
CISL (Xxxxxxxxx) Pty Limited
CLGA Staff Superannuation Fund Pty Ltd
CLL Investments Limited
CLL Property Trust
CM Somerton Pty Ltd
CMG Asia (Philippines) Holding Limited
CMG Asia Life Holdings Limited
CMG Asia Ltd
CMG Asia Pensions and Retirements Ltd
CMG Asia Pty Ltd
CMG Asia Trustee Company Ltd
CMG CH China Funds Management Limited (50%)
CMG CH China Investments Ltd
CMG First State (HK) LLC
-40-
CMG First State Investment Holdings Singapore Limited
First State Investment Managers (Asia) Limited
CMG First State Investments (Bermuda) Ltd
CMG First State Investments (HK) Ltd
CMG First State Nominees (HK) Ltd
CMG Health Co Inc (Philippines)
CMG Holding (Thailand) Co Ltd
CMG Life Insurance Co Inc
CMG Xxxxx China Investment Management GP Ltd (Cayman Islands)
CMG Xxxxx China Investment Management Ltd
CMG Xxxxx China Investment Management Ltd (NZ)
CMG Plans Inc (Philippines)
CMLA Global Resources Fund
CMLA International Share Fund
CMLA Market Linked Australian Industrial Share Fund
CMLA Non Market Linked Australian Industrial Share Fund
CMLA Property Securities Fund
CMLA Statutory Funds Options Trust
Collateral Leasing Pty Limited
Collateral Sparad Limited Partnership No 1
Collateral Sparad Limited Partnership No 2
Collateral Sparad Limited Partnership No 3
Collateral Sparad Limited Partnership No 4
Collateral Sparad Limited Partnership No 5
Collateral Sparad Limited Partnership No 6
Colonial (Finwiz) Holdings Services Limited
Colonial (Staff) Australia Superannuation No.2 Ltd
Colonial (UK) Trustees Limited
Colonial AFS Services Pty Ltd
Colonial Agricultural Company Limited
Colonial Annuity Mortgage Trust
Colonial Asset Finance Pty Ltd
Colonial Asset Management Limited
Colonial Assurance Company of Australia and New Zealand Pty Ltd
Colonial Australia Superannuation Limited
Colonial Australian Share (CFS) Fund
Colonial Australian Share (Premixed) Fund
Colonial Australian Share Fund 1
Colonial Australian Share Fund 2
Colonial Australian Share Fund 3
Colonial Australian Share Fund 4
Colonial Balanced (Premixed) Fund
Colonial Capital Stable (Premixed) Fund
Colonial Cash (CFS) Fund
Colonial Diversified Growth (Premixed) Fund
Colonial x.Xxx Ltd
-41-
Colonial Employee Share Plan Pty Ltd
Colonial Employee Share Plan Trust
Colonial Fiji Life Ltd
Colonial Finance (Australia) Ltd
Colonial Finance (UK) Ltd
Colonial Finance Limited
Colonial Financial Corporation Limited
Colonial Financial Management Limited
Colonial Financial Planners Limited
Commonwealth Financial Solutions Pty Ltd
Colonial First State Australian Share Fund
Colonial First State Balanced Fund
Colonial First State Bricks & Mortar
Colonial First State Cash Fund
Colonial First State Cash Management Trust
Colonial First State Commercial Property Trust
Colonial First State Conservative Fund
Colonial First State Developing Companies Fund
Colonial First State Development Trust
Colonial First State Diversified Balanced Fund
Colonial First State Diversified Fund
Colonial First State e.CMT
Colonial First State Fund Managers (UK) Ltd
Colonial First State Fund Services Ltd
Colonial First State Future Leaders Fund
Colonial First State Geared Share Fund
Colonial First State Global Health & Biotechnology Fund
Colonial First State Global Resources Fund
Colonial First State Global Share Fund
Colonial First State Global Technology and Communications Fund
Colonial First State Group Ltd
Colonial First State Guaranteed Mortgage Fund - Entry
Colonial First State Guaranteed Mortgage Fund - Nil
Colonial First State High Growth Fund
Colonial First State Imputation Fund
