PERPETUAL TRUSTEES AUSTRALIA LIMITED
PUMA GLOBAL TRUST NO. 1
U.S. $_____________ Class A Mortgage Backed Floating Rate Notes
U.S. $______________ Class B Mortgaged Backed Floating Rate Notes
UNDERWRITING AGREEMENT
[ ], 2001
Deutsche Banc Alex. Xxxxx Inc. ("Deutsche")
As Representative of the
Several Underwriters Listed
in Schedule I
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Perpetual Trustees Australia Limited (ABN 86 000 000 000), a limited liability
public company under the Corporations Law of New South Wales, Australia
("Perpetual") in its capacity as trustee of PUMA Global Trust No. 1 (the "Issuer
Trustee") proposes to sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representative (the
"Representative"), U.S.$ principal amount of Class A Mortgage Backed
Floating Rate Notes (the "Class A Notes") and U.S. $ principal amount
of Class B Mortgage Backed Floating Rate Notes (the "Class B Notes" and,
together with the Class A Notes, the "US$ Notes") issued by PUMA Global Trust
No. 1 (the "Trust"). Each US$ Note will be secured by the assets of the Trust.
The assets of the Trust include, among other things, a pool of variable and
fixed rate residential housing loans (the "Housing Loans") originated in the
name of Perpetual, in its capacity as trustee of the PUMA warehouse trust,
including all monies after the Closing Date (as defined herein) with respect to
payments of principal, interest and rights under certain insurance policies with
respect to the Housing Loans, any bank account held by the Issuer Trustee and
the rights of the Issuer Trustee under the Basic Documents. The Trust will be
created pursuant to the Trust Deed, dated July 13, 1990 as amended, modified or
supplemented from time to time (the " Trust Deed") between Perpetual and the
person referred to therein as the Founder and a sub-fund notice, to be dated
[ ] 2001 (the "Sub-Fund Notice"), from Macquarie Securitisation
Limited, ABN 16 003 297 336 (the "Manager") to the Issuer Trustee, which sets
forth specific provisions regarding the Trust and details the provisions of the
US$ Notes. The Note Trust Deed, dated [ ] (the "Note Trust Deed") by and
among the Issuer Trustee, the Manager and The Bank of New York, New York Branch
(the "Note Trustee") provides for the issuance and registration of the US$ Notes
in accordance with the terms and
conditions attached thereto. The Manager and Macquarie Bank Limited, ABN 46 008
583 542 ("Macquarie") are each a "Macquarie Party" and collectively are referred
to herein as the "Macquarie Parties." The assets of the Trust will also secure
under the Security Trust Deed among other things, any A$ Notes (as defined in
the Sub-Fund Notice) that may be issued after the Closing Date. 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, including a
prospectus, relating to the US$ Notes. The registration statement as amended at
the time when it became effective, or, if a post-effective amendment is filed
with respect thereto, as amended by such post-effective amendment at the time of
its effectiveness (including in each case information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430
or Rule 430A under the Securities Act) is referred to in this Agreement as the
"Registration Statement", and the prospectus in the form first used to confirm
sales of US $ Notes is referred to in this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean the Trust Deed, the
Sub-Fund Notice, the US$ Notes, the Security Trust Deed, the Note Trust Deed,
the Currency Swap (as defined in the Sub-Fund Notice), the Redraw Facility
Agreement (as defined in the Sub-Fund Notice) and the Agency Agreement (as
defined in the Sub-Fund Notice) and any other contract, agreement or instrument
which is or is to be entered into by any of the Macquarie Parties or the Issuer
Trustee on the Closing Date or otherwise in connection with any of the foregoing
or this Agreement. To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Prospectus.
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. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
Each of the Macquarie Parties and the Issuer Trustee hereby agree with the
Underwriters as follows:
1. Purchase and Sale.
(a) The Issuer Trustee, at the direction of the Manager, agrees to
sell the US$ 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 amount of US$ 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, the Manager will pay in
immediately available funds on the Closing Date to the
Underwriters the commissions payable under the letter
agreement relating to fees and expenses between the Manager
and the Representative, dated as of September 12, 2000 (the
"Fee Letter").
(c) Deutsche agrees to pay any expenses incurred by the Macquarie
Parties in connection with any "roadshow" presentation to
potential investors.
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2. Offering.
The Manager and the Issuer Trustee understand that the Underwriters intend to
make a public offering of their respective portions of the US$ Notes, upon the
terms specified in the Prospectus, as soon after the parties hereto have
executed and delivered this Agreement as in the judgment of the Representative
is advisable, provided that the Registration Statement has become effective
prior to the execution of this Agreement.
3. Delivery and Payment.
Payment for the US$ Notes shall be made no later than 12:00 noon, New York City
time on [ ], 2001, by wire transfer in immediately available funds to
the account specified by the Issuer Trustee to the Representative, or at such
other time on the same or such other date, not later than the fifth Business Day
thereafter, as the Representative 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 or London.
Payment for the US$ Notes shall be made against delivery to the nominee of The
Depository Trust Company ("DTC") for the account of the Representative 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$[ ]
in aggregate Principal Balance of US$ Notes, with any transfer taxes payable in
connection with the transfer to the Underwriters of the US$ Notes duly paid by
the Manager. The Book-Entry Notes will be made available for inspection by the
Representative at the office of Xxxxx, Xxxxx & Xxxxx, 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.
4. Representations and Warranties of the Macquarie Parties and the Issuer
Trustee.
