Exhibit 1.1
Execution Copy
US$1,000,000,000 Class A-1
(Euro) 308,400,000 Class A-3
NATIONAL RMBS TRUST 2004-1
Mortgage Backed Floating Rate Notes, Series 2004-1
UNDERWRITING AGREEMENT
September 21, 2004
Deutsche Bank Securities Inc.
As Representative of the
Several Underwriters Listed
in Schedule 1
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Perpetual Trustee Company Limited (ABN 42 000 001 007), acting in its
capacity as trustee (the "Issuer Trustee") of the National RMBS Trust 2004-1
(the "Trust"), acting at the direction of National Global MBS Manager Pty Ltd
(ABN 36 102 668 226), a company incorporated in Australia, as manager of the
Trust (the "Global Trust Manager"), proposes to sell to the several
Underwriters listed in Schedule 1 to this Agreement (the "Underwriters"), for
whom Deutsche Bank Securities Inc. is acting as representative (the
"Representative"), US$1,000,000,000 aggregate principal amount of Class A-1
Mortgage Backed Floating Rate Notes, Series 2004-1 (the "Class A-1 Notes") and
(Euro) 308,400,000 aggregate principal amount of Class A-3 Mortgage Backed
Floating Rate Notes, Series 2004-1 (the "Class A-3 Notes" and, together with
the Class A-1 Notes, the "Notes") issued by the Issuer Trustee. The Issuer
Trustee also proposes to issue A$500,000,000 principal amount of Class A-2
Mortgage Backed Floating Rate Notes, Series 2004-1 (the "Class A-2 Notes") and
A$18,000,000 principal amount of Class B Mortgage Backed Floating Rate Notes
(the "Class B Notes" and, together with the Class A-2 Notes, the "A$ Notes")
which are not being sold to the Underwriters pursuant to this Agreement. The
Global Trust Manager is a wholly-owned indirect subsidiary of National
Australia Bank Limited (ABN 12 004 044 937), a company incorporated in
Australia (the "National"). To the extent not defined herein, capitalized
terms used herein have the meanings assigned to such terms in the National
Mortgage Securities Trusts Definitions Schedule, dated January 3, 2001 (the
"Definitions Schedule"), by and among the Issuer Trustee, the Global Trust
Manager, P.T. Limited (the "Security Trustee"), as amended by the global
amending deed dated on or about
September 28, 2004 (the "Global Amending Deed") between, among others,
those parties or in the Supplemental Deed (defined below) in respect of the
Trust. To the extent of any disagreement between defined terms, the
Supplemental Deed shall take precedence over the Definitions Schedule, and
this Agreement shall take precedence over the Supplemental Deed.
The Notes will be secured principally by a pool of residential mortgage
loans secured by properties located in Australia (the "Mortgage Loans"). The
National, as seller (in such capacity, the "Seller"), will equitably assign
the Mortgage Loans to the Issuer Trustee. The Mortgage Loans will be serviced
for the Issuer Trustee by the National (the "Servicer").
The Trust was created pursuant to a master trust deed dated as of
January 3, 2001 (as amended by the Global Amending Deed, the "Master Trust
Deed"), between the Global Trust Manager and the Issuer Trustee, and a
supplemental deed dated on or about September 28, 2004 (the "Supplemental
Deed"), among the National (as Seller and Servicer), the Global Trust Manager,
the Issuer Trustee and the Security Trustee, and a Notice of Creation of Trust
between the Global Trust Manager and the Issuer Trustee dated as of September
22, 2004. The Notes will be issued pursuant to a Note Trust Deed to be dated
on or about September 28, 2004 among the Issuer Trustee, the Global Trust
Manager and The Bank of New York, New York (the "Note Trustee").
The Global Trust 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 on Form S-3 (No. 333-64124), including a form of preliminary
prospectus supplement and prospectus, for registration of the Notes under the
Securities Act and has filed such amendments thereto and will file such
additional amendments thereto and such amended prospectuses and prospectus
supplements as may hereafter be required. Such registration statement in the
form in which it first became effective and as amended or supplemented
thereafter (if applicable) is herein referred to as the "Registration
Statement". The form of base prospectus included in the Registration Statement
as most recently filed with the Commission is referred to as the "Base
Prospectus" and the form of the prospectus which includes the Base Prospectus
and a prospectus supplement describing the Notes and the offering thereof (the
"Prospectus Supplement") which prospectus is first filed on or after the date
of this Agreement in accordance with Rule 424(b) is referred to in this
Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean collectively:
the Master Trust Deed (in so far as it applies to the Trust), the Supplemental
Deed in respect of the Trust, the Notes, the Master Security Trust Deed (in so
far as it applies to the Trust), the Deed of Charge in respect of the Trust,
the Servicing Agreement (insofar as it applies to the Trust), the Note Trust
Deed in respect of the Trust, the Agency Agreement in respect of the Trust,
the Sale Agreement and the Offer to Sell in respect of the Trust, the
Definitions Schedule, the Basis Swap Agreement in respect of the Trust, the
Fixed Rate Swap Agreement in respect of the Trust, the US$ Class A-1 Currency
Swap and (Euro) Class A-3 Currency Swap in respect of the Trust, the Redraw
Facility Agreement in respect of the Trust, the Liquidity Facility Agreement
in respect of the Trust, any document in connection with, or evidencing a
Support Facility in respect of the Trust, any other document which is agreed
to by the Global Trust Manager and the Issuer
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Trustee to be a Transaction Document in relation to the Trust under the
Supplemental Deed, the DTC Letter of Representations, any undertakings given
to Euroclear or Clearstream, Luxembourg in connection with the Notes, any
agreement, instrument or undertaking entered into by the Issuer Trustee or any
National Party (as defined below) in connection with the listing of the Notes
on the Luxembourg Stock Exchange and any other contract, agreement or
instrument in connection with the issuance and sale of the Notes. The National
and the Global Trust Manager are each a "National Party" and collectively are
referred to as the "National Party" or the "National Parties."
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Trust only, and in no
other capacity, and a reference to the assets, business, property, undertaking
or other things of or in relation to the Issuer Trustee, unless otherwise
stated, is a reference to the assets, business, property, undertaking or other
things of or in relation to the Issuer Trustee in that capacity only.
In this Agreement, a reference to any representation, warranty,
covenant, undertaking or indemnity by the National or the Global Trust Manager
shall be construed such that a clear distinction exists between the National
and the Global Trust Manager in respect of any obligations in accordance with
Australian Prudential Regulation Authority AGN 120.1.
Each of the National Parties and the Issuer Trustee hereby agrees with
the Underwriters as follows:
1. Purchase and Sale.
(a) The Issuer Trustee, at the direction of the Global Trust Manager,
agrees to sell, and the Global Trust Manager agrees to direct the Issuer
Trustee to sell, the Notes to the several Underwriters as hereinafter
provided, and each Underwriter, upon the basis of the representations,
warranties and agreements herein contained, but subject to the terms and
conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Issuer Trustee, the respective principal amounts of
the Notes as set forth opposite each Underwriter's name in Schedule 1
hereto at a price equal to 99.865% of their principal amount (which
amount may be made net of the commissions payable to the Underwriters or
such commissions may be paid to the Underwriters as a separate payment,
as the Representative and the National Parties shall agree).
(b) The Underwriters agree to pay for any expenses incurred by the
National Parties in connection with any "roadshow" presentation to
potential investors.
2. Offering. The National Parties and the Issuer Trustee understand that
the Underwriters intend to make a public offering of their respective
portions of the Notes upon the terms set forth in the Prospectus, as
supplemented by the Prospectus Supplement, as soon after the parties
hereto have executed and delivered this Agreement, as in the judgment of
the Representative is advisable.
3. Delivery and Payment. Payment for the Notes shall be made by wire
transfer in immediately available funds to the account specified by the
Issuer Trustee to the Representative no later than 12:00 noon, New York
City time on September 28, 2004, or at such other time on the same or
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such other date, not later than the seventh Business Day thereafter, as the
Representative, the Issuer Trustee and the Global Trust 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, Melbourne and London.
Payment for the Class A-1 Notes shall be made upon deposit with the Note
Trustee as custodian for DTC and registered in the name of Cede & Co. as
nominee for 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 $1,000,000,000 in
aggregate Invested Amount of Class A-1 Notes. The Book-Entry Notes will be
made available for inspection by the Representative at the offices of Sidley
Xxxxxx Xxxxx & Xxxx LLP at 000 Xxxxxxx Xxxxxx, 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 the book-entry facilities of the DTC, except in
limited circumstances described in the Prospectus.
Payment for the Class A-3 Notes shall be made upon deposit with the Note
Trustee as common depository for the Euroclear Bank S.A./N.V. as operator of
the Euroclear System ("Euroclear") and Clearstream Banking, societe anonyme
("Clearstream, Luxembourg") and registered in the name of The Bank of New York
as nominee for Euroclear and Clearstream for the account of the Representative
and for the respective accounts of the several Underwriters of one or more
Book-Entry Notes representing (Euro) 308,400,000 in aggregate Invested Amount
of Class A-3 Notes.