Colonial First State Industrial Property Trust
Colonial First State Industrial Subsidiary Trust No 1
Colonial First State Industrial Subsidiary Trust No 2
Colonial First State Infrastructure Finance Fund 2001
Colonial First State Infrastructure Investment Fund 2001
Colonial First State International Assets Limited
Colonial First State Investment Managers (NZ) Limited
Colonial First State Investment Managers (UK) Limited
Colonial First State Investments (Fiji) Ltd
Colonial First State Investments (NZ) Ltd
Colonial First State Investments Limited
-42-
Colonial First State Ltd
Colonial First State Mortgage Fund
Colonial First State Pooled Super Trust
Colonial First State Premier CMT
Colonial First State Private Equity Ltd
Colonial First State Projects Pty Ltd
Colonial First State Property (NZ) Limited
Colonial First State Property Funds Management Ltd
Colonial First State Property Holdings No. 2 Pty Ltd
Colonial First State Property Holdings No. 3 Pty Ltd
Colonial First State Property Investment Ltd
Colonial First State Property Limited
Colonial First State Property Securities Fund
Colonial First State Retail Property Trust
Colonial First State Rollover & Superannuation Fund
Colonial First State Wholesale Americas Equities Fund
Colonial First State Wholesale Asian Equities Fund
Colonial First State Wholesale Australian Bond Fund
Colonial First State Wholesale Australian Share Fund
Colonial First State Wholesale Balanced Fund
Colonial First State Wholesale Bricks & Mortar Fund
Colonial First State Wholesale Cash Fund
Colonial First State Wholesale Cash-Plus Fund
Colonial First State Wholesale Conservative Fund
Colonial First State Wholesale Conservative Growth Fund
Colonial First State Wholesale Direct Property Fund
Colonial First State Wholesale Diversified Fixed Interest Fund
Colonial First State Wholesale Diversified Fund
Colonial First State Wholesale Geared Share Fund
Colonial First State Wholesale Global Health & Biotechnology
Fund
Colonial First State Wholesale Global Resources Fund
Colonial First State Wholesale Global Share Fund
Colonial First State Wholesale Global technology and
Communication Fund
Colonial First State Wholesale Guaranteed Mortgage Fund
Colonial First State Wholesale High Growth Fund
Colonial First State Wholesale High Yield Fund
Colonial First State Wholesale Imputation Fund
Colonial First State Wholesale Income Fund
Colonial First State Wholesale Industrial Share Fund
Colonial First State Wholesale International High Yield Fund
Colonial First State Wholesale Japanese Equities Fund
Colonial First State Wholesale Leaders Fund
Colonial First State Wholesale Pan-European Share Fund
Colonial First State Wholesale Property Securities Fund
Colonial First State Wholesale World Equities Fund
Colonial Fixed Interest (Premixed) Fund
-43-
Colonial Foundation Charitable Trust
Colonial Foundation Limited
Colonial Foundation Trust - Permanent Fund
Colonial Foundation Trust - Transitional Fund
Colonial Group Staff Superannuation Scheme
Colonial Health Care (Fiji) Ltd
Colonial Holding Company (No 2) Pty Ltd
Colonial Holding Company Pty Limited
Colonial Infrastructure Finance Fund 1996-5
Colonial Infrastructure Finance Fund 1997-3
Colonial Infrastructure Finance Fund 1997-4
Colonial Infrastructure Finance Fund 1998-2
Colonial Infrastructure Finance Fund 1999-1
Colonial Infrastructure Investment Fund 1997-3
Colonial Infrastructure Investment Fund 1997-4
Colonial Infrastructure Investment Fund 1998-1
Colonial Infrastructure Investment Fund 1998-2
Colonial Infrastructure Investment Fund 2001-1
Colonial Insurance Services Pty Ltd