I. Perpetual represents and warrants to each Underwriter and the Macquarie
Parties as of the date of this Agreement and as of the Closing Date,
and agrees with each Underwriter and the Macquarie Parties, that:
(a) since the respective dates as of which information is provided
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 the general affairs, business, prospects,
management, results of operations, or condition (financial or
otherwise) of Perpetual or the Trust except as disclosed in
the Prospectus, which is material in the context of the Issuer
Trustee performing its obligations and duties under the Notes
and each Basic Document to which it is or is to be a party;
(b) It has been duly incorporated and is validly existing as a
corporation under the laws of New South Wales, with the power
and authority (corporate and other) to conduct its business as
described in the Prospectus and to issue the US$ Notes and to
act as required by each Basic Document to which it is or is to
be a party and by law to comply with the requirements of any
legislation and subordinate legislation (including, without
limitation and to the extent relevant, any Consumer Credit
Code) and no other thing is required to be done
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(including without limitation the making of any filing or
registration) in order to issue the US$ Notes or to execute
and act as required by each Basic Document to which it is or
is to be a party;
(c) It 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
and in good standing would not have a material adverse effect
on the transactions contemplated herein or in the Basic
Documents;
(d) this Agreement has been duly authorized, executed and
delivered by the Issuer Trustee;
(e) the US$ Notes have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, they will
have been duly executed, authenticated, issued and delivered
and will constitute valid and binding obligations of the
Issuer Trustee, entitled to the benefits provided by the Note
Trust Deed and the Security Trust Deed, subject to general
principles affecting creditors rights and general principles
of equity. 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 by Perpetual, and, when executed and delivered by
it and, each of 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) It is not, nor with the giving of notice or lapse of time or
both will be, in violation of or in default under, its (i)
constitution or (ii) 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 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 herein or in
the Basic Documents; the issue and sale of the Notes and the
performance by it of all of the provisions of its 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 of
the Trust 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 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
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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, 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 US$ Notes by the
Underwriters;
(g) other than as set forth in or contemplated in the Prospectus,
there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of
Perpetual, threatened against or affecting the Issuer Trustee
or the Trust or, to which the Issuer Trustee is or may be a
party or to which the Issuer Trustee or any property of the
Trust is or may be the subject, (i) asserting the invalidity
of this Agreement or of any of the Basic Documents in relation
to the Issuer Trustee, (ii) seeking to prevent the issuance of
the US$ 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
United States Federal or Australian Federal or state income,
excise, franchise or similar tax attributes of the US$ Notes,
(iv) that could materially and adversely affect the
performance of the Issuer Trustee of its obligations under, or
the validity or enforceability of, this Agreement or any of
the Basic Documents against the Issuer Trustee 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 US$ Notes; and there are no contracts or
other documents to which it is a 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
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) to the Issuer Trustee's knowledge, no event has occurred which
would entitle the Manager to direct the Issuer Trustee to
retire as trustee of the Trust under clause 19 of the Trust
Deed;
(j) in the context of the issue of the US$ Notes to be issued to
persons other than residents of the United States of America,
the Prospectus is accurate in all material respects and does
not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the information
therein, in the light of the circumstances under which it is
given, not misleading and all reasonable inquiries have been
made to ascertain the accuracy of all such information;
(k) 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,
5
receiver and manager, administrator, provisional liquidator or
similar officer of it or of any or all of its assets;
(l) no stamp or other duty is assessable or payable, and, subject
to compliance with Section 128F of the Income Tax Assessment
Act (1936) (the "Australian Tax Act") in relation to payments
under the US$ 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 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 US$
Notes or the performance by the Issuer Trustee of any of its
obligations under the Basic Documents to which it is or is to
be a party or the US$ Notes except for any of the Basic
Documents on which nominal stamp duty is payable;
(m) the US$ 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
(n) 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 the fulfilment 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. The Manager represents and warrants to each Underwriter, as of the date
of this Agreement and as of the Closing Date, that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the
Securities Act, and did not contain an untrue statement of a
material fact or omit to state a 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; provided that this representation and warranty
shall not apply to any statements or omissions made in
reliance upon and in conformity with information relating to
any Underwriter furnished to the Manager in writing by such
Underwriter directly or through the Representative expressly
for use therein;
(b) the Registration Statement has been declared effective under
the Securities Act by the Commission; 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 the Registration Statement and Prospectus (as
amended or
6
supplemented if the Manager shall have furnished any
amendments or supplements thereto) comply, or will comply, as
the case may be, in all material respects with the Securities
Act and the Trust Indenture Act and do not and will not, as of
the applicable effective date as to the Registration Statement
and any amendment thereto and as of the date of the Prospectus
and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as
amended or supplemented, if applicable, at the Closing Date
will not contain any untrue statement of a material fact or
omit to state a material fact 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
Note 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 the Manager in writing by such
Underwriter directly or through the Representative expressly
for use therein, and (iii) the information under the heading
"Prepayment and Yield Considerations" in the Registration
Statement and the Prospectus;
(c) 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 the
general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the
Manager, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, which is material in the
context of the Manager performing its obligations and duties
under each Basic Document to which it is or is to be a party;
(d) the Manager is a corporation duly incorporated and validly
existing under the Corporations Xxx 0000 of the Commonwealth
of Australia, the Manager has the 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 to which it is a party and carry out the
transactions contemplated by such Basic Documents; the Manager
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 herein or in the Basic
Documents;
(e) this Agreement has been duly authorized, executed and
delivered by the Manager;
(f) each of the Basic Documents to which it is or is to be a party
has been duly authorized by it, the Note Trust Deed has been
duly qualified under the Trust Indenture Act and, when
executed and delivered by the Manager and each of the other
parties thereto, each of the Basic Documents will constitute a
legal,
7
valid and binding obligation of the Manager, enforceable
against the Manager 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 the
US$ Notes and the Basic Documents each will conform to the
descriptions thereof in the Prospectus;
(g) the Manager 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 herein or in the Basic Documents;
the issue and sale of the US$ Notes and the performance by the
Manager of all of the provisions of its obligations under the
US$ Notes, the Basic Documents and this Agreement and the
consummation of the transactions herein and therein
contemplated will not 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 the Manager is a
party or by which the Manager is bound or to which any of the
property or assets of the Manager is subject, nor will any
such action result in any violation of the provisions of the
constitution of the Manager or any applicable law or statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Manager, or any of
its properties; 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 US$ Notes or the consummation by the
Manager 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 US$ Notes
by the Underwriters;
(h) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the
Manager, threatened against or affecting the Manager or its
properties or, to which the Manager is or may be a party or to
which the Manager or any property of the Manager 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 US$ 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 United
States Federal or Australian income, excise, franchise or
similar tax attributes of the US$ Notes, (iv) that could
materially and adversely affect the performance of the Manager
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 US$ Notes or the marketability of the US$
Notes; and there are
8
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;
(i) the representations and warranties of the Manager contained in
the Basic Documents are true and correct in all material
respects;
(j) PricewaterhouseCoopers ("PWC") are independent public
accountants with respect to the Manager within the meaning of
the Securities Act;
(k) the Manager 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 the Manager 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 the Manager is in
compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the
Basic Documents;
(l) no event has occurred which would entitle the Manager to
direct Perpetual to retire as trustee of the Trust under
clause 19 of the Trust Deed;
(m) the Manager has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been
taken or legal proceedings been started or threatened against
the Manager 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;
(n) no stamp or other duty is assessable or payable, and, subject
to compliance with Section 128F of the Australian Tax Act in
relation to payments under the US$ 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-division of or authority therein or
thereof having power to tax in such jurisdiction, in
connection with the authorization, execution or delivery of
the Basic Documents to which it is to be a party or with the
authorization, execution, issue, sale or delivery of the US$
Notes and the performance of the Manager's obligations under
the Basic Documents to which it is to be a party and the US$
Notes except for any of the Basic Documents on which nominal
stamp duty is payable;
(o) no event has occurred or circumstances arisen which, had the
US$ Notes already been issued, would (whether or not with the
giving of notice and/or the
9
passage of time and/or the fulfilment of any other
requirement) constitute an Event of Default (as defined in the
Security Trust Deed).
III. Macquarie represents and warrants to each Underwriter, as of the date
of this Agreement and as of the Closing Date, that:
(a) Macquarie is a company incorporated in the Australian Capital
Territory;
(b) this Agreement has been duly authorized, executed and
delivered by Macquarie;
(c) the representations and warranties of Macquarie contained in
the Basic Documents are true and correct in all material
respects; and
(d) since the respective dates as of which information is provided
in the Registration Statement and the Prospectus, there has
been no material adverse change, or any development involving
a prospective material adverse change, in the condition
(financial or otherwise) of Macquarie, which is material in
the context of Macquarie performing its obligations and duties
under each Basic Document to which it is or is to be a party.