4. Representations and Warranties of the Issuer Trustee and the National
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter and the
National Parties, as of the date of this Agreement and as of the Closing Date,
and agrees with each Underwriter and the National Parties, that:
(a) since the respective dates as of which information is provided in
the Prospectus and the related Prospectus Supplement, there has not been
any material adverse change or any development involving a prospective
material adverse change in or affecting the general affairs, business,
prospects, management, or results of operations, condition (financial or
otherwise) of the Issuer Trustee or the Trust except as disclosed in the
Prospectus or the related Prospectus Supplement which is material in the
context of performing the Issuer Trustee's obligations and duties under
the Notes and each Basic Document to which it is or is to be a party;
(b) the Issuer Trustee has been duly incorporated and is validly
existing as a corporation under the Corporations Xxx 0000 (Cth) of the
Commonwealth of Australia, with power and authority (corporate and
other) to conduct its business as described in the Prospectus, and to
enter into and perform the Issuer Trustee's obligations under this
Agreement and the Basic Documents and the Issuer Trustee 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
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have such power and authority or to be so qualified or in good standing
would not individually or in the aggregate have a material adverse
effect on the transactions contemplated herein or in the Basic
Documents;
(c) the Issuer Trustee has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by the Issuer Trustee, and, when
the Notes have been issued (and duly authenticated by the Note Trustee),
delivered and paid for pursuant to this Agreement, they will constitute
valid and binding obligations of the Issuer Trustee entitled to the
benefits of the Note Trust Deed and the Master Security Trust Deed,
subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors rights generally and
to general equitable principles;
(e) the execution, delivery and performance by the Issuer Trustee 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 the Issuer Trustee and,
when executed and delivered by it and each of the other parties thereto,
each of the Basic Documents to which it is a party 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) the Issuer Trustee is not, nor with the giving of notice or lapse of
time or both will be, in violation of or in default under: (i) its
constitution or (ii) any indenture, mortgage, deed of trust, deed to
secure debt, loan agreement or other agreement or instrument to which it
is a party or by which it or any of its properties is bound, except for
violations and defaults which individually and in the aggregate would
not have a material adverse effect on the transactions contemplated in
the Basic Documents;
(g) the issue and sale of the Notes and the performance by the Issuer
Trustee of all of the provisions of the Issuer Trustee's obligations
under the Notes, the Basic Documents and this Agreement, and the
consummation of the transactions herein and therein contemplated will
not (i) conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, deed to secure debt, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject, (ii) result in any violation
of the provisions of its constitution or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over it, or any of its properties; or (iii)
result in the creation or imposition of any lien or encumbrance upon any
of its property pursuant to the terms of any indenture, mortgage,
contract or other instrument to which it is a party or by which it is
bound other than pursuant to the Basic Documents;
(h) 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
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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 (i) as have been obtained under the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (the latter,
including such applicable rules and regulations, the "Trust Indenture
Act"), (ii) as may be required under state securities or "Blue Sky" Laws
in connection with the purchase and distribution of the Notes by the
Underwriters and (iii) of or with any court or governmental agency or
body having jurisdiction over the Issuer Trustee which the failure to
obtain or make would not (A) have individually or in the aggregate a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Issuer Trustee and its
subsidiaries, taken as a whole, (B) affect the validity of the Notes or
rights of the holders of the Notes or (C) prevent or delay the
consummation of the transactions contemplated in the Basic Documents;
(i) other than as set forth in or contemplated by the Prospectus or in
the related Prospectus Supplement, there are no legal or governmental
investigations, actions, suits or proceedings pending or, to its
knowledge, threatened against or affecting it or the Trust or to which
it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic
Documents, (ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement
or any of the Basic Documents by the Issuer Trustee, (iii) that may
adversely affect the US Federal or Australian Federal or state income,
excise, franchise or similar tax attributes of the Notes, (iv) that
could materially and adversely affect the Issuer Trustee's performance
of its obligations under, or the validity or enforceability against the
Issuer Trustee of, this Agreement or any of the Basic Documents or (v)
which could individually or in the aggregate reasonably be expected to
have a material adverse effect on the interests of the holders of any of
the Notes;
(j) the representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects;
(k) the Issuer Trustee 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,
reconstruction 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 or revenues;
(l) no stamp or other duty is assessable or payable in, and subject only
to compliance with Section 128F of the Income Tax Assessment Act 1936
(the "Australian Tax Act") in relation to interest payments under the
Notes, no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature will be imposed or made for or
on account of any income, registration transfer or turnover taxes,
customs or other duties or taxes of any kind, levied, collected,
withheld or assessed by or within, the Commonwealth of Australia or any
sub-division of or authority therein or thereof having power to tax in
such jurisdiction, in connection with (i) the authorization, execution
or
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delivery of any of the Transaction Documents to which it is or is to
be a party or with the authorization, execution, issue, sale or delivery
of the Notes under this Agreement, (ii) the sale and delivery of the
Notes by the Underwriters contemplated in this Agreement and the
Prospectus or (iii) the execution, delivery or performance by the Issuer
Trustee of any of the Transaction Documents to which it is or is to be a
party or the Notes; except, in the case of subclause (iii), for any of
the Transaction Documents on which nominal stamp duty is payable or any
other document executed in connection with the perfection of the
Issuer's Trustee's legal title to the Mortgage Loans on which stamp
duties or registration fees may be payable;
(m) the Notes and the obligations of the Issuer Trustee under the Note
Trust Deed will be secured (pursuant to the Master Security Trust Deed
and the Deed of Charge) by a first ranking floating charge over the
assets of the Trust; 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 fulfillment of any other
requirement) obligate 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 Deed of Charge).
II. Each National Party severally represents and warrants to each Underwriter
and the Issuer Trustee as of the date of this Agreement and as of the Closing
Date that:
(a) the Global Trust Manager has filed a registration statement on Form
S-3 (No. 333-64124), including a form of each of a prospectus and a
prospectus supplement, for registration of the Notes under the
Securities Act and has filed such amendments thereto and will file such
additional amendments thereto and such amended prospectuses as may
hereafter be required;
(b) since the respective dates as of which information is given in the
Registration Statement, the Prospectus or the Prospectus Supplement,
there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting (x) the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the National Parties
taken as a whole or (y) the general affairs, business, prospects,
condition (financial or otherwise) of the Trust otherwise than as set
forth or contemplated in the Prospectus, which is material in the
context of performing the National Parties' or Trust's obligations and
duties under the Notes and each Basic Document to which they are or are
to be a party;
(c) it has been duly established and is validly existing with power and
authority under the laws of its jurisdiction of creation to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the Basic Documents, and, in
each case, has been duly qualified 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 have such power and authority or to be so
qualified or in good standing would not individually or in
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the aggregate have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents;
(d) this Agreement has been duly authorized, executed and delivered by
it;
(e) each of the Basic Documents to which it is or is to be a party has
been duly authorized by it and, upon effectiveness of the Registration
Statement, the Note Trust Deed will have been duly qualified under the
Trust Indenture Act and each of the Basic Documents, when executed and
delivered by each National Party that is a party to it and the other
parties thereto, will constitute a valid and legally binding obligation
of such National Party, enforceable against it in accordance with its
terms, subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership, liquidation
or other similar laws of general applicability relating to or affecting
the enforcement of creditors rights generally and to general equitable
principles;
(f) other than as set forth in or contemplated by the Prospectus, there
are no legal or governmental investigations, actions, suits or
proceedings pending or, to its knowledge, threatened against or
affecting it or the Trust or to which it is or may be a party or to
which it is or may be the subject: (i) asserting the invalidity of this
Agreement or of any of the Basic Documents, (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (iii) that
may adversely affect the U.S. Federal or Australian Federal or state
income, excise, franchise or similar tax attributes of the Notes, (iv)
that could materially and adversely affect its performance of its
obligations under, or the validity or enforceability against it of, this
Agreement or any of the Basic Documents or (v) which could individually
or in the aggregate reasonably be expected to have a material adverse
effect on the interests of the holders of any of the Notes;
(g) there are no statutes, regulations, 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 required to be described in the
Registration Statement, the Prospectus or the Prospectus Supplement
which are not filed or described as required;
(h) its representations and warranties contained in the Basic Documents
are true and correct in all material respects as of the applicable date
made or given;
(i) Deloitte & Touche LLP are independent public accountants with
respect to each National Party within the meaning of the standards
established by the American Institute of Certified Public Accountants;
(j) it owns, possesses or has obtained all authorizations, 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 foreign 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 has not received any actual
notice of any proceeding relating to revocation or modification of any
such
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authorization, license, permit, certificate, consent, order, approval
or other authorization; and is in compliance with all laws and
regulations necessary for the performance of its obligations under this
Agreement and the Basic Documents;
(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, receiver and manager,
administrator, provisional liquidator or similar officer of it or of any
or all of its assets; and
(l) neither it nor the Trust is an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under the United States Investment Company Act
of 1940, as amended (the "Investment Company Act"); and neither the
Trust nor any of the National Parties are and, after giving effect to
the offering and sale of the Class A-1 Notes and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act.