Colonial International Factors Pty Ltd
Colonial International Holdings Pty Ltd
Colonial International Share (CFS) Fund
Colonial International Share (Premixed) Fund
Colonial International Share Fund 1
Colonial International Share Fund 2
Colonial Investment Company of Austalia Pty Ltd
Colonial Investment Services Ltd
Colonial Investments Holding Pty Ltd
Colonial LGA Holdings Ltd
Colonial Life (NZ) Ltd
Colonial Limited
Colonial Master Fund Approved Deposit Fund
Colonial Master Fund Investment Management Service
Colonial Master Fund Superannuation Fund
Colonial Masterfund Pre-Mixed Balanced Fund
Colonial Masterfund Pre-Mixed Growth Fund
Colonial Masterfund Pre-Mixed Income Fund
Colonial Masterfund Pre-Mixed Managed Equities Fund
Colonial Masterpac Superannuation fund
Colonial Mortgage Fund (CFS) Fund
Colonial Mortgage Trust
Colonial Mutual Choice Property Fund No 1
Colonial Mutual Deposit Services Ltd
Colonial Mutual Funds Ltd
Colonial Mutual Masterpac Superannuation Fund
Colonial Mutual Pace Personal Superannuation Fund
-44-
Colonial Mutual Personal Superannuation Fund
Colonial Mutual Property Group Pty Ltd
Colonial Mutual Property Trust No 1
Colonial Mutual Self-Employed Retirement Fund
Colonial Mutual Superannuation Fund for Self-Employed Persons
Colonial Mutual Superannuation Pty Ltd
Colonial Net Limited
Colonial Nominees No.3 Fund Pty Ltd
Colonial PCA Aust Staff Pension Scheme
Colonial PCA Aust Superannuation Scheme
Colonial PCA Australian Superannuation Ltd
Colonial PCA Holdings Pty Ltd
Colonial PCA Properties Limited
Colonial PCA Pty Ltd
Colonial PCA Services Ltd
Colonial PCA Staff Superannuation Ltd
Colonial Pension Fund
Colonial Personal Super Fund
Colonial Portfolio Retirement Fund
Colonial Portfolio Services Ltd
Colonial Promotions Pty Ltd
Colonial Property Management (NSW) Pty Ltd
Colonial Property Management (QLD) Pty Ltd
Colonial Property Management (SA) Pty Ltd
Colonial Property Management (VIC) Pty Ltd
Colonial Property Management (WA) Pty Ltd
Colonial Property Securities (CFS) Fund
Colonial Property Securities (Premixed) Fund
Colonial Property Securities Fund 1
Colonial Property Securities Fund 2
Colonial Protection Insurance Pty Ltd
Colonial Services (Fiji) Ltd
Colonial Services Pty Ltd
Colonial Share Plan Trust
Colonial Mutual Social Club Inc
Colonial South Australia Ltd
Colonial State Residual (No 1) Pty Ltd
Colonial State Residual (No 2) Pty Ltd
Colonial Statutory Funds Management Ltd
Colonial Super Retirement Fund
Colonial Superannuation Fund
Colonial Superannuation Master Trust (Colonial Easy Options ROSCO & PPP)
Colonial Superannuation Services Limited
Colonial Tasman Pty Ltd
Colonial Trade Services (Hong Kong) Pty Ltd
Colonial Trustees (NZ) Ltd
-45-
Colonial UK Staff Pension Trustees Ltd
Colonial Unit Trust Managers (NZ) Ltd
Commonwealth Airports Fund
Commonwealth Alternative Equity Fund
Commonwealth Asia Pacific Share Fund
Commonwealth Asian Equity Trust(duplication see below)
Commonwealth Australian Bond Fund
Commonwealth Australian Share Fund
Commonwealth Balanced Fund
Commonwealth Bank Approved Deposit Fund
Commonwealth Bank of Australia Limited
Commonwealth Bank Officers Superannuation Corporation Pty
Limited
Commonwealth Bank Staff Community Fund
Commonwealth Bank Vodafone Leveraged Lease No.1 Partnership
Commonwealth Bond Fund
Commonwealth Capital Corporation Limited
Commonwealth Capital Limited
Commonwealth Cash Fund
Commonwealth Cash Management Trust
Commonwealth Custodial Services (New Zealand) Ltd
Commonwealth Custodial Services Limited
Commonwealth Development Bank of Australia Limited