5. Covenants and Agreements.
I. The Manager covenants and agrees with each of the several Underwriters
as follows:
(a) to file, if required, the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A
under the Securities Act, and to furnish copies of the
Prospectus to the Underwriters, provided that the distribution
of such copies shall be at the Underwriters' expense, 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) to deliver, at the expense of the Manager, to the
Representative upon its request up to 5 signed copies of the
Registration Statement and each post-effective amendment
thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement and
each post-effective amendment thereto, in each case without
exhibits and, during the period mentioned in paragraph (e)
below, to each of the Underwriters, as many copies of the
Prospectus (including all amendments and supplements thereto)
as the Representative may reasonably request, provided that
the distribution of such copies shall be at the Underwriter's
expense;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, after the Registration Statement
became effective, 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) to advise the Representative promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration
Statement has been filed or becomes effective, (ii) when any
supplement to the Prospectus or any
10
amendment to the Prospectus has been filed and to furnish the
Representative with copies thereof, (iii) 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, (iv) 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 any preliminary prospectus or the
Prospectus or the initiation or threatening of any proceeding
for that purpose, (v) of the occurrence of any event, within
the period referenced in paragraph (e) 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
(vi) of the receipt by the Manager of any notification with
respect to any suspension of the qualification of the US$
Notes for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; 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 any
preliminary prospectus or the Prospectus, or of any order
suspending any such qualification of the US$ Notes, or
notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the US$ Notes as in the opinion of counsel
for the Underwriters a prospectus relating to the US$ 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 Manager, to the Underwriters
and to the dealers (whose names and addresses the
Representative will furnish to the Manager) to which US$ 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;
(f) to endeavour to qualify the US$ Notes for offer and sale under
the securities or Blue Sky laws of such states or territories
of the United States as the Representative shall reasonably
request and to continue such qualification in effect so long
as reasonably required for distribution of the US$ Notes;
provided that the Manager shall not be required to file a
general consent to service of process in any jurisdiction;
(g) to make generally available to the holders of the US$ 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
11
satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder;
(h) so long as the US$ Notes are outstanding, to furnish to the
Representative (i) copies of each certificate, the annual
statements 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 day preceding a Quarterly Payment
Date or as soon thereafter as practicable, notice by telex or
facsimile to the Representative of the Note Factor (as defined
in the note conditions set out in Schedule 2 of the Note Trust
Deed, the "Note Conditions") (iv) copies of all reports or
other communications (financial or other) furnished to holders
of the US$ 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 Manager as the
Representative may reasonably request;
(i) to the extent, if any, that the ratings provided with respect
to the US$ Notes by Xxxxx'x Investors Service, Standard &
Poor's Rating Group, A Division of The XxXxxx-Xxxx Companies,
Inc. and Fitch, Inc. (the "Rating Agencies") are conditional
upon the furnishing of documents or the taking of any other
action by the Manager, the Manager shall use its best efforts
to furnish such documents and take any other such action;
(j) to assist the Representative to make arrangements with DTC,
Euroclear and Clearstream, Luxembourg concerning the issue of
the US$ Notes and related matters;
(k) to not 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 US$ Notes not being
assigned the ratings referred to in Section 6(o) below; and
(l) to pay all fees, costs and expenses incident to the
performance of its obligations hereunder, including
commissions payable, in immediately available funds to the
Underwriters for the performance of their obligations under
this Agreement whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is
terminated, as set forth in the Fee Letter; provided that such
payments shall be made without prejudice to the rights or
remedies of the Manager related to any termination of this
Agreement.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the Macquarie Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from
the sale of the US$ Notes pursuant to this Agreement in the
manner specified in the Prospectus under the caption "Use of
Proceeds";
12
(b) to notify the Representative and the Macquarie Parties
promptly after it becomes actually aware of any matter which
would make any of its representations, warranties, agreements
and indemnities herein 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
or similar tax, fee or duty (including court fees) in relation
to the execution of, or any transaction carried out pursuant
to, the Basic Documents or in connection with the issue and
distribution of the US$ Notes or the enforcement or delivery
of this Agreement;
(d) to use all reasonable efforts to procure satisfaction on or
before the Closing Date of the conditions referred to in
Section 6 below 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, Luxembourg concerning the
issue of the US$ Notes and related matters;
(e) to cause the charges created by or contained in the Security
Trust Deed to be registered within all applicable time limits
in accordance with the Xxxxxxxxxx Xxxxxxxxxxxx Xxx 0000 (and
any regulations related thereto);
(f) to perform all 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 the 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 US$ Notes not being assigned the
ratings referred to in Section 6(o) below; and
(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.
6. Conditions to the Obligations of the Underwriters.
The several obligations of the Underwriters hereunder are subject to the
performance by the Macquarie Parties and the Issuer Trustee 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 shall have been
filed with the Commission pursuant to Rule 424(b) within the
applicable time period
13
prescribed for such filing by the rules and regulations under
the Securities Act and in accordance with Section 5(I)(a)
hereof; and all requests for additional information by the
Representative with respect thereto shall have been complied
with to the satisfaction of the Representative;
(b) the representations and warranties of the Macquarie Parties
and Perpetual 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 Macquarie
Parties in the Basic Documents will be true and correct on the
Closing Date; and each Macquarie Party and the Issuer Trustee
shall have complied with all agreements and all conditions on
its part to be performed or satisfied hereunder and under the
Basic Documents at or prior to the Closing Date;
(c) since the respective dates as of which information is given in
the Prospectus 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 each Macquarie Party, 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 US$
Notes on the Closing Date on the terms and in the manner
contemplated in the Prospectus;
(d) the Representative shall have received on and as of the
Closing Date a certificate of an executive officer of each
Macquarie Party, with specific knowledge about financial
matters of such Macquarie Party, satisfactory to the
Representative to the effect set forth in subsections (a)
through (d) of this Section;
(e) Xxxxxxx Xxx, Australian counsel for Macquarie and the Manager,
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;
(f) Xxxxxxx Xxx, Australian tax counsel for Macquarie and the
Manager 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;
(g) the Representative on or prior to shall have received letters,
dated the date thereof, from (i) PWC, in form and substance
satisfactory to the Representative and counsel for the
Underwriters, confirming that they are independent public
accountants within the Securities Act and the applicable rules
and regulations related thereto and stating in effect that
they determine 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
the Manager,
14
excluding any questions of legal interpretation, and (ii) PWC,
in form and substance satisfactory to the Representative and
counsel for the Underwriters, stating in effect that they have
performed certain specified proceedings with respect to the
Housing Loans to be acquired by the Trust on the Closing Date;
(h) Strook & Strook & Xxxxx 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 & Xxxxx, United States counsel for Macquarie and
the Manager, 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,
to the effect that:
(i) The Note Trust Deed has been duly qualified under the
Trust Indenture Act;
(ii) To the best of such counsel's knowledge, there are no
material contracts, indentures, or other documents of
a character required to be described or referred to
under either the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement other than those described or
referred to therein or filed or incorporated by
reference as exhibits thereto;
(iii) The Trust is not, and will not as a result of the
offer and sale of the US$ Notes as contemplated in
this Agreement, or as a result of the consummation of
the transactions contemplated by the terms of the
Basic Documents become, required to be registered as
an "investment company", under the Investment Company
Act of 1940, as amended;
(iv) No consent, approval, authorization or order of any
United States federal court or governmental agency or
body is required (i) for the consummation by
Macquarie or the Manager of the transactions
contemplated by the terms of the Basic Documents or
(ii) for the consummation of the transactions
contemplated by this Agreement in connection with the
issuance or sale of the US$ Notes by the Issuer
Trustee, except, in each case, (a) such as have been
obtained under the Securities Act and the Trust
Indenture Act and (b) such as may be required under
the blue sky laws of any jurisdiction in connection
with the purchase and the offer and sale of the US$
Notes, as to which such counsel will express no
opinion;
(v) The Registration Statement has become effective under
the Securities Act as of the date and time specified
in such opinion, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued or
threatened under Section 8(d) of the Securities Act;
15
(vi) The Registration Statement and the Prospectus, as of
their respective effective or issue date, other than
financial or statistical information contained
therein, complied as to form in all material respects
with the requirements of the Securities Act and the
applicable rules and regulations thereunder;
(vii) Such counsel shall have no reason to believe that the
Registration Statement, as of the effective date
thereof or as of the date of such opinion, contained
or contains any untrue statement of a material fact
or omitted or omits to state a material fact
necessary in order to make the statements therein not
misleading or that the final Prospectus, as of the
date thereof or as of the date of such opinion,
contained or contains any untrue statement of a
material fact or omitted or omits 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 that
such counsel shall express no opinion as to the
financial statements or other financial data
contained in the Registration Statement or the
Prospectus;
(viii) The statements in the Prospectus under the captions
"Description of the US$ Notes" and "Description of
the Transaction Documents and Parties" insofar as
they purport to summarize certain terms of the US$
Notes and the applicable Basic Documents, constitute
a fair summary of the provisions purported to be
summarized; and
(ix) To the extent that the execution and delivery of this
Agreement, is a matter to be determined under New
York law, this Agreement has been duly and validly
executed and delivered and constitute the legal,
valid and binding obligation of each of Macquarie,
the Issuer Trustee and the Manager, provided that
such counsel shall express no opinion regarding any
severability provision in this Agreement or regarding
the legal, valid and binding effect or the
enforceability of any indemnification provisions in
this Agreement to the extent that any such provisions
may be deemed to cover matters under the federal
securities laws.