III. The Global Trust Manager represents and warrants to each Underwriter and
the Issuer Trustee as of the date of this Agreement and as of the Closing
Date, that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; the conditions to the use by the
Global Trust Manager of a Registration Statement on Form S-3 under the
Securities Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Registration Statement and the
Prospectus; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Global Trust
Manager, threatened by the Commission; and (i) on the Effective Date of
the Registration Statement, the Registration Statement conformed in all
material respects to the requirements of the Securities Act, and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein, or necessary to make the
statements therein not misleading and (ii) at the time of filing of the
Prospectus pursuant to Rule 424(b) and on the Closing Date the
Prospectus and the Registration Statement will conform in all material
respects to the requirements of the Securities Act, and such document
will not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility
and Qualification (Form T-1) of the Note Trustee under the Trust
Indenture Act, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to any National Party
in writing by such Underwriter expressly for use therein;
(b) the documents incorporated or deemed to be incorporated by reference
in the Registration Statement and the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the
9
requirements of the Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (collectively, the
"Exchange Act") and, when read together with the other information in
the Prospectus, at the time the Registration Statement became effective,
at the date of the Prospectus and at the Closing Date, did not and will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, no representation or warranty is made as to documents
deemed to be incorporated by reference in the Registration Statement as
the result of filing any Current Report on Form 8-K at the request of
the Underwriters except to the extent such documents accurately reflect
or are accurately based upon information furnished by or on behalf of
the National Parties to the Underwriters for the purpose of preparing
such documents;
(c) Deloitte & Touche LLP are independent public accountants with
respect to the National and the Global Trust Manager within the meaning
of the Securities Act;
(d) to the knowledge of the Global Trust Manager, no event has occurred
that would entitle the Global Trust Manager to direct the Issuer Trustee
to retire as trustee of the Trust under clause 13.1 of the Master Trust
Deed; and
(e) application has been made to list the Notes on the Luxembourg Stock
Exchange and for the Notes to be admitted to trading and all relevant
requirements for such listing will have been complied with.
5. Covenants and Agreements.
I. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the National Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale
of the Notes pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the National Parties promptly after
it becomes actually aware of any matter which would make any of its
representations and warranties in this Agreement untrue if given at any
time prior to payment being made to the Issuer Trustee on the Closing
Date and take such steps as may be reasonably requested by the
Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added,
goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant
to, this Agreement and the Basic Documents or in connection with the
issue and distribution of the Notes or the enforcement or delivery of
this Agreement and the Basic Documents;
(d) to use all reasonable endeavors to procure satisfaction on or before
the Closing Date of the conditions referred to in Section 6 below which
relate to the Issuer Trustee and, in particular (i) the Issuer Trustee
shall execute those of the Basic Documents not executed
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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 Notes
and related matters;
(e) to provide reasonable assistance to the National Parties to procure
that the charges created by or contained in the Deed of Charge are
registered within all applicable time limits in all appropriate
registers;
(f) to perform all of its obligations under each of the Transaction
Documents to which it is a party which are required to be performed
prior to or simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit
any action to be taken which it knows or has reason to believe would
result in the Notes not being assigned the ratings referred to in
Section 6(m) below;
(h) not, prior to or on the Closing Date, amend the terms of any Basic
Document nor execute any of the Basic Documents other than in the agreed
form without the consent of the Underwriters;
(i) subject to the National Parties complying with their obligations
under subsection 5.II(j), for the purposes of section 128F(3)(c) of the
Australian Tax Act, it will, before it issues any Note, seek a listing
of the Notes on the Luxembourg Stock Exchange and the admission of the
Notes to trading on the Luxembourg Stock Exchange, and use its best
efforts to maintain such listing for as long as any of the Notes are
outstanding; provided, however, if such listing becomes impossible, to
use its best efforts to obtain, and will thereafter use its best efforts
to maintain a quotation for, or listing of, the Notes on such other
exchange as is commonly used for the quotation or listing of debt
securities as it may, with the approval of the Representative, decide.
II. Except where otherwise specified below as a covenant solely applicable to
the Global Trust Manager, each National Party severally covenants and agrees
with each of the several Underwriters and the Issuer Trustee as follows:
(a) in the case of the Global Trust Manager only, to cause the final
Prospectus and Prospectus Supplement to be filed 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 and the related
Prospectus Supplement to the Underwriters in New York City prior to
10:00 a.m., New York City time, on the Business Day next succeeding the
date of this Agreement in such quantities as the Representative may
reasonably request;
(b) in the case of the Global Trust Manager only, to deliver, at the
expense of the Global Trust Manager, to the Representative, five signed
copies of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case without
exhibits and, during the period mentioned in paragraph (f) below, to
each of the Underwriters as many copies of the Prospectus and the
related Prospectus Supplement (including all amendments and
11
supplements thereto and documents incorporated by reference therein)
as the Representative may reasonably request during the period within
which the Representative may be required to deliver such documents under
the Securities Act;
(c) in the case of the Global Trust Manager only, before filing any
amendment or supplement to the Registration Statement or the Prospectus,
to furnish to the Representative a copy of the proposed amendment;
(d) in the case of the Global Trust Manager only, 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 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 and (v) of the occurrence
of any event 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
and the related Prospectus Supplement are delivered to a purchaser, not
misleading; and to use its reasonable 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 the qualification of the Notes, or notification
of any such order thereof and, if issued, to obtain as soon as possible
the withdrawal thereof;
(e) to advise the Representative promptly, and to confirm such advice in
writing of the receipt by the Global Trust Manager of any notification
with respect to any suspension of the qualification of the Notes for
offer and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(f) in the case of the Global Trust Manager only, if, during such period
of time after the first date of the public offering of the Notes and in
the opinion of counsel for the Underwriters a prospectus relating to the
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 National
Parties, to the Underwriters, to the Issuer Trustee and to the dealers
(whose names and addresses the Representative will furnish to the
National) to which 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;
12
(g) in the case of the Global Trust Manager only, to endeavor to qualify
the Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representative shall reasonably request and to
continue such qualification in effect so long as reasonably required for
distribution of the Notes, provided that the Global Trust Manager shall
not be required to file a general consent to service of process in any
jurisdiction;
(h) in the case of the Global Trust Manager only, to make generally
available to the holders of the Notes and to the Representative as soon
as practicable an earnings statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Trust
occurring after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Commission promulgated thereunder;
(i) in the case of the Global Trust Manager only, to the extent, if any,
that the ratings provided with respect to the Notes by the Current
Rating Agencies are conditional upon the furnishing of documents or the
taking of any other action by the Global Trust Manager or the Issuer
Trustee, to use its reasonable best efforts to furnish such documents
and take any other such action or, in the case of the National only, it
will use its best efforts to procure the Global Trust Manager to do so;
(j) it will on behalf of the Issuer Trustee: (i) for the purposes of
128F of the Australian Tax Act, seek a listing of the Notes on the
Luxembourg Stock Exchange and the admission of the Notes to trading on
the Luxembourg Stock Exchange before the Issuer Trustee issues any Note,
(ii) ensure that the Issuer Trustee will not offer, issue or sell the
Notes to the Underwriters, until the Notes have been listed and have
been authorized for trading on the Luxembourg Stock Exchange or the
Representative, on behalf of the Underwriters, is satisfied that the
Notes will be listed after the Closing Date and (iii) it will use its
best efforts to maintain such listing for as long as any of the Notes
are outstanding; provided, however, if such listing becomes impossible,
to use its best efforts to obtain, and will thereafter use its best
efforts to maintain a quotation for, or listing of, the Notes on such
other exchange as is commonly used for the quotation or listing of debt
securities as it may, with the approval of the Representative, decide;
(k) to furnish from time to time copies of the Prospectus and any and
all documents, instruments, information and undertakings (in addition to
any already published or lodged with the Luxembourg Stock Exchange) and
publish all advertisements or other material and to comply with any
other requirements of the Luxembourg Stock Exchange that may be
necessary in order to effect and maintain such listing;
(l) to assist the Representative in making arrangements with DTC,
Euroclear and Clearstream, Luxembourg concerning the issue of the
Book-Entry Notes and related matters;
(m) in the case of the Global Trust Manager only, so long as the Notes
are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual audit
report on the financial statements of the Trust furnished
13
to the Issuer Trustee or the Note Trustee by the auditor pursuant to
the Basic Documents by first class mail as soon as practicable after
such statements and reports are furnished to the Issuer Trustee or the
Note Trustee, (ii) copies of each amendment to any of the Basic
Documents, (iii) on each Determination Date or as soon as thereafter as
practicable, the note factor as of the related Record Date to be made
available to the Representative on Bloomberg, (iv) copies of all reports
or other communications (financial or other) furnished to holders of the
Notes and copies of any reports and financial statements furnished to or
filed with the Commission in connection with the Notes or any national
securities exchange in connection with the Notes, and (v) from time to
time such other information concerning the Trust or the Global Trust
Manager as the Representative may reasonably request;
(n) in the case of the Global Trust Manager only, will indemnify and
hold harmless the Underwriters against any documentary, stamp or similar
issue tax, including any interest and penalties, on the creation, issue
and initial sale of the Notes and on the execution and delivery of this
Agreement. All payments to be made by the National 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 National Parties are compelled by law to deduct or withhold
such taxes, duties or charges. In that event, the applicable National
Party shall pay such additional amounts as may be necessary in order
that the net amounts received after such withholding or deduction shall
equal the amounts that would have been received if no withholding or
deduction had been made;
(o) for a period from the date of this Agreement to the Closing Date,
neither the Global Trust Manager nor the National will offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Securities Act relating to asset-backed securities, or publicly
disclose the intention to make any such offer, sale, pledge, disposition
or filing, without the prior written consent of the Representative
(which consent will not be unreasonably withheld) for a period beginning
at the date of this Agreement and ending at the later of the Closing
Date or the lifting of trading restrictions by the Representative; and
(p) for so long as the Notes are outstanding, the Global Trust Manager
will not be or become, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under the Investment Company Act.