Commonwealth Diversified (Restricted) Credit Fund
Commonwealth Diversified Australian Fixed Interest Fund
Commonwealth Diversified Credit Fund
Commonwealth Diversified Credit Plus Fund
Commonwealth Diversified Credit Plus Fund No. 3
Commonwealth Diversified Share Fund
Commonwealth Fleet Lease Pty Limited
Commonwealth Foundation Australian Bond Fund
Commonwealth Foundation Australian Share Fund
Commonwealth Foundation Consensus Fund
Commonwealth Foundation International Bond Fund
Commonwealth Foundation International Share Fund
Commonwealth Foundation Property Securities Fund
Commonwealth Funds Management Limited
Commonwealth Funds Management Ltd Pooled Superannuation Trust
Commonwealth Group Pty Limited
Commonwealth Growth Fund
Commonwealth Hedged International Fixed Interest Fund
Commonwealth Hybrid Property Fund
Commonwealth Imputation Share Fund
Commonwealth Income Fund
Commonwealth Infrastructure & Utilities Fund
Commonwealth Infrastructure T1 Fund
Commonwealth Insurance Holdings Limited
-46-
Commonwealth Insurance Limited
Commonwealth International Bond Fund
Commonwealth International Real Estate Trust
Commonwealth International Share Fund
Commonwealth Investment Services Limited
Commonwealth Investments Pty Limited
Commonwealth Life Limited
Commonwealth Life Limited Property Trust
Commonwealth Life Personal Superannuation Fund
Commonwealth Life Superannuation Mastertrust
Commonwealth Lifetime Australian Active 0 - 3 Year Maturities Bond Fund
Commonwealth Lifetime Australian Active 0 - 5 Year Maturities Bond Fund
Commonwealth Lifetime Australian Active All Maturities Bond Fund
Commonwealth Lifetime Australian Active Share Fund
Commonwealth Lifetime Australian Cash Fund
Commonwealth Lifetime Australian Indexed All Maturities Bond Fund
Commonwealth Lifetime Australian Indexed Enhanced Share Fund
Commonwealth Lifetime Australian Indexed Share Fund
Commonwealth Lifetime Australian Index-Linked Bond Fund
Commonwealth Lifetime Australian Private Equity Fund
Commonwealth Lifetime Australian Savings Option Fund
Commonwealth Lifetime Direct Listed Property Fund
Commonwealth Lifetime Direct Property Fund
Commonwealth Lifetime International Bond Fund
Commonwealth Lifetime International Share Fund
Commonwealth Lifetime Listed Property Fund
Commonwealth Lifetime Private Equity Fund
Commonwealth Managed Investments Limited
Commonwealth Master Australian Shares Fund
Commonwealth Master Capital Defensive Fund
Commonwealth Master Conservative Fund
Commonwealth Master Diversified Australian Shares Fund
Commonwealth Master Growth Fund
Commonwealth Master Managed Fund
Commonwealth Master Shares Fund
Commonwealth Mortgage Fund
Commonwealth Premium Asian Equity Fund
Commonwealth Premium Cash Enhanced Fund
Commonwealth Premium Cash Management Fund
Commonwealth Premium Cash Plus Fund
Commonwealth Premium International Equity Fund
Commonwealth Property Diversified Pool
Commonwealth Property Fund
Commonwealth Property Hotel Fund
Commonwealth Property Investment Fund
Commonwealth Property Investment Trust
-47-
Commonwealth Property Office Fund
Commonwealth Property Pty Ltd
Commonwealth Property Securities Fund
Commonwealth Securities (Japan) Pty Limited
Commonwealth Securities Limited
Commonwealth Share Income Fund
Commonwealth Tracker Enhanced Australian Share Fund
Commonwealth Wholesale Australian Bond Fund
Commonwealth Wholesale Australian Equities Trust
Commonwealth Wholesale Australian Share Fund
Commonwealth Wholesale Australian Share Income Fund
Commonwealth Wholesale Cash Management Trust