(j) Xxxxx, Xxxxx & Xxxxx, United States federal income tax counsel
for Macquarie and the Manager, 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) Mallesons Xxxxxxx Xxxxxx, 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;
(l) Mallesons Xxxxxxx Xxxxxx, special Australian counsel for the
Note Trustee, shall have furnished to the Representative their
written opinion, dated the
16
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;
(m) Counsel to the 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;
(n) 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;
(o) at the Closing Date, (i) the Class A Notes shall have been
rated "AAA" by Standard & Poor's Ratings Services, A Division
of The XxXxxx-Xxxx Companies, Inc. and Fitch, Inc. and "Aaa"
by Xxxxx'x Investors Service, Inc., and (ii) the Class B Notes
shall have been rated ""AA-"" by Standard & Poor's Ratings
Services, A Division of The XxXxxx-Xxxx Companies, Inc. and
Fitch, Inc., as evidenced by letters from the Rating Agencies;
(p) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
(q) on or prior to the Closing Date, the Macquarie Parties and the
Issuer Trustee shall have furnished to the Representative such
further certificates and documents as the Representative shall
reasonably request.
7. Indemnification and Contribution.
(a) Each of Macquarie and the Manager, jointly and severally,
agrees to indemnify and hold harmless each Underwriter, each
affiliate of an Underwriter that assists such Underwriter in
the distribution of the US$ 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 Manager shall have furnished
any amendments or supplements thereto) (other than to the
extent any losses, claims, damages or liabilities arise as a
result of any information under the heading "Prepayment and
Yield Considerations"), 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 such losses, claims, damages
or liabilities are caused by any untrue statement or omission
or alleged untrue statement or omission made in reliance upon
and in conformity with information relating to any Underwriter
furnished to a Macquarie Party in writing by such
17
Underwriter directly or through the Representative expressly
for use therein or (ii) that such indemnity with respect to
the Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling any Underwriter) from
whom the person asserting any such loss, claim, damage or
liability purchased the US$ Notes which are the subject
thereof if such person did not receive a copy of the
Prospectus (as amended or supplemented) at or prior to the
confirmation of the sale of such US$ Notes to such person in
any case where such delivery is required by the Securities Act
and the untrue statement or omission of a material fact
contained in such Prospectus was corrected in the Prospectus
(as amended or supplemented);
(b) To the extent that any payment of damages by a Macquarie Party
pursuant to subsection 7(a) above is determined to be a
payment of damages pursuant to Prudential Standard APS 120
"Funds Management and Securitisation", paragraph 15 of
Guidance Note AGN 120.3, "Purchase and Supply of Assets
(including Securities issued by SPVs)", being 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 provision in any replacement of Prudential Standard
APS 120 "Funds Management and Securitisation").
(c) 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 Macquarie and each person that controls any of the
Macquarie Parties 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 Macquarie Parties or the Issuer Trustee to each
Underwriter, but only with reference to information relating
to such Underwriter furnished to a Macquarie Party in writing
by such Underwriter directly or through the Representative
expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto.
(d) 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 subsections (a) or (c) 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
18
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 US$
Notes, and such control persons of Underwriters shall be
designated in writing by the Representative and any such
separate firm for the Manager, its directors, its officers who
sign the Registration Statement, the Issuer Trustee and
Macquarie and such control persons of any of the Macquarie
Parties or the Issuer Trustee shall be designated in writing
by the Manager. 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 (d), the Indemnifying Person
agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by
such Indemnifying Person of the aforesaid request and (ii)
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.
(e) If the indemnification provided for in subsections (a) or (c)
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 Macquarie
Parties and the Issuer Trustee on the one hand, and the
Underwriters on the other, from the offering of the US$ Notes,
and (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
Macquarie Parties and the Issuer Trustee on the one hand, and
of 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 Macquarie Parties and the Issuer Trustee on the one hand,
and the Underwriters on the other, shall be deemed to be in
the
19
same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Macquarie
Parties and the Issuer Trustee and the total underwriting
discounts and the commissions received by the Underwriters in
respect thereof respectively bear to the aggregate public
offering price of the US$ Notes. The relative fault of the
Macquarie 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 the Macquarie Parties 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 Macquarie Parties, the Issuer Trustee and the Underwriters
agree that it would not be just and equitable if contribution
pursuant to this Section 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 (e) 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 US$
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 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 US$ 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.
(f) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the
Macquarie Parties, the Issuer Trustee and the Underwriters 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 Macquarie Parties or the Issuer Trustee, its
officers or directors or any other person controlling the
Macquarie Parties or the Issuer Trustee and (iii) acceptance
of and payment for any of the US$ Notes.
20
8. Termination.
Notwithstanding anything herein contained, this Agreement may be terminated in
the absolute discretion of the Representative, by notice given to the Manager,
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 the New York Stock Exchange, (ii) trading of any securities of or guaranteed
by any of the Macquarie Parties or the Issuer Trustee 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, Australia or London, England
shall have been declared by either United States Federal, New York State,
Commonwealth of Australia, New South Wales State or related 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 the Representative, is material and adverse and which, in the
judgment of the Representative, makes it impracticable to market the US$ 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 US$ Notes which it or they have agreed to purchase hereunder on such
date, and the aggregate principal amount of US$ 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 US$ Notes to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the principal amount of US$ Notes set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of US$
Notes set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as the Representative may specify, to purchase the US$
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 US$ 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 US$ Notes without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase US$ Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of US$ Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of US$ Notes to be purchased on such date, and arrangements
satisfactory to the Representative and the Manager for the purchase of such US$
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
Manager. In any such case either you 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.
21
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 Macquarie Parties or the
Issuer Trustee to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason any of the Macquarie Parties or the Issuer
Trustee shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, Macquarie agrees
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. Fee Letter.
Notwithstanding any term or provision herein in relation to fees and expenses,
any obligation of reimbursement of such fees or expenses by a Macquarie Party
shall be subject to, and where applicable, superceded by, the terms and
provisions of the Fee Letter.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process.
Each of the Macquarie Parties and the Issuer Trustee hereby submits to
the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
Macquarie Parties and the Issuer Trustee irrevocably appoints CT Corporation,
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
in the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service or process upon
such agent, and written notice of said service to it by the person servicing the
same to the address provided in Section 19, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
Macquarie Parties and the Issuer Trustee further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for so long as the US$ Notes remain outstanding.