III. The National covenants and agrees with each of the several Underwriters
and the Issuer Trustee as follows:
(a) at the Closing Date, to pay the Representative an underwriting fee
equal to 0.135% of the aggregate initial Invested Amount of the Notes.
The Underwriters shall severally and not jointly be responsible for
certain out-of-pocket expenses incurred by the National Parties in
connection with the offering of the Class A-1 Notes and Class A-3 Notes,
as shall be agreed to separately by the Underwriters and the National
Parties;
14
(b) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay, or cause to be
paid, all fees, costs and expenses incident to the performance of the
National Parties' obligations under this Agreement, including, without
limiting the generality of the foregoing, all fees, costs and expenses:
(i) incident to the preparation, issuance, execution, authentication and
delivery of the Notes, including any fees, costs and expenses of the
Note Trustee or any transfer agent, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration
Statement, the Prospectus, Prospectus Supplement and any preliminary
prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred in connection with the registration
or qualification and determination of eligibility for investment of the
Notes under the laws of such jurisdictions as the Underwriters may
designate (including fees of counsel for the Underwriters and their
disbursements with respect thereto), (iv) in connection with the listing
of the Notes on any stock exchange, (v) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Basic Documents, the Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to Underwriters and dealers of
copies of the Registration Statement and the Prospectus, including
mailing and shipping, as provided in this Agreement, (vi) the National
Parties' counsel and accountants and the Underwriters' counsel fees and
disbursement that are chargeable to the National, (vii) payable to
Current Rating Agencies in connection with the rating of the Notes and
(viii) the legal fees of counsel for the Underwriters. However, the
Underwriters shall be responsible for any expenses incurred by the
National Parties in connection with any "roadshow" presentation to
potential investors;
(c) to the extent, if any, that the ratings provided with respect to the
Notes by the Current Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by the National, to use
its reasonable best efforts to furnish such documents and take any other
such action; and
(d) in connection with the initial distribution of the Notes, it and
each person acting on behalf of the National Parties, each of whom has
agreed and covenanted with the Issuer Trustee and the Global Trust
Manager, has not and will not offer for issue, or invite applications
for the issue of, the Notes or offer the Notes for sale or invite offers
to purchase the Notes to a person, where the offer or invitation is
received by that person in Australia, unless the minimum amount payable
for the Notes (after disregarding any amount lent by any of the National
Parties or any associate (as determined under sections 10 to 17 of the
Corporations Act) of any National Party) on acceptance of the offer by
that person is at least A$500,000 (calculated in accordance with both
section 708(a) of the Corporations Act and Regulation 7.1.18 of the
Corporations Regulations 2001 (Cth)) or the offer or invitation does not
otherwise require disclosure to investors in accordance with Part 6D.2
of the Corporations Act and is not made to a person who is a "retail
client" within the meaning of section 761 G of the Corporations Act.
IV. Covenants and Agreements of the Underwriters.
(a) Each Underwriter represents and warrants to and agrees with the
Issuer Trustee and the National Parties that as of the date of this
Agreement and as of the Closing Date, such
15
Underwriter has complied with all of its obligations under this
Agreement, including, without limitation, this Section 5(IV), and, with
respect to all Computational Materials and ABS Term Sheets provided by
such Underwriter to the Global Trust Manager pursuant to this Section
5(IV), if any, such Computational Materials and ABS Term Sheets are
accurate in all material respects (taking into account the assumptions
explicitly set forth in the Computational Materials or ABS Term Sheets),
except to the extent of any errors that are caused by errors in the Pool
Information, and include all assumptions material to their preparation.
The Computational Materials and ABS Term Sheets, if any, provided by
such Underwriter to the Global Trust Manager constitute a complete set
of all Computational Materials and ABS Term Sheets delivered by such
Underwriter to prospective investors that are required to be filed with
the Commission.
(b) Each Underwriter may prepare and provide to prospective investors
Computational Materials and ABS Term Sheets in connection with its
offering of the Notes, subject to the following conditions to be
satisfied by such Underwriter:
(i) in connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co.
Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated
May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), as well as
the PSA Letter referred to below. In connection with the use of
ABS Term Sheets, such Underwriter shall comply with all applicable
requirements of the No-Action Letter of February 17, 1995 issued
by the Commission to the Public Securities Association (the "PSA
Letter" and, together with the Xxxxxx/PSA Letter, the "No-Action
Letters");
(ii) "Computational Materials" has the meaning given in the
No-Action Letters, but shall include only those Computational
Materials that have been prepared or delivered to prospective
investors by or at the direction of any Underwriter. "ABS Term
Sheets" and "Collateral Term Sheets" have the meanings given in
the PSA Letter but shall include only those ABS Term Sheets or
Collateral Term Sheets that have been prepared or delivered to
prospective investors by or at the direction of any Underwriter;
(iii) (A) All Computational Materials and ABS Term Sheets provided
to prospective investors that are required to be filed pursuant to
the No-Action Letters shall bear a legend on each page including
the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY
[NAME OF [APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER
OF THE NOTES NOR ANY OF ITS AFFILIATES MAKES ANY
REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF
THE INFORMATION HEREIN. THE INFORMATION HEREIN IS
PRELIMINARY AND WILL BE SUPERSEDED BY THE APPLICABLE
16
PROSPECTUS AND BY ANY OTHER INFORMATION SUBSEQUENTLY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION."
(B) In the case of Collateral Term Sheets, such legend
shall also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED
BY THE DESCRIPTION OF THE POOL OF HOUSING LOANS
CONTAINED IN THE PROSPECTUS SUPPLEMENT RELATING TO THE
NOTES AND SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE POOL OF HOUSING
LOANS PREVIOUSLY PROVIDED BY [NAME OF [APPLICABLE]
UNDERWRITER]."
Upon reasonable notice and in consultation with the
[ ], the Global Trust Manager shall have the right
to require additional specific legends or notations to
appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use
of terminology and the right to determine the types of
information appearing therein. Notwithstanding the
foregoing, subsections (b)(iii)(A) and (b)(iii)(B)
will be satisfied if all Computational Materials and
ABS Term Sheets bear a legend in a form previously
approved in writing by the Global Trust Manager;
(iv) At or prior to the time any such materials are furnished to
the Global Trust Manager for filing on the Form 8-K, the
Underwriter furnishing such materials will provide to the Global
Trust Manager and such other Underwriters a letter, in form and
substance reasonably satisfactory to the Global Trust Manager, of
a firm of independent public accountants of national reputation to
the effect that such accountants have performed certain specified
procedures with respect to such materials and have found no
exceptions, other than such exceptions as are acceptable to the
Global Trust Manager and the Underwriter;
(v) Such Underwriter shall provide the Global Trust Manager with
representative forms of all Computational Materials and ABS Term
Sheets prior to their first use, to the extent such forms have not
previously been approved by the Global Trust Manager for use by
the Underwriters. Such Underwriter shall provide to the Global
Trust Manager, for filing on Form 8-K, copies (in such format as
reasonably required by the Global Trust Manager) of all
Computational Materials and ABS Term Sheets that are required to
be filed with the Commission pursuant to the No-Action Letters.
Such Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required
to be filed. All Computational Materials and ABS Term Sheets
described in this subsection (b)(v) must be provided to the Global
Trust Manager not later than
17
10:00 a.m. New York time one Business Day before filing thereof is
required pursuant to the terms of this Agreement. Such Underwriter
agrees that it will not provide to any investor or prospective
investor in the Notes any Computational Materials or ABS Term
Sheets on or after the day on which Computational Materials and
ABS Term Sheets are required to be provided to the Global Trust
Manager pursuant to this subsection (b)(v) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to
the Global Trust Manager in accordance with this subsection (b)(v)
for filing pursuant to subsection (b)(vii)) unless such
Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or
prospective investor;
(vi) All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the same
methodology and assumptions that are used to generate the
information in the Prospectus Supplement as set forth therein;
provided, however, that the Computational Materials and ABS Term
Sheets may include information based on alternative methodologies
or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets delivered by such Underwriter that
are required to be filed were based on assumptions with respect to
the pool of mortgages to be securitized that differ from the final
information in relation to the pool of mortgages to be securitized
in any material respect or on note structuring terms that were
revised in any material respect prior to the printing of the
Prospectus, such Underwriter shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the
final information with respect to the securitized pool of housing
loans and final structuring assumptions, circulate such revised
Computational Materials and ABS Term Sheets to all recipients of
the preliminary versions thereof that indicated orally to such
Underwriter they would purchase all or any portion of the Offshore
Notes, and include such revised Computational Materials and ABS
Term Sheets (marked, "as revised") in the materials delivered to
the Global Trust Manager pursuant to subsection (b)(v) above;
(vii) The Global Trust Manager shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been
determined to contain any material error or omission, provided
that, at the request of the applicable Underwriter, the Global
Trust Manager will file Computational Materials or ABS Term Sheets
that contain a material error or omission if clearly marked
"superseded by materials dated " and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked
"material previously dated , as corrected." In the event that
within the period during which the Prospectus is required to be
delivered under the Securities Act, any Computational Materials or
ABS Term Sheets delivered by an Underwriter are determined, in the
reasonable judgment of the Global Trust Manager or such
Underwriter, to contain a material error or omission, such
Underwriter shall prepare a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such
corrected Computational Materials and ABS Term
18
Sheets to all recipients of the prior versions thereof that either
indicated orally to such Underwriter they would purchase all or
any portion of the Notes, or actually purchased all or any portion
thereof, and shall deliver copies of such corrected Computational
Materials and ABS Term Sheets (marked, "as corrected") to the
Global Trust Manager for filing with the Commission in a
subsequent Form 8-K submission (subject to the Global Trust
Manager's obtaining an accountant's comfort letter in respect of
such corrected Computational Materials and ABS Term Sheets);
(viii) If an Underwriter does not provide any Computational
Materials or ABS Term Sheets to the Global Trust Manager pursuant
to this subsection (b), such Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or
electronic form in connection with the offering of the Notes that
is required to be filed with the Commission in accordance with the
No-Action Letters; and
(ix) In the event of any delay in the delivery by such Underwriter
to the Global Trust Manager of all Computational Materials and ABS
Term Sheets required to be delivered in accordance with this
subsection (b), or in the delivery of the accountant's comfort
letter in respect thereof pursuant to subsection (b)(iv) or
(b)(vi) above the Global Trust Manager shall have the right to
delay the release of the Prospectus to investors or to the
Underwriters, to delay the Closing Date and to take other
appropriate actions, in each case as necessary in order to allow
the Global Trust Manager to comply with its agreement to file the
Computational Materials and ABS Term Sheets by such specified
time.