Commonwealth Wholesale Diversified Australian Shares Fund
Commonwealth Wholesale Diversified Fixed Interest Fund
Commonwealth Wholesale Diversified Listed Property Securities Fund
Commonwealth Wholesale International Share Fund
Commonwealth Wholesale Property Securities Fund
Commonwealth Wholesale Small Companies Fund
Comsec Nominees Pty Limited
Comsec Trading Limited
Continental Assurance Pty Limited
Count First Australian Share Fund
CPSL International Share Fund
CPSL Investments
CPSL Master Fund Investment Division
CSI Services (UK) Ltd
CST Securitisation Management Limited
CTB Australia Limited
Cyberlynx Procurement Services Pty Limited
Cyberlynx Supplier Hub Pty Ltd
Darontin Pty Limited
DBCV Pty Limited
Direct Australian Pty Limited
Electronic Financial Technologies Pty. Limited
Emerald Holding Company Limited
Eon CMG Life Assurance Berhard (Malaysia)
Esplanade Property Trust
Xxxxx Pty Ltd
Financial Wisdom Limited
Finlay Crisp Centre Trust
First Australian Pty Limited
First Custodial Services Pty Ltd
First State Investments (UK Holdings) Ltd
Fleet Care Services Pty Limited
Fouron Pty Ltd
Franchise Services (NZ) Ltd
-48-
GATX Rail (Australia) Pty Limited
GATX Rail (BY-1) Pty Limited
GATX Rail (BY-2) Pty Limited
GATX Rail (BY-3) Pty Limited
GATX Rail (BY-4) Pty Limited
GaTX Rail (SW-1) Pty Limited
GATX Rail (SW-2) Pty Limited
GaTX Rail (SW-3) Pty Limited
GaTX Rail (SW-4) Pty Limited
GATX Rail (Victoria) Pty Limited
Generic Loan asset securitisation structures Limited
Gold Star Mortgage Management Pty Limited
Gold Star Trust Xx. 0
Xxxxxxxxx Xxxxx Xxxxxxxxxxx
Xxxxxxxxx Place Pty Limited
Xxxxxx Xxxx Pty Ltd
Harford Pty Limited
Xxxxxxxxx Investment Company Pty Limited
H-G Capital Investments Ltd
H-G Capital Ltd
H-G Development Custodians Pty Ltd
H-G Development Ltd
H-G Fund 5 Custodians Pty Ltd
H-G Ventures Investments Ltd
H-G Ventures Ltd
HIC Finance Pty Limited
Homepath Pty Limited
Hunter Trust
I1 Trust
Industry Fund Services Pty Ltd
Industry Funds Administration Pty Ltd
Industry Funds Administration Pty Ltd (50%)
Industry Funds Credit Control Pty Ltd
Infravest (No 1) Limited
Infravest (No 2) Limited
Interstate Banking Services Pty Ltd
Investment Co Pty Ltd
Investors Life Insurance Co of Australia Pty Ltd
IPAC Executive Share Plan Trust
Xxxxxxx Xxxxxx Administration and Consulting Pty Ltd
Xxxxxxx Xxxxxx Industry Funds Administration Pty Ltd
Xxxxxxx Xxxxxx New Zealand Ltd
Xxxxxxx Xxxxxx Pty Ltd
JMIFA Partners PTY Ltd (50%)
JMIFA Super Partners Pty Ltd
Kent Street Trust
-49-
Keystone Financial Services Ltd
L&G Infrastructure Finance Fund 1996-2
L&G Infrastructure Finance Fund 1996-3
L&G Infrastructure Finance Fund 1996-4
L&G Infrastructure Fund 1996-5
Landmark Superannuation Funds
Lazarose Pty Ltd
Leaseway Transportation Pty Ltd
Legal & General Life of Australia Ltd and SGIO Ltd
Legal & General Special Infrastructure Fund 1996-4
Legener (Australia) Pty Ltd
LG Inc
Lonex Pty Ltd
Lyrech Pty Limited
Xxxxx Street Holdings (No.2) Pty Limited
Xxxxx Street Holdings Pty Limited
Mastercare Superannuation Fund
Mastertrust Premixed Wholesale Australian Share Fund
Mastertrust Premixed Wholesale Balanced Fund
Mastertrust Premixed Wholesale Captial Stable Fund
Mastertrust Premixed Wholesale Diversified Growth Fund
Mastertrust Premixed Wholesale Fixed Interest Fund
Mastertrust Premixed Wholesale International Share Fund
Mastertrust Premixed Wholesale Property Securities Fund
Mastertrust Wholesale Australian Share Fund 1
Mastertrust Wholesale Australian Share Fund 2
Mastertrust Wholesale Australian Share Fund 3
Mastertrust Wholesale Australian Share Fund 4