The obligation of any of the Macquarie Parties or the Issuer Trustee in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in
a currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
each of the Macquarie Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
13. Foreign Taxes.
All payments to be made by the Issuer Trustee and the Macquarie Parties
hereunder shall be made without withholding or deduction for or on account of
any present or future taxes, duties or governmental charges whatsoever unless
the Issuer Trustee or such Macquarie Party, as applicable, is compelled by law
to deduct or withhold such taxes, duties or charges. In that event, the Issuer
Trustee or such Macquarie Party, as applicable, shall pay such additional
amounts as may be necessary in order that the net amounts received after such
22
withholding or deduction shall equal the amounts that would have been received
if no withholding or deduction had been made.
14. Waiver of Immunities.
To the extent that any of the Issuer Trustee or any of the Macquarie Parties or
any of their properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any respect thereof, from setoff or counterclaim, from
the jurisdiction of any court, from service or process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, the Issuer Trustee and each of the Macquarie Parties, as
applicable, hereby irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity and consents to such relief and enforcement.
15. Judgment Currency.
If any judgment or order in any legal proceeding against any of the Issuer
Trustee or any of the Macquarie Parties is given or made for any amount due
hereunder and such judgment or order is expressed and paid in a currency (the
"Judgment Currency") other than United States dollars and there is any variation
as between (i) the rate of exchange (the "Judgment Rate") at which the United
States dollar amount is converted into Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange (the "Market Rate") at which
the person to whom such amounts is paid (the "Payee") is able to purchase United
States dollars with the amount of the Judgment Currency actually received by the
holder, then the difference, expressed in United States dollars, between such
amount calculated at the Judgment Rate and such amount calculated at the Market
Rate shall be indemnified (a) if negative by the Issuer Trustee and the
Macquarie Parties, as applicable, to the Payee and (b) if positive by the Payee
to the Issuer Trustee and the Macquarie Parties, as applicable. The foregoing
indemnity shall constitute a separate and independent obligations of the Issuer
Trustee and the Macquarie Parties or the Payee, as the case may be, and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate or exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
16. Selling Restrictions.
(a) No prospectus in relation to the US$ Notes has been lodged
with, or registered by, the Australian Securities and
Investments Commission or the Australian Stock 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 US$ Notes or offer
the US$ Notes for sale or invite offers to purchase the US$
Notes to, a person, where the offer or invitation is received
by that person in Australia unless the minimum amount payable
to the relevant Underwriter for the US$ Notes, after
disregarding any amount paid or payable or lent by the
relevant Underwriter or any associate (as determined under
sections 10 to 17 of the Australian Corporations Act 2001) of
that Underwriter), on
23
acceptance of the offer by that person is at least A$500,000
(or the equivalent thereof in any other currency).
(b) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this
Agreement, it will offer the US$ Notes for sale, or invite or
induce offers to buy the US$ Notes, by:
(i) making the Prospectus available for inspection on a
Bloomberg source and inviting potential investors to
access the Prospectus available on the Bloomberg
source; or
(ii) making hard copies of the Prospectus for the US$
Notes available for collection from the 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 US$ Notes to, or
invite or induce offers for US$ Notes from:
(i) any associate of the Issuer Trustee or a Macquarie
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
Macquarie 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 US$ Notes specifying that
it has complied with section 16(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
US$ Notes; provided that no Underwriter shall be obliged to
disclose any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or
directive.
(e) Each Underwriter, severally and not jointly, represents and
agrees that it (i) has only offered or sold, and will only
offer or sell any US$ Notes in the United Kingdom to persons:
(1) whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their business or (2) to persons
whom it is reasonable to expect will acquire, hold, manage or
dispose of investments (as principal or agent) for the
purposes of their business except in circumstances that do not
constitute an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulation
1995, as amended, or the Financial Services Act, (ii) has
complied with and will comply with all applicable provisions
of the Financial Services Act with respect to anything done by
it in relation to the US$ Notes, in, from or otherwise
involving the United Kingdom, and (iii) has only issued or
passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of
the US$ Notes, other than any document which consists of, or
24
any part of, listing particulars, supplementary listing
particulars or any other document required or permitted to be
published by listing rules under Part IV of the Financial
Services Act, to a person who is a kind described in Article
11(3) of the Financial Services Act (Investment
Advertisements) (Exemptions) Order 1996, as amended, or is a
person to whom the document may otherwise lawfully be issued
or passed on.
(f) Each Underwriter, severally and not jointly, acknowledges that
no action has been taken to permit an offering of the US$
Notes in any jurisdiction outside the United States where any
action would be required to be taken 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 US$ Notes or has in its possession or
distributes the Prospectus or any other offering material, in
all cases at its own expense.
17. Certain Matters relating to the Issuer Trustee.
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 its capacity as Issuer Trustee of the Trust in respect of liabilities
arising under or in connection with this Agreement or the Trust 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 such liability. This limitation of the Issuer Trustee's
liability described in this Section applies despite any other provisions of this
Agreement 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 or the Trust.
The parties other than the Issuer Trustee 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 trustee of the Trust
or seek the appointment of a receiver (except in relation to the assets of the
Trust) or a liquidator, an administrator or any other 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).
The provisions of this clause 13 shall not apply to any obligation or liability
of the Issuer Trustee to the extent that it is not satisfied because under the
Trust Deed, this Agreement or any other Basic Document 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.
It is acknowledged that the Relevant Parties (as defined in the Note Conditions)
are responsible under the Basic Documents (as defined in the Trust Deed) 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
under the Basic Documents) will be considered fraudulent, negligent or a willful
default for the purpose of this Agreement to the extent to which the act or
omission was caused or contributed to by any failure by any Relevant Party or
any other person who provides services in respect of the Trust (other than a
person who has been delegated or appointed by the Issuer Trustee and for whom
the Issuer Trustee is responsible under the relevant Basic Document, but
excluding any Relevant Party) to fulfil its obligations relating to the Trust or
by any other act or omission of a Relevant Party or by any
25
other person who provides services in respect of the Issuer Trustee (other than
a person who has been delegated or appointed by the Issuer Trustee and for whom
the Issuer Trustee is responsible under the Basic Documents, but excluding any
Relevant Party).
18. Successors.
This Agreement shall inure to the benefit of and be binding upon the Macquarie
Parties, the Issuer Trustee, the Underwriters, each affiliate of any Underwriter
which assists such Underwriter in the distribution of the US$ 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 US$ Notes from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
19. Actions by Representative; Notices.
Any action by the Underwriters hereunder may be taken by the Representative on
behalf of the Underwriters, and any such action taken by the Representative
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 the Representative c/o [ ]; Attention:
[ ]. Notices to the Manager shall be given to it at Macquarie
Securitisation Limited, Level 23, 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000,
Xxxxxxxxx, Facsimile: x00 0 0000-0000, Attention: The Treasurer; to the Issuer
Trustee shall be given to it at c/o [ ], Attention: [ ], with a
copy to [ ], Attention: [ ]; and to Macquarie shall be given
to it x/x Xxxxxxxxx Xxxxxxxxxxxxxx Xxxxxxx, Xxxxx 00, 00 Xxxx Xxxxxx, Xxxxxx,
Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, Facsimile: x00 0 0000-0000, Attention: The
Treasurer.
20. 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.