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS
Terms Sheets prior to the date hereof in connection with the offering of the
Notes, all of the conditions set forth in clauses (i) through (ix) above have
been or, to the extent the relevant condition requires action to be taken
after the date hereof, will be, satisfied with respect thereto.
V. Selling Restrictions.
(a) Each Underwriter, severally and not jointly, agrees with the Issuer
Trustee that, within 30 days of the date of this Agreement, it will have
offered the Notes for sale, or invited or induced offers to buy the
Notes by making hard copies of the Prospectus for the Notes available
for collection from that Underwriter in at least its principal office in
New York City or London and, in the case of purchasers in the United
States, by sending or giving copies of the Prospectus to those
purchasers and that such offer will be in compliance with the provisions
of 5.V(f).
(b) Each Underwriter agrees that it will not sell Notes in the initial
distribution thereof to, or invite or induce offers for the Notes from:
(i) any associate of the Issuer Trustee or a National Party
specified in Schedule 2 or Schedule 3; or
19
(ii) any other associate from time to time specified in writing to
the Underwriter by the Issuer Trustee or a National Party;
provided, however, that the sale of Notes by an Underwriter to an
associate of the Issuer Trustee or a National Party prior to
receipt of written notification from the Issuer Trustee or a
National Party that such person constitutes an associate of the
Issuer Trustee or a National Party shall not be deemed a violation
of this section 5.V(b) unless at the time of the sale, any
officer, employee or agent of the Underwriter directly involved in
the sale knew or had reasonable grounds to suspect that, as a
result of such sale, the Notes or an interest in the Notes was
being, or would later be acquired (directly or indirectly), by an
associate of the Issuer Trustee or a National Party (other than a
person in the capacity referred to in section 128F(5)(c) of the
Australian Tax Act).
For the avoidance of doubt, if any officer, employee or agent of
the Underwriter making the offer, effecting the sale or otherwise
directly involved in the sale of the Notes does not know, or does
not have reasonable grounds to suspect, that a person is an
associate of the Issuer Trustee or a National Party, then nothing
in this section 5.V(b) obliges that Underwriter to make positive
enquiries of that person to confirm that person is not such an
associate of the Issuer Trustee or a National Party.
(c) Each Underwriter, severally and not jointly, agrees to:
cooperate with reasonable requests from the Issuer Trustee or the Global Trust
Manager 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 Notes by providing such
information so far as it is reasonably able to do so and as is reasonably
requested within 14 days of a receipt of such request,
provided that no Underwriter shall be obligated to disclose:
(x) the identity of the purchaser of any Note or any
information from which such identity might be capable of being ascertained; or
(y) any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or directive or any
confidentiality agreement binding on the Underwriter.
(d) Each Underwriter (severally and not jointly) agrees that it:
(i) has not offered or sold and, prior to the date six months
after the date of issue of the Notes will not offer or sell, any
of the Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 (as amended
20
("POS Regulations")) or the Financial Securities and Markets Act
2000 (as amended ("FSMA"));
(ii) has complied and will comply with all applicable provisions
of all applicable provisions of FSMA and the POS Regulations with
respect to anything done by it in relation to the Notes in, from,
or otherwise involving the United Kingdom; and
(iii) has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the FSMA) received by it in connection with the
issue of such notes in circumstances in which section 21(1) of the
FSMA does not apply to the Issuer Trustee.
(e) No offering circular, prospectus or other disclosure document in
relation to the Notes has been lodged with, or registered by, the
Australian Securities and Investments Commission or the Australian Stock
Exchange Limited. Each Underwriter (severally and not jointly)
represents and agrees that:
(i) It has not (directly or indirectly) offered for subscription
or purchase or issued invitations to subscribe for or buy nor has
it sold the Notes;
(ii) It will not directly or indirectly offer for subscription or
purchase or issue invitations to subscribe for or buy nor will it
sell any Notes; and
(iii) It has not distributed and will not distribute any draft,
preliminary or definitive offering memorandum, advertisements or
other offering material relating to any Notes;
in the Commonwealth of Australia, its territories or possessions,
unless:
(i) The minimum aggregate consideration payable by each offeree is
at least A$500,000 (disregarding moneys lent by any persons
offering the Notes or their associates) or the offer or invitation
otherwise does not require disclosure to investors in accordance
with Part 6D.2 of the Australian legislation entitled
"Corporations Xxx 0000 (Cwlth)" as amended; and
(ii) Such action complies with all applicable laws and
regulations.
(f) Each Underwriter (severally and not jointly) agrees to offer the
Notes for sale to, or to write offers to purchase the Notes from:
(i) At least 10 persons each of whom they reasonably believe to be
a "qualified institutional buyer" (as defined in Rule 144A of the
Securities Act) and is not known or suspected to be an associate
(as defined by Section 128F(9) of the Australian Tax Act) of any
other person covered by this paragraph; or
21
(ii) At least 100 persons each of whom they reasonably believe
either has acquired debentures (as defined by section 128F(9) of
the Australian Tax Act) in the past or is likely to be interested
in acquiring the Notes.
(g) Each Underwriter, severally and not jointly, acknowledges that the
Notes may not be offered, sold or distributed in the Kingdom of Spain
except in accordance with the requirements of the Spanish Securities
Market Law of July 28, 1988 (Ley 00/0000, xx 00 xx Xxxxx, xxx Xxxxxxx xx
Xxxxxxx) as amended and restated, and Royal Decree 291/1992 on Issues
and Public Offering for the Sale of Securities (Real Decreto 291/1992,
de 27 de marzo, sobre Emisiones y Ofertas Publicas de Venta de Valores)
(as amended and restated and the decrees and regulations made
thereunder).
(h) Each Underwriter, severally and not jointly, acknowledges that no
action has been taken to permit a public offering of the Notes in any
jurisdiction outside the United States where action would be required
for that purpose. Each Underwriter will comply with all applicable
securities laws and regulations in each jurisdiction in which it
purchases, offers, sells or delivers Notes or has in its possession or
distributes the Prospectus or any other offering material in all cases
at its own expense.
VI. Global Trust Manager Direction to Issuer Trustee.
The Global Trust Manager hereby directs the Issuer Trustee to do each of
the things (or, as the case may be, not to do the things) specified in Section
5(I) and the Issuer Trustee acknowledges and accepts that direction.