Mastertrust Wholesale International Share Fund 1
Mastertrust Wholesale International Share Fund 2
Mastertrust Wholesale Property Securities Fund 1
Mastertrust Wholesale Property Securities Fund 2
Micropay Pty Limited
Midland Gate Partnership
Midland Trust
Milberry Trust
Mitchelton Vineyards Pty Ltd
Mitsubishi Motor Vehicle Fleet Lease Facility No.2 Partnership
Mitsubishi Motor Vehicle Fleet Lease Partnership
MMAL Fleet Lease Arranger Pty Limited
MTE Lessor 1 Pty Ltd
MTE Lessor 2 Pty Ltd
MTE Lessor 3 Pty Ltd
MTE Lessor 4 Pty Ltd
MTE Lessor 5 Pty Ltd
MTE Nominee Partner Pty Ltd
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MTE Debt Vehicle Pty Ltd
MTE Leasing Partnership
National Bank of Fiji Ltd
NEG Bayside Franchise Lease Partnership
NEG Swanston Franchise Lease Partnership
Newbridge Pty Limited
Nimitz Nominees Pty Ltd
Obbut Pty Limited
October Nominees Pty Limited
Officers Superannuation Fund
Onslow Properties Pty Ltd
Ozdaq Hi Tech Index Fund
P & B Properties Pty Ltd
Pacific View Business Park
Parramatta Xxxxxxx Unit Trust
Perpetual Stock Pty Limited
PFHL No 2 Super Fund
PFM Holdings Pty Limited
Pharmacy Finance Ltd
Pica Nominees Pty Ltd
PPS Nominees Pty Limited
PPTV Pty Ltd
Premier Financial Planning Group Ltd ( in liquidation)
Prime Investment Entity Limited
Private Property Syndicate Trust
Prudential Australian Agents Superannuation Scheme
Prudential Business Centre (SA) Pty Ltd
Prudential Business Centre (Vic) Pty Ltd
Prudential Staff Pension Scheme
PT Astra CMG Life (Indonesia)
PT Bank Commonwealth
Puerto Limited
Put Option Properties Limited
R1 Trust
Ranec Pty Limited
Retail Area Franchise financing Pty Ltd
Retail Investor Pty Limited
Riccarton Mall Trust
Roodhill Nominees Ltd
RVG Administration Company Pty Ltd
SA Government Motor Vehicle Fleet Security Trust
SBN Nominees Pty Ltd
SBN Staff Distress Fund Pty Ltd
SBNSW (Delaware) Inc
SBSBS Pty Ltd
SBT Properties Pty Limited
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SBV Asia Limited
SBV Nominees Limited
SBV Special Benefits Plan
SBV Staff Superannuation Pty Limited
Securitisation Advisory Services Pty limited
Securitisation Custodian Pty Limited
Securitisation Management Co Pty Limited (HFV6 Pty Ltd as of 15/7/02)
SEMCL - CBA Holds all units in SEMCL Unit Trust No.1
Senator House Investments (UK) Ltd
Senbary Pty Limited
SGIC Brand Pty Ltd
SGIC Personal Superannuation Fund
Share Direct Nominees Pty Limited
Share Investments Pty Limited
SIF Railway No.1 Pty Limited
South Australian Fleet Lease Arranger Pty Ltd
South Australian Government Motor Vehicle Fleet Partnership
Southbank Trust
Southcap Pty Ltd
Sovereign Limited
Sovereign Service Corporation (NZ) Limited
Sovereign Services (NZ) Limited
Sovereign Superannuation Trustees Limited
Sovereign Trustee Services (NZ) Ltd
Sparad (No 16) Pty Limited
Sparad (No 17) Pty Limited
Sparad (No 20) Pty Limited
Sparad (No 21) Pty Limited
Sparad (No 22) Pty Limited
Sparad (No 24) Pty Limited
Sparad (No 26) Pty Limited
Sparad (No 27) Pty Limited
Sparad (No 28) Pty Limited
Sparad (No 29) Pty Limited
Sparad (No 30) Pty Limited *
Sparad (No 31) Pty Limited
SPC1 Pty Ltd
SPC2 Pty Ltd
SPPS Discretionary Trust
SPPS Partnership
Spring Trust
State Bank of New South Wales Ltd
State Nominees Limited
Statebank Supersafe Approved Deposit Fund
Statutory Annuity Investments Fund
-52-
Statutory Cash Fund
Statutory Fixed Interest Fund
Xxxxxxx Xxxxx & Company (International) Ltd
Xxxxxxx Xxxxx & Company Ltd
Xxxxxxx Xxxxx Group ESOP Trustee Ltd
Xxxxxxx Xxxxx Holdings Ltd
Xxxxxxx Xxxxx Nominees Ltd
Xxxxxxx Xxxxx Unit Trust Managers Ltd