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
MACQUARIE SECURITISATION LIMITED
By:
-------------------------------------
Name:
Title:
26
PERPETUAL TRUSTEES AUSTRALIA LIMITED
By:
-------------------------------------
Name:
Title:
MACQUARIE BANK LIMITED
By:
-------------------------------------
Name:
Title:
Accepted: [ ]
[ ]
[ ]
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
[ ]
By:
-----------------------------------
Name:
Title:
27
SCHEDULE I
UNDERWRITER PRINCIPAL AMOUNT OF US$
NOTES TO BE PURCHASED
Deutsche Banc Alex. Xxxxx Inc...................... [ ]
Credit Suisse First Boston Corporation............. [ ]
Xxxxxxx Xxxxx Barney Inc. ......................... [ ]
Total......................................
SCHEDULE II
List of Section 128F(9) Associates of the Issuer Trustee
Perpetual Trustee Company Limited
Perpetual Trustees Nominees Limited
ACT Nominees Limited
Perpetual Custodians Ltd
Perpetual Trust Services Limited
Hunter Nominees Pty Ltd
P. T. Limited
Perpetrust Nominees Pty Ltd
Perpetual Australia Property Services (NSW) Pty Ltd
Perpetual Service Network Pty Limited
Commonwealth Trustees Pty Limited
Investor Marketplace Limited
Perpetual Australia Property Services (Canberra) Pty Limited
Perpetual Australia Property Services (QLD) Pty Limited
Perpetual Australia Property Services (SA) Pty Limited
Perpetual Australia Pty Limited
Perpetual Investment Management Limited
Perpetual Nominees Limited
Perpetual Services Pty Limited
Perpetual Trustees S A Limited
Queensland Trustees Pty Limited
Perpetual Superannuation Limited
ASX Perpetual Registrars Limited
Australian Trustees Pty Limited
Australian Trustees Limited
Perpetual Assets Pty Ltd
Perpetual Asset Management Ltd
Perpetual Trustees Victoria Limited
Perpetual Executors Nominees Limited
Midway Nominees Pty Ltd
Perpetual Australia Property Services (VIC) Pty Limited
Perpetual Trustees Queensland Ltd
Perpetual Trustee Company (Canberra) Limited
Charleville Leasing Ltd
Perpetual Trustees W.A. Ltd
Perpetual Australia Property Services (WA) Pty Limited
Perpetual Custodians WA Pty Ltd
Terrace Guardians Ltd
Selwest Pty Ltd
Perpetual Trustees Consolidated Limited
Perpetual Nominees (Canberra) Limited
Perpetual Custodian Nominees Pty Ltd
Perpetual Victoria Nominees Pty Ltd
SCHEDULE III
List of Section 128F(9) Associates of the Macquarie Parties
A) List of Associates : Companies
The Abalflow Trust
Airport Motorway Infrastructure No. 1 Limited
Aldisa Nominees Pty Limited
Aleatory Pty Limited
Asia Resource Capital Limited
AUSFLEET Pty Limited
Australian Hotel Investment Pty Limited
B.E.S.T. Management Pty Limited
Bavian Pty Limited
Bittoorong Pty Limited
BOND STREET AUSTRALIA LIMITED
Airport Motorway Custodians Limited
Bond Street Custodians Limited
Bond Street Lease Management Pty Limited
BOSTON AUSTRALIA LIMITED
Boston Leasing Pty Limited
CAMPUS INTERNATIONAL HOLDINGS PTY LIMITED
Melbourne City Unilodge Pty Limited
Volatic Pty Limited
Volbing Pty Limited
CAMPUS INTERNATIONAL HOLDINGS TRUST
Berkeley Holdings Unit Trust
Berkeley Unit Trust
Canterbury Court Holdings Trust
Canterbury Court Unit Trust
Xxxxxxxxx Holdings Unit Trust
Xxxxxxxxx Unit Trust
Cazinon Pty Limited
Cemasta Pty Limited
Cenford Pty Limited
CHANNAR INVESTMENT NOMINEE PTY LIMITED
Pandrew Pty Limited
City Link Management Limited
Colanera Pty Limited
Colmoro Pty Limited
Crownlease Pty Limited
D-Auction Internet Pty Limited
Xxxxxx Pty Limited
EDIVISION INVESTMENTS PTY LIMITED (formerly Macquarie Australia Properties
Pty Limited)
Xxxxxxxxx.xxx Pty Limited
Financial Enrichment Pty Limited
Elytron Pty Limited
XXXXXX PTY LIMITED
Tryptic Pty Limited
GALANTHUS AUSTRALIA PTY LIMITED
Lindcraft Limited
Pebcorp Pty Limited
Renmix Pty Limited
Xxxxxxx Pty Limited
Galanthus Leasing Pty Limited
Gatesun Pty Limited
Gemata Pty Limited
Gondor Pty Limited
Hafling Pty Limited
Hills Motorway Management Limited
Horizon Energy Investment Management Limited
Indemco Pty Limited
Infrastructure Investment No. 2 Limited
Infrastructure Investments No. 1 Pty Limited
Kallerad Pty Limited
Kepile Pty Limited
Koorileah Pty Limited
Liana Pty Limited
MACFLEET Pty Limited
Mac Fund One Trust
MAC IT 2000 Pty Limited (formerly Aries Project Pty Limited)
Macquarie (Arncliffe) Pty Limited
MACQUARIE ACCEPTANCES LIMITED
BOND STREET INVESTMENTS PTY LIMITED
Macquarie Thirty-Fourth Aviation Leasing Pty Limited
Macquarie Thirty-Seventh Aviation Leasing Pty Limited
Macquarie Thirty-Third Aviation Leasing Pty Limited
CH4 Pty Limited
Chalce Pty Limited
Cilea Limited
Xxxxxxxx Pty Limited
VALCORA PTY LIMITED
Jevington Investments
Gasteria Limited
Xxxxxxx Pty Limited
GLORIOLE PTY LIMITED
Lanrod Pty Limited
Macquarie Nominees ACT Pty Limited
Hillsam Nominees Pty Limited
Idameneo (No. 31) Pty Limited
MACQUARIE ASSET MANAGEMENT LIMITED
Coldava Limited
Jubilee Pty Limited
Macquarie Deposits Pty Limited
Macquarie Information Technology Pty Limited
MACQUARIE NZ HOLDINGS LIMITED
MACQUARIE GROUP NEW ZEALAND LIMITED
MACQUARIE NEW ZEALAND LIMITED
Macquarie Equities New Zealand Limited
Macquarie Property (NZ) Limited
New Zealand Cash Management Trust Limited
Macquarie PH (UK) Limited
Parsees Pty Limited
Telbane Pty Limited
Totara Pty Limited
Tywyn Pty Limited
Macquarie Asset Services (Qld) Pty Limited
Macquarie Asset Services (Vic) Pty Limited
MACQUARIE AUSTRALIA PTY LIMITED
Macquarie Investment (Hong Kong) Limited
Sucette Pty Limited
Macquarie Bank Superannuation (No. 2) Pty Limited
Macquarie Bank Superannuation Pty Limited
MACQUARIE DIRECT INVESTMENT LIMITED
Macquarie Direct Investment A Limited
Macquarie Direct Investment B Limited
Macquarie Factoring Limited
Macquarie First Aviation Leasing Pty Limited
Macquarie Funds Management Limited
MACQUARIE INVESTMENT MANAGEMENT LIMITED
Macquarie-IMM Investment Management Limited
Macquarie Lease Management Pty Limited
Macquarie Lease Nominees Pty Limited
MACQUARIE LEASING QLD PTY LIMITED
Gabija Pty Limited
Riverut Pty
Limited
Macquarie Leasing Vic. Pty Limited
Macquarie Mortgage Management Pty Limited
Macquarie Office Management Limited
Macquarie Property Services Pty Limited
Macquarie Risk Management Pty Limited
Macquarie Thirteenth Aviation Leasing Pty Limited
Macquarie Thirty-Ninth Aviation Leasing Pty Limited
Macquarie Twelfth Aviation Leasing Pty Limited
Macquarie Twentieth Aviation Leasing Pty Limited