6. Conditions to the Obligations of the Underwriters. The several obligations
of the Underwriters hereunder are subject to the performance by the Issuer
Trustee and the National Parties of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than 5:00 P.M., New York City time, on the date hereof and no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; the
Prospectus and the related Prospectus Supplement shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the
Securities Act;
(b) the representations and warranties of the Issuer Trustee and the
National Parties contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the
representations and warranties of the Issuer Trustee and the National
Parties in the Basic Documents will be true and correct on the Closing
Date; and the Issuer Trustee and the National Parties shall have
complied with all agreements and all conditions on the part of each to
be performed or satisfied hereunder and under the Basic Documents at or
prior to the Closing Date;
22
(c) the Representative shall have received letters, dated the date of
delivery thereof, of (i) Deloitte & Touche LLP, substantially in form
and substance satisfactory to the Representative and counsel for the
Underwriters, confirming that they are independent public accountants
within the meaning of the Securities Act and the applicable Rules and
Regulations and stating in effect that they have performed certain
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth
in the Registration Statement and the Prospectus (and any amendments and
supplements thereto), agrees with the accounting records of the
National, excluding any questions of legal interpretation, and (ii)
Deloitte & Touche LLP, substantially in form and substance satisfactory
to the Representative and counsel for the Underwriters, stating in
effect that they have performed certain specified procedures with
respect to the Mortgage Loans;
(d) XxXxx Xxxxxx LLP, 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;
(e) Sidley Xxxxxx Xxxxx & Xxxx LLP, United States counsel for the
National Parties, shall have furnished to the Representative their
written opinions, dated the Closing Date, substantially 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) Sidley Xxxxxx Xxxxx & Xxxx LLP, United States federal income tax
counsel for the National Parties, shall have furnished to the
Representative their written opinion, dated the Closing Date,
substantially 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) Mallesons Xxxxxxx Xxxxxx, Australian counsel for the National
Parties, shall have furnished to the Representative their written
opinion, dated the Closing Date, substantially 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;
(h) Mallesons Xxxxxxx Xxxxxx, Australian tax counsel for the National
Parties, shall have furnished to the Representative their written
opinion, dated the Closing Date, substantially in form and substance
satisfactory to the Representative, and such Australian tax counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(i) Henry, Davis, York, Australian counsel for the Issuer Trustee and
the Security Trustee, shall have furnished to the Representative their
written opinion, dated the Closing Date, substantially in form and
substance satisfactory to the Representative, and
23
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(j) Xxxxx, Xxxxxx & Xxxxxx LLP, counsel for the Note 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;
(k) Counsel to the Currency Swap Providers shall have furnished to the
Representative their written opinions dated the Closing Date,
substantially 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) 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;
(m) At the Closing Date, the Notes shall have been rated "AAA" by
Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies, Inc. ("Standard and Poor's") and "Aaa" by Xxxxx'x Investors
Service, Inc. ("Moody's" and together with Standard and Poor's, the
"Rating Agencies") as evidenced by letters from the Rating Agencies;
(n) the Notes shall have been listed on the Luxembourg Stock Exchange or
such other exchange as the parties shall agree upon or the
Representative shall be satisfied that such listing will be granted
after the Closing Date but in any event, prior to the first Payment Date
for the Notes;
(o) the Class A-2 Notes and the Class B Notes will have been validly
issued by the Issuer Trustee upon the direction of the Global Trust
Manager on or prior to the Closing Date and are outstanding without
default thereon;
(p) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date; and
(q) on or prior to the Closing Date the Issuer Trustee and the National
Parties shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably
request.
7. Indemnification and Contribution.
(a) Each of the National Parties agrees jointly and severally to
indemnify and hold harmless each Underwriter, its partners, directors
and officers and each affiliate of an Underwriter that assists such
Underwriter in the distribution of the 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
24
asserted) caused by (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) any untrue statement
or alleged untrue statement of any material fact contained in the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter or the Issuer Trustee in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred;
except:
(i) insofar as any such losses, claims, damages, liabilities,
legal fees and other expenses are caused by any untrue statement
or omission or alleged untrue statement or omission made (A) in
reliance upon and in conformity with information relating to any
Underwriter furnished to a National Party in writing by such
Underwriter expressly for use therein or (B) in the Prepayment and
Yield Information (as defined below);
(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 Notes which are the
subject hereof, if such person did not receive a copy of the
Prospectus (or the Prospectus as amended or supplemented) at or
prior to the confirmation of the sale of such Notes to such
person, and where such delivery is required by the Securities Act
and the alleged untrue statement contained in, or omission of a
material fact from the Prospectus was corrected in the Prospectus
as amended or supplemented and such Prospectus, as amended or
supplemented, was delivered to the Underwriters reasonably prior
to such confirmation; or
(iii) to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein relating to any information included in Computational
Materials or ABS Term Sheets, if any, that have been superseded by
revised Computational Materials or ABS Terms Sheets if such
Underwriter (A) has not complied with its obligation to circulate
revised Computational Materials and ABS Terms Sheets in accordance
with Section 5(IV) or (B) has not delivered them to the Global
Trust Manager no later than one (1) Business Day after delivery to
investors (in the case of (B), to the extent such loss, claim,
damage or liability is attributable to the failure to deliver)
provided that the National Parties shall indemnify each
Underwriter to the extent any misstatement or omission is
contained in the Pool Information (as defined in the next
paragraph);
25
For the purposes of this Agreement, the term "Prepayment and Yield
Information" means that portion of the information in the Prospectus (or the
Prospectus as amended or supplemented) set forth under the heading "Prepayment
and Yield Considerations--Prepayment Rate Model and Modeling Assumptions"
including the prepayment tables included thereunder. "Pool Information" means
the information furnished by magnetic tape, diskette, electronic mail or any
other computer readable format, or in writing to the Underwriters by any
National Party regarding the Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Global Trust Manager, its directors, its officers who
sign the Registration Statement, the Issuer Trustee and the National and
each person that controls a National Party or the Issuer Trustee within
the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the
National Parties to each Underwriter, but only with reference to: (i)
information relating to such Underwriter furnished to the National
Parties in writing by such Underwriter expressly for use in the
Registration Statement or the Prospectus, any amendment or supplement
thereto; and (ii) the Computational Materials and ABS Term Sheets, if
any, delivered to investors by such Underwriter, except to the extent of
any errors in the Computational Materials or ABS Term Sheets that are
caused by errors in the Pool Information.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant
to subsection (a) or (b) above, such person (the "Indemnified Person")
shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate
in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless:
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary;
(ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified
Person; or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential
differing interests between them.
It is understood that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of
26
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the
distribution of the Notes and such control persons of Underwriters shall be
designated in writing by the Representative and any such separate firm for the
Global Trust Manager, its directors, its officers who sign the Registration
Statement, the National and the Issuer Trustee and such control persons of
each of the Issuer Trustee and the National Parties shall be designated in
writing by that party.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
an Indemnifying Person to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the third sentence of this subsection
(c), the Indemnifying Person agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if:
(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.
(d) If the indemnification provided for in subsection (a) or (b) above
is unavailable to, or insufficient to hold harmless, an Indemnified
Person in respect of any losses, claims, damages or liabilities referred
to therein (or, in the case where such indemnification is insufficient,
in addition to such partial indemnification), 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 National Parties and the Issuer
Trustee on the one hand and the Underwriters on the other hand from the
offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the National Parties and
the Issuer Trustee on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the National
Parties and the Issuer Trustee on the one hand and the Underwriters on
the other shall be deemed to be in
27
the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the National Parties and the
Issuer Trustee and the total underwriting fees, discounts and the
commissions received by the Underwriters bear to the aggregate public
offering price of the Notes. The relative fault of the National Parties
and the Issuer Trustee on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by a National Party or the Issuer Trustee or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The National Parties, the Issuer Trustee and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to
in this subsection (d) shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the
underwriting fees, discounts and commissions received by it with respect to
the Notes underwritten by it and distributed to the public exceeds the amount
of any damages which 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 Notes set forth opposite
their names in Schedule 1 hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(e) To the extent that any payment of damages by a National Party
pursuant to subsection (a) above is determined to be a payment of
damages pursuant to paragraph 15 of Guidance Note AGN 120.3- "Purchase
and Supply of Assets (including Securities issued by SPVs)", being a
Guidance Note to Prudential Standard APS 120- "Funds Management and
Securitisation" or any successor thereto, such payment shall be subject
to the terms therein (or the terms of any equivalent provisions in any
successor of Prudential Standard APS 120).
(f) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Issuer Trustee and the
National Parties set forth in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf
of the Issuer Trustee or a National Party, its officers or directors or
any other person controlling the
28
Issuer Trustee or a National Party and (iii) acceptance of and payment
for any of the Notes.
8. Termination. Notwithstanding anything herein contained, this Agreement may
be terminated in the absolute discretion of the Representative, by notice
given to the Issuer Trustee and each National Party, if after the execution
and delivery of this Agreement and prior to the Closing Date any of the
following shall have occurred: (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of any of the National Parties,
the Issuer Trustee or any Swap Party and their respective subsidiaries, in
each case, taken as one enterprise, which, in the judgment of a majority in
interest of the Underwriters including the Representative, is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Notes; (ii) any
downgrading in the rating of any debt securities of any of the Global Trust
Manager, the National, the Issuer Trustee or any Swap Party by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of the Notes or any
debt securities of any of the Global Trust Manager, the National or the Issuer
Trustee (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any change in United States, Australian or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Underwriters, including the Representative, be likely to prejudice materially
the success of the proposed issue, sale or distribution of the Notes, whether
in the primary market or in respect of dealings in the secondary market; (iv)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, the London Stock Exchange or any
other exchange on which the Notes are listed, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any securities
of any of the National, the Issuer Trustee or any Swap Party on any exchange
or in the over-the-counter market; (v) any banking moratorium declared by U.S.
Federal, New York, London, England or Australian authorities; or (vi) any
outbreak or escalation of major hostilities or act of terrorism involving the
United States, the United Kingdom, Spain or Australia, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters,
including the Representative, the effect of any such outbreak, escalation,
act, declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Notes.