Xxxxxxx Xxxx Ltd
Super Partners Pty Ltd
Super Trustees of New Zealand Ltd
Superannuation & Investment Research Pty Ltd (SIR)
SuperChoice
SuperSelect
SuperTrace Eligible Rollover Fund
TAA (Comm) Leveraged Lease Partnership 1985
TAA Colonial Growth Trust
TAA Colonial Investment Account Trust
TAA Colonial Managed Trust
TAA Colonial Shareholder Trust
TAA Colonial Stable Trust
TAA Colonial Traditional Trust
Tactical Global Management Limited
TB Staff Superannuation Fund Pty Ltd
TFC Pty Ltd (not part of the Colonial Group)
The 210 Xxxxxxxxx Trust
The CFM Retirement Fund
The Colonial Financial Management Retirement Fund
The Colonial Group Pty Limited
The Colonial Mutual Life Assurance Society Ltd
The Colonial State Residual Discretionary Trust
The Colonial State Residual Unit Trust
The King Trust
The Xxxxx Street (No. 2) Unit Trust
The Xxxxx Street Holdings Trust
The Prudential Assurance Co. Ltd Pension Scheme
Tracker Index Management Limited
Trust Bank Staff Superannuation Fund
Vanoti Pty Ltd
Victoria Avenue Trust
Victorian Fleet Lease Arranger Pty Limited
Vodafone Australia Trust I
Vodafone Australia Trust II
Vodafone Australia Trust III
Westpac Plaza Partnership
Wezen Pty Ltd
-53-
Wilshire 10880 Corporation
Wilshire 10960 Corporation
Windsor Xxxxxxxxxxx Services Pty Ltd
Woolworths Float Trust
Yertabulti Pty Ltd
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TABLE OF CONTENTS
PAGE
1. Purchase and Sale....................................................3
2. Offering.............................................................3
3. Delivery and Payment.................................................3
4. Representations and Warranties.......................................4
I. Representations and Warranties of
the Issuer Trustee..........................................4
II. Representations and Warranties of
the CBA Parties.............................................6
III. Representations and Warranties of
the Manager.................................................9
5. Covenants and Agreements............................................11
I. Covenants and Agreements of the
Issuer Trustee.............................................11
II. Covenants and Agreements of the CBA
Parties....................................................12
III. Selling Restrictions.......................................16
IV. Manager Direction to Issuer Trustee........................18
V. Covenants and Agreements of the
Underwriters...............................................18
6. Conditions to the Obligations of the
Underwriters........................................................22
7. Indemnification and Contribution....................................24
8. Termination.........................................................29
9. Effectiveness of Agreement; Default of
Underwriters........................................................29
10. Expenses Upon Termination...........................................30
11. Successors..........................................................30
12. Certain Matters Relating to the Issuer
Trustee.............................................................30
13. Actions by Representative; Notices..................................31
14. Counterparts; Applicable Law........................................31
15. Submission to Jurisdiction..........................................31
16. Appointments of Process Agent.......................................32
17. Currency Indemnity..................................................33
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