Macquarie Twenty-Eighth Aviation Leasing Pty Limited
Macquarie Twenty-Seventh Aviation Leasing Pty Limited
Macquarie Twenty-Third Aviation Leasing Pty Limited
MBL Realty Investment Management Pty Limited
Memnon Pty Limited
Olary Pty Limited
Oxton Pty Limited
RISK AVERSE MONEY MANAGERS PTY LIMITED
Australian Index Money Managers Limited
Tankerton Pty Limited
Teynham Pty Limited
Therfield Pty Limited
Thonock Pty Limited
Macquarie Admin Services Pty Limited
Macquarie Airports (UK) Limited
Macquarie Alliances Pty Limited
MACQUARIE ASIA HOLDINGS PTY LIMITED
MACQUARIE INDONESIA HOLDINGS PTY LIMITED
PT Macquarie Konsultan Indonesia
Macquarie (Asia) Pte Limited
Macquarie Asia Limited
Macquarie Asiawide Management Limited
Macquarie Asset Services (ACT) Pty Limited
Macquarie Asset Services (WA) Pty Limited
Macquarie Asset Services Limited
Macquarie Australia Corporate Finance Limited
MACQUARIE AUSTRALIA (HK) LIMITED
Macquarie Pacific Management Limited
Macquarie Australia Infrastructure Pty Limited
Macquarie Australia Lease Management Pty Limited
Macquarie Australia Management Services Pty Limited
Macquarie Australia Securities Limited
Macquarie Australia Technology Pty Limited
Macquarie Business Broking Services Pty Limited (formerly XXXX Nominees Pty
Limited)
Macquarie Capital Markets Nominees Pty Limited
MACQUARIE COMMERCIAL LEASING VIC. PTY LIMITED
Softwood View Pty Limited
Macquarie Computer Leasing Pty Limited
Macquarie Corporate Finance (UK) Limited
Macquarie Corporate Finance (USA) Inc.
Macquarie CountryWide Management Limited
Macquarie Development Capital Pty Limited (formerly Macquarie Pooled
Development Pty Limited)
Macquarie Development Direction Pty Limited
Macquarie Direct Property Management Limited
Principle Holdings No. 2 Pty Limited
Macquarie Distribution Pty Limited
MACQUARIE DIVERSIFIED PORTFOLIO INVESTMENTS PTY LIMITED
MACQUARIE DIVERSIFIED INVESTMENTS LIMITED PARTNERSHIP
Macquarie Diversified Investment Services Pty Limited
Macquarie Domestic Hedge Fund Management Limited
Macquarie Equipment Finance Pty Limited
Macquarie Equities (Asia) Limited
MACQUARIE EQUITIES (AUSTRALIA) LIMITED
Buttonwood Nominees Pty Limited
Nanway Nominees Pty Limited
Upmill Nominees Pty Limited
Woodross Nominees Pty Limited
MACQUARIE EQUITIES LIMITED
Belike Nominees Pty Limited
Dexin Nominees Pty Limited
Elise Nominees Pty Limited
Equitas Nominees Pty Limited
Idameneo (No. 79) Nominees Pty Limited
Macquarie Securities (Asia) Pte Limited
Rema Nominees Pty Limited
Macquarie Equity Capital Markets Limited
MACQUARIE EQUITIES (US) HOLDINGS PTY LIMITED
Macquarie Equities Brasil Limitada
MACQUARIE HOLDINGS (USA) INC.
Macquarie Brasil Limitada
Macquarie (Delaware) Inc.
Macquarie Equities (USA) Inc.
MACQUARIE INC.
Macquarie Futures Inc.
MACQUARIE EUROPEAN HOLDINGS PTY LIMITED
Macquarie Equities (UK) Limited
MACQUARIE FINANCE LIMITED
Macquarie Syndication (No. 4) Pty Limited
Macquarie Finance (NZ) Limited
Macquarie Financial Products Management Limited
Macquarie Fleet Finance Pty Limited
Macquarie Fleet Leasing Pty Limited
Macquarie Fourteenth Aviation Leasing Pty Limited
Macquarie Funds Management (Hong Kong) Limited
Macquarie (HK) Financial Services Limited
Macquarie IB Limited
Macquarie Implemented Property Service Limited
Macquarie Infrastructure Debt Management Limited
Macquarie Infrastructure Funds Management Limited
MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED
AMT Management Limited
Macquarie International Capital Markets Limited
Macquarie International Limited (FORMERLY MACQUARIE SECURITIES (UK)
LIMITED)
Macquarie Finance (UK) Limited
Macquarie International Property Services Pty Limited
Macquarie Investment Services Limited
Macquarie Korea Co. Limited
MACQUARIE LEASING NSW PTY LIMITED
Acuba Pty Limited
Macquarie Leasing Pty Limited
Macquarie Leasing (NZ) Limited
Macquarie Leasing (UK) Limited
Macquarie Leisure Management Limited
Macquarie Life Limited
Macquarie Mortgages Pty Limited
Macquarie N.T. Leasing Pty Limited
Macquarie Options Pty Limited
Macquarie Photonics Pty Limited
Macquarie Portfolio Services Pty Limited
Macquarie PRISM Pty Limited
Macquarie Private Portfolio Management Limited
Macquarie Private Wealth Management Pty Limited
Macquarie Project Finance Pty Limited
Macquarie Property Development Finance Limited (formerly Macquarie
Resources Investment Management Limited)
MACQUARIE PROPERTY INTERNATIONAL PTY LIMITED
MACQUARIE PROPERTY CHINA PTY LIMITED
Macquarie (Tianjin) Property Services Co. Limited
Sedulous Investments Pty Limited
Macquarie Property Finance Limited
Macquarie Property Management (International) Limited
Macquarie Property (OBU) Pty Limited
Macquarie R&D No. 1 Pty Limited
Macquarie R&D No. 7 Pty Limited
Macquarie Realty Services Pty Limited
Macquarie Risk Management Advisory Pty Limited
MACQUARIE SCIENCE HOLDINGS LIMITED
Anti-Asthma R&D Pty Limited
Ensenaba Pty Limited
Garachine Pty Limited
Kayoota Pty Limited
Sucrafeed No. 1 Pty Limited
Sucrafeed No. 2 Pty Limited
MACQUARIE SECURITIES LIMITED
OJAI HOLDINGS LIMITED
Macquarie I.T. (NZ) Limited
Macquarie Securities Management Pty Limited
MACQUARIE SECURITISATION (HONG KONG) LIMITED
Mortgage Express Limited (formerly Smartloan Limited)
Macquarie Securitisation Limited
Macquarie Services (Hong Kong) Limited
Macquarie Specialised Asset Management 2 Limited (formerly Adelaide O Bahn
Limited)
Macquarie Specialised Asset Management Limited
Macquarie Strata Services Pty Limited
Macquarie Structured Equities Pty Limited
Macquarie Syndicate Management Pty Limited (formerly Macquarie Springthorpe
Syndicate Pty Limited)
Macquarie Syndicate Nominee Pty Limited
Macquarie Syndication (No. 7) Pty Limited
Macquarie Syndication (No. 12) Pty Limited
Macquarie Syndication (No. 22) Pty Limited
MACQUARIE TECHNOLOGY GROUP PTY LIMITED
MACQUARIE TECHNOLOGIES (MALAYSIA) SDN BHD
Macquarie IT Sdn Bhd (formerly Macquarie (Ventures) Sdn Bhd)
Macquarie Technology Investments Limited
Macquarie Technology Ventures Nominee Pty Limited (formerly MTIB Nominees
Pty Limited)
Macquarie Technology Ventures Pty Limited (formerly Macquarie Technology
Funds Management Pty Limited)
Macquarie Tourism & Leisure Pty Limited
Macquarie Treasury Management Limited
Macquarie Treasury Nominees Pty Limited
Macquarie Treasury Private Trustee Company Limited
MACQUARIE TWENTY-NINTH AVIATION LEASING PTY LIMITED
Macquarie Corporate Finance Limited