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 Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of 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 Notes to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the principal amount of Notes set forth opposite their
respective names in
29
Schedule 1 bears to the aggregate principal amount of 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 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
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 Notes without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase Notes which it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of Notes with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Notes to be purchased on such date, and arrangements satisfactory to
the Representative and the Global Trust Manager for the purchase of such Notes
are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
the National Parties and the Issuer Trustee. In any such case either the
Representative or the Global Trust Manager shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that
the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
the Issuer Trustee or a National Party to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Issuer
Trustee or a National Party shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the National Parties jointly and severally agree to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including
the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. Successors. This Agreement shall inure to the benefit of and be binding
upon the National Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the
distribution of the Notes, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person,
firm or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Notes from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
12. Actions by Representative; Notice. 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 Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, XXX (Facsimile No. (000) 000-0000, Attention: Xxx X'Xxxxx). Notices to
the National and the Global Trust Manager shall be given to it at National
Global MBS Manager Pty Ltd, Xxxxx 00,
00
000 Xxxxxx Xxxxxx, Xxxxxxxxx XXX 0000, Xxxxxxxxx (Facsimile No.: x00 0 0000
0906; Attention: Manager, Group Funding. Notices to the Issuer Trustee shall
be given to it at Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000,
Xxxxxxxxx (Facsimile No.: x00 0 0000 0000; Attention: Manager,
Securitisation).
13. Appointments of Process Agent.
(a) Each of the National Parties hereby designates and appoints Xxxxx X.
Xxxxxxxx, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"National Process Agent"), as its authorized agent, upon whom process
may be served in any legal suit, action or proceeding based on or
arising under or in connection with this Agreement, it being understood
that the designation and appointment of Xxxxx X. Xxxxxxxx as such
authorized agent shall become effective immediately without any further
action on the part of the each of the National Parties. Such appointment
shall be irrevocable to the extent permitted by applicable law and
subject to the appointment of a successor agent in the United States on
terms substantially similar to those contained in this Section 13 and
reasonably satisfactory to the Representative. If the National Process
Agent shall cease to act as agent for service of process, each of the
National Parties shall appoint, without unreasonable delay, another such
agent, and notify the Representative of such appointment. Each of the
National Parties represents to the Underwriters that it has notified the
National Process Agent of such designation and appointment and that the
National Process Agent has accepted the same in writing. Each of the
National Parties hereby authorizes and directs the National Process
Agent to accept such service. Each of the National Parties further
agrees that service of process upon the National Process Agent and
written notice of that service to it shall be deemed in every respect
effective service of process upon it in any such legal suit, action or
proceeding, Nothing in this Section 13 shall affect the right of any
Underwriter or any person controlling any Underwriter to serve process
in any other manner permitted by law.
(b) The Issuer Trustee hereby designates and appoints CT Corporation,
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX (the "IT
Process Agent"), as its authorized agent, upon whom process may be
served in any legal suit, action or proceeding based on or arising under
or in connection with this Agreement, it being understood that the
designation and appointment of CT Corporation, as such authorized agent
shall become effective immediately without any further action on the
part of the Issuer Trustee. Such appointment shall be irrevocable to the
extent permitted by applicable law and subject to the appointment of a
successor agent in the United States on terms substantially similar to
those contained in this Section 13 and reasonably satisfactory to the
Representative. If the IT Process Agent shall cease to act as agent for
service of process, the Issuer Trustee shall appoint, without
unreasonable delay, another such agent, and notify the Representative of
such appointment. The Issuer Trustee represents to the Underwriters that
it has notified the IT Process Agent of such designation and appointment
and that the IT Process Agent has accepted the same in writing. The
Issuer Trustee hereby authorizes and directs the IT Process Agent to
accept such service. The Issuer Trustee further agrees that service of
process upon the IT Process Agent and written notice of that service to
it shall be deemed in every respect effective service of process upon it
in any such legal suit, action or proceeding. Nothing
31
in this Section 13 shall affect the right of any Underwriter or any
person controlling any Underwriter to serve process in any other manner
permitted by law.
14. Consent to Jurisdiction; Exchange Risk of Payments in Non-U.S. Currency.
(a) Each of the Parties hereto 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.
(b) The obligation of any of the National 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
National Parties and the Issuer Trustee agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Underwriter
against such loss. If the United States dollars so purchased are more
than the sum originally due to such Underwriter, such Underwriter agrees
to indemnify the National Parties and the Issuer Trustee, as applicable,
for such difference.
15. Foreign Taxes. All payments to be made by the Issuer Trustee and any
National Party hereunder shall be made without withholding or deduction for or
on account of any present or future taxes, duties or governmental charges,
excluding for the purposes of this Section 15, (i) any taxes which are payable
as a consequence of any Underwriter having a necessary connection with the
relevant taxing jurisdiction and (ii) any income or franchise tax on the
overall net income of such Underwriter imposed by the United States or the
State of New York (all such non-excluded taxes, duties or charges, "Foreign
Taxes"), unless the Issuer Trustee or such National Party, as applicable, is
compelled by law to deduct or withhold such Foreign Taxes. In that event, the
Issuer Trustee or such National Party, as applicable, shall pay such
additional amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amounts that would have
been received if no withholding or deduction had been made.
16. Waiver of Immunities. To the extent that any of the Issuer Trustee and
National 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 of
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 this Agreement, the Issuer Trustee
and the National Parties, as applicable, each hereby
32
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
17. Judgment Currency. If any judgment or order in any legal proceeding
against any of the Issuer Trustee and the National 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 the 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 National Parties, as
applicable, to the Payee and (b) if positive by the Payee to the Issuer
Trustee and the National Parties, as applicable. The foregoing indemnity shall
constitute a separate and independent obligation of the Issuer Trustee, the
Global Trust Manager and/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 of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
18. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement only in its capacity
as trustee of the Trust and in no other capacity. A liability arising
under or in connection with this Agreement is limited to and can be
enforced against the Issuer Trustee only to the extent to which it can
be satisfied out of Assets of the Trust out of which the Issuer Trustee
is actually indemnified for the liability. This limitation of the Issuer
Trustee's liability applies despite any other provision of this
Agreement (other than section 18(c)) hereof to the contrary and extends
to all liabilities and obligations of the Issuer Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement.
(b) No person, including, without limitation, each Underwriter and each
of the National Parties, other than the Issuer Trustee, may xxx the
Issuer Trustee in any capacity other than as trustee of the Trust
including seeking the appointment of a receiver (except in relation to
the Assets of the Trust), or a liquidator, an administrator or any
similar person to the Issuer Trustee or prove in any liquidation,
administration or arrangements of or affecting the Issuer Trustee
(except in relation to the Assets of the Trust).
(c) The provisions of this section 18 will not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Master Trust Deed, this Agreement or any
other Transaction Document, or by operation of law there is a reduction
in the extent of the Issuer Trustee's indemnification out of the Assets
of the Trust, as a result of the Issuer Trustee's fraud, negligence or
breach of trust.
33
(d) It is acknowledged that the Relevant Parties (as defined in the
Supplemental Deed) are responsible under the Basic Documents for
performing a variety of obligations relating to the Trust. No act or
omission of the Issuer Trustee (including any related failure to satisfy
its obligations and any breach of representations and warranties under
this Agreement or any other Basic Document) will be considered
fraudulent, negligent or a breach of trust for the purpose of section
18(c) to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party (other than any
person for whom the Issuer Trustee is responsible or liable for in
accordance with any Transaction Document) or any other person who
provides services in respect of the Trust to fulfill its obligations
relating to the Trust or by any other act or omission of a Relevant
Party or any other such person regardless of whether or not the act of
omission is purported to be done on behalf of the Issuer Trustee.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Agreement or any other Basic Document has authority
to act on behalf of the Issuer Trustee in a way that exposes the Issuer
Trustee to any liability in excess of that contemplated in this Section
18, and no act or omission of any such person will be considered fraud,
negligence or breach of trust of the Issuer Trustee for the purpose of
clause 18(c).
(f) The Issuer Trustee is not obligated to do anything or refrain
from doing anything under or in connection with this Agreement or any other
Basic Document (including incur a liability) unless the Issuer Trustee's
liability is limited in the same manner as set out in this Section 18.
19. 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.
34
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof
Very truly yours,
NATIONAL AUSTRALIA BANK LIMITED
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Manager, Group Funding
NATIONAL GLOBAL MBS MANAGER PTY LTD
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Manager, Group Funding
PERPETUAL TRUSTEE COMPANY LIMITED in its
capacity as Issuer Trustee of the National
RMBS Trust 2004-1
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Manager
Accepted:
DEUTSCHE BANK SECURITIES INC.
Acting on behalf of itself and the
several Underwriters listed in
Schedule 1 hereto.