Airport Motorway Infrastructure No. 3 Limited
Airport Motorway Infrastructure No. 4 Limited
Bulwer Island Cogen Holdings Limited
Bulwer Island Cogen Limited
Macquarie Africa (Proprietary) Limited
Macquarie Asset Finance Limited
Macquarie Aviation (No. 1) Limited
Macquarie Corporate Finance International Limited
Macquarie (Hong Kong) Limited
Macquarie France Holdings Pty Limited
MACQUARIE (INDIA) PRIVATE LIMITED
Macquarie (India) Corporate Finance Private Limited
Macquarie Infrastructure Limited
Macquarie Infrastructure No. 2 Limited
Macquarie Infrastructure No. 4 Limited
Macquarie IT Korea Limited
MACQUARIE (JAPAN) LIMITED
MJL Ace Limited
MJL Bay Limited
Macquarie (Malaysia) Sdn Bhd
Macquarie North America Limited
Tadina Pty Limited
Tegny Pty Limited
Tenata Pty Limited
Macquarie Vue Nominee Pty Limited
MAIL HOLDINGS LIMITED
CASL Financial Services Pty Limited
MACQUARIE AUSTRALIA INTERNATIONAL LIMITED
CASL Nominees Pty Limited
Macquarie Risk Advisory Services Limited
Margin Lending Nominees Pty Limited
MAST Management Limited
MCF Leasing Pty Limited
MECML Nominees Pty Limited
Melbourne Airlink Pty Limited (formerly Melbourne Rail Transit Limited)
Merit Management No. 1 Pty Limited
Merit No. 1 Pty Limited
Metropolitan Transit Limited
Oarale Pty Limited
Pacific Rim Operations Limited
PARAY PTY LIMITED
Macquarie Syndication (No. 23) Pty Limited
Placate Pty Limited
PUMA Management Pty Limited
Q Rent Pty Limited
Residco Pty Limited
Royal Parade Apartments Pty Limited
Rugarno Pty Limited
Sanlucar Pty Limited
Santorini One Pty Limited
SECURE Australia Management Pty Limited
Secure Australia II Limited
South Coast Motorway Limited
Southern Motorway Pty Limited
SPAL Limited
Structured Prime Asset Receivables (SPARS) No.1 Pty Limited
Subscriber Television Asset Rentals Pty Limited
SYNDICATED ASSET MANAGEMENT PTY LIMITED
RP Developments Pty Limited
Talamba Pty Limited
Taralie Pty Limited
Tegensee Pty Limited
TERRITORY AIRPORT LIMITED
Xxxxx Airport Limited
Xxxxxxx Airport Limited
Territory Airport Management Limited
The Victorian Rolling Stock Leasing Company Limited
TranSA Pty Limited (formerly Himakin Pty Limited)
TranSA Services Pty Limited
URBAN PACIFIC LIMITED
Alloca (No. 4) Pty Limited
Kensington Banks Pty Limited
Mont Park Development Company Pty Limited
SMR Developments Pty Limited
UPL Developments Pty Limited
UPL (SA) Pty Limited
UPL (WA) Pty Limited
Urban Pacific Springthorpe Investment Pty Limited
Vue Apartments Pty Limited
UTOPIA PTY LIMITED
CORPORATE CAPITAL EQUIPMENT FINANCING PTY LIMITED
Decally Pty Limited
Fragola Pty Limited
Mendlesham Corporation Pty Limited
Naysin Pty Limited
Old Brampton Corporation Pty Limited
Ophidian Pty Limited
Ornate Pty Limited
Poltava Pty Limited
PRAEN PTY LIMITED
Grosvenor Office Equipment Hire Pty Limited
Reconnoitre Pty Limited
Residium Pty Limited
Resinal Pty Limited
Second Resinal Pty Limited
Dalou Pty Limited
Fortescue Gardens Pty Limited
Rovenda Pty Limited
Rovny Pty Limited
Samspin Limited
Shadoof Pty Limited
Thoresby Pty Limited
Vanne Pty Limited
VicWire Partnership Pty Limited
Wealth Nominees Pty Limited (formerly Macquarie Latin America OBU Investment
Management Pty Limited)
Wuxta Pty Limited
Zoffanies Pty Limited
B) List of Associates : Joint Ventures / Partnerships
Soap Joint Venture
Canberra Technology Partnership No.1
Canberra Technology Partnership No.2
QLD Technology P'Ship No.1
Trading Room Pty Limited
000 Xxxxxxx Xxxxxx Trust
Artsim Pty Limited
AMMB Asset Management (Malaysia)
AMMB Investment Services (Malaysia)
The Cannery Unit Trust
China Housing Investment Fund Xx. 0
XXX Xxxxxxxx Xxxxxxxxxxx Xxxx Xx. 0 P/L
Innofin Pty Limited
Macquarie Xxxxxxx Management Limited
Medallist Golf Development Trust
Medallist Holdings Inc. (USA)
Mining Equipment Company Pty Limited
Securiclear Pty Limited
South African Infrastructure Funds Managers (Proprietary) Limited (South
Africa)
Tasman Economics Pty Limited
OMNI Investments Pty Limited
Macquarie Capital Partners LLC
MP Management LLC (c)
Macquarie Private Trustee Limited
Macquarie Construction Investment Consulting and Management Co. Limited
(China)
Austian (Tianjin) Property Development Co. Limited (China)
Tianjin Macquarie Property Development Management Co. Limited (China)
Shanghai AMP Property Company Limited (China)
Edenbrooke Pty Limited
Springthorpe Syndicate
xxxxxxxxxx.xxx.xx Limited
TABLE OF CONTENTS
1. Purchase and Sale...................................................................................2
2. Offering............................................................................................3
3. Delivery and Payment................................................................................3
4. Representations and Warranties of the Macquarie Parties and the Issuer Trustee......................3
5. Covenants and Agreements...........................................................................11
6. Conditions to the Obligations of the Underwriters..................................................14
7. Indemnification and Contribution...................................................................19
8. Termination........................................................................................22
9. Effectiveness of Agreement; Default of Underwriters................................................22
10. Expenses upon Termination..........................................................................23
11. Fee Letter.........................................................................................23
16. Selling Restrictions...............................................................................25
17. Certain Matters relating to the Issuer Trustee.....................................................27
18. Successors.........................................................................................27
19. Actions by Representative; Notices.................................................................28
20. Counterparts: Applicable Law.......................................................................28
Schedule I.
Schedule II...............................................................................................
Schedule III..............................................................................................
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