By: /s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
Title: Director
By: /s/ Xxxx Xxx Xxxxxx
---------------------------
Name Xxxx Xxx Xxxxxx
Title: Managing Director
SCHEDULE 1
Principal Amount of Principal Amount of
Class A-1 Notes (US$) Class A-3 Notes (Euro)
--------------------- -------------------
1. Deutsche Bank Securities Inc. $750,000,000 (Euro)231,300,000
2. X.X. Xxxxxx Securities Inc. $100,000,000 (Euro)0
3. X.X. Xxxxxx Securities Ltd. $0 (Euro)30,840,000
4. Citigroup Global Markets Inc. $50,000,000 (Euro)0
5. Citigroup Global Markets $0 (Euro)15,420,000
Limited
6. National Australia Bank $50,000,000 (Euro)15,420,000
Limited
7. SG Americas Securities, LLC $50,000,000 (Euro)0
8. Societe Generale, London $0 (Euro)15,420,000
Branch
Total.............................$1,000,000,000 (Euro)308,400,000
SCHEDULE 2
List of 128F(9) Associates of the Issuer Trustee
ASX Perpetual Registrars Limited
Australian Trustees Limited
Charleville Leasing Ltd
Commonwealth Trustees Pty Limited
Hunter Nominees Pty Ltd
Investor Marketplace Limited
Midway Nominees Pty Ltd
Perpetrust Nominees Pty Ltd
Perpetual Asset Management Ltd
Perpetual Assets Pty Ltd
Perpetual Australia Property Services (WA) Pty Ltd
Perpetual Australia Pty Limited
Perpetual Custodians Ltd
Perpetual Custodian Nominees Pty Limited
Perpetual Custodians WA Pty Ltd
Perpetual Executors Nominees Ltd
Perpetual Fund Services Limited
Perpetual Investment Management Limited
Perpetual Xxxxx Xxxxxxxx Limited
Perpetual Nominees Limited
Perpetual Nominees (Canberra) Limited
Perpetual Property Services Australia Pty Ltd.
Perpetual Service Network Pty Limited
Perpetual Services Pty Limited
Perpetual Superannuation Limited
Perpetual Trust Services Limited
Perpetual Trustee Company (Canberra) Limited)
Perpetual Trustees Australia Limited
Perpetual Trustees Consolidated Limited
Perpetual Trustees Nominees Limited
Perpetual Trustees Queensland Ltd
Perpetual Trustees S A Limited
Perpetual Trustees Victoria Limited
Perpetual Trustees W.A. Ltd
PT Limited
Perpetual Victoria Nominees Pty Limited
Queensland Trustees Pty Limited
Selwest Pty Ltd
Terrace Guardians Ltd
Xxxxxx Xxxxxxxx Finance Pty Limited
Xxxxxx Xxxxxxxx Limited
Xxxxxx Xxxxxxxx Partnership Pty Limited
37
SCHEDULE 3
List of 128F(9) Associates of the National Parties
National Equities Limited
National Australia Group (NZ) Limited
BNZ International Australia Limited
BNZ Securities Australia Limited
Partown Pty Limited
Bank of New Zealand Limited
BNZ Corporation Limited
Interchange and Settlement Limited (12.6%)
Quill Financing Limited (76%)
Peterel Financing Limited
BNZ Capital Guaranteed Growth Fund Limited
Loyalty New Zealand Limited (25%)
Mondex New Zealand Limited (20%)
Visa New Zealand Limited (23%)
BNZ Funding Limited
BNZ International (Hong Kong) Limited
BNZ Investments Limited
BNZ Equipment Limited
BNZ International Limited
Amber Liquid Investments Limited
BNZI Securities (No 1) Limited
BNZI Securities (No 2) Limited
BNZ Property Investments Limited
BNZ Branch Properties Limited
BNZ Properties (Auckland) Limited
BNZ Properties Limited
Flamingo Holdings Incorporated
Iraklis Eleven Limited
Maroro Leasing Limited
New Zealand Card Services Limited
Screen Holdings No. 2 Limited
Screen Holdings No. 3 Limited
Screen Holdings No. 4 Limited
Screen Holdings No. 5 Limited
Screen Holdings No. 6 Limited
Custom Fleet (NZ) Limited
BNZ Fleet Limited
Custom Service Leasing (New Zealand) Limited
Custom Fleet Leasing (NZ) Ltd
Fleetlease (New Zealand) Limited
National Australia Limited (In liquidation)
Electronic Transaction Services Ltd (25%)
National Americas Investment, Inc.
38
MSRA Holdings, Inc.
National Americas Capital Investment LLC
SR Funding Corporation
National Australia Capital Markets, LLC
National Australia Bank Capital LLC
National Australia Funding (Delaware) Inc
National Wealth Management Holdings Limited
ACN 094 484 625 Ltd
National Australia Management Services Pty. Ltd. (In Liquidation)
National Wealth Management Services Ltd
MLC Asia Ltd
National Australia Financial Management Limited
MLC Corporate Services Asia Pte Limited
PT MLC Investment Indonesia Ltd
National Corporate Investment Services Limited
MLC Funds Management Limited (In Liquidation)
GWM Adviser Services Limited
Xxxxxxx Pembroke Limited
National Asset Management Limited
NAM NT Rail Pty Limited
National Australia Financial Planning Pty Limited (In Liquidation)
National Australia Superannuation Pty. Ltd.
NAFM Investments Pty. Ltd. (In Liquidation)
XXXX Investment Advisers Pty Limited
Superannuation for Australian Corporate Employees Pty Ltd (In Liquidation)
Wealth Management & Community Fund Pty Ltd (Not yet established)
MLC Holdings Limited
Your Prosperity Limited
MLC Investments Limited
MLC Computer Pty Limited
Apogee Financial Planning Limited
MLC Limited
ThreeSixty Limited
Xxxxxxx Pembroke Financial Services Limited (in Liquidation)
Heritage Management Limited (In Liquidation)
Plum Financial Services Limited
PLUMFS Limited (In Liquidation)
PFS Nominees Pty Ltd
FlexiPlan Australia Limited (In Liquidation)
Medfin Australia Pty Limited
MLC Properties Pty Limited
MLC Nominees Pty Ltd
Messenia Pty Limited (In Liquidation)
Fortuitous Assets Ltd
Sophisticated Assets Ltd
Eight Star Group Ltd
39
Stable Markets Holdings Ltd
HKMLC Holdings Ltd
MLC (Hong Kong) Ltd
MLC Trustees (Hong Kong) Ltd
Hong Kong Wealth Management Ltd
SMMR (Thailand) Co. Ltd
Tun Charoen Ltd
Advance MLC Assurance Company Limited
PT MLC Life Indonesia
MLC Lifetime Company Limited
CFG Nominees Pty Ltd (In liquidation)
Capita Properties Pty Ltd
Tropical Breeze, Inc (In liquidation)
National Wealth Management International Holdings Limited
National Wealth Management Europe Holdings Limited
National Europe Holdings (Wealth Management) Limited
National Australia Life Company Ltd
National Australia Life Services Ltd
National Australia Insurance Services Limited
MLC Savings Limited
MLC Trust Management Ltd
Clydesdale Bank Insurance Brokers Limited
Northern Bank Insurance Services Ltd.
Yorkshire Bank Financial Services Limited
Wealth Management Mauritius Holdings Limited
PT Telur Emas Perkasa
PT Indonesia Emas Perkasa
PT Telur Emas Indonesia
National Wealth Management New Zealand Holdings Limited
BNZ Investment Management Limited
BNZ Life Insurance Limited
BNZ Nominees Limited
National Australia Group Europe Limited
PMJI Inc
National Americas Holdings Ltd
National Australia Group Europe Investments Ltd
National Australia Group Europe PHC Limited
National Australia Group Europe Finance B.V.
National Australia UK Pension Trustee Ltd
Amber Liquid (UK) Investments Limited
National Australia Group SSP Trustee Ltd
National Australia Finance (Commercial Leasing) Limited
National Australia Finance (Equipment Leasing) Limited
National Australia Finance (Industrial Leasing) Limited
National Australia Finance (Leasing) Limited
The Deep in Hull Limited
40
NAGEO B.V.
Angara Limited
Ariodante Limited
PFA Limited
National Europe Holdings Limited
National Australia Group Europe Services Ltd
National Europe Holdings (Ireland) Limited
Northern Bank Limited
Northern Asset Finance Ltd.
Northern Bank Industrial Leasing Ltd.
Northern Bank Nominees Ltd.
Northern Bank Pension Trust Ltd.
Causeway Credit Ltd.
Northern Bank Commercial Leasing Ltd.
Northern Bank Equipment Leasing Ltd
Northern Bank Development Corporation Ltd.
Nordev Properties Ltd.
Project Development (Balmoral) Ltd.
Northern Bank (I.O.M.) Ltd
Northern Bank Trust Company (I.O.M.) Ltd.
NAM Nominees Limited
Northern Bank Executor & Trustee Co. Ltd.
Northern Bank Factors Ltd.
Northern Bank Financial Services Ltd.
Xxxx Property Development Co Limited (20% NBL)
Kensington Hotel (Belfast) Limited (20% NBL)
National Irish Bank Limited
Collinstown Property Holding Co Ltd
Forward Trust (Ireland) Ltd.
National Australia Group SSP (ROI) Trustee Ltd
National Irish Bank Financial Services Ltd.
National Irish Bank Leasing Ltd.
National Irish Bank Nominees Ltd.
National Irish Bank Pensions Ltd.
Angelsea Assets Ltd
HomeSide Lending (Ireland) Limited
National Irish Investment Bank Ltd.
National Irish Investment Bank Nominees Ltd.
National Irish Investment Bank Pensions Ltd.
Norfin Investments Ltd.
National Europe Holdings (GB) Limited
National Australia Bank (GB) Limited
National Europe Holdings (GB) Ltd
Clydesdale Bank PLC
CB House Purchase Limited
National Australia Group CIF Trustee Ltd
41
CB Nominees Limited
CB Shelfco No. 1 Limited (In liquidation)
CB Trustee Nominees Limited
Clydesdale Bank Custodian Nominees Limited
Clydesdale Bank Equity Limited
Clydesdale Bank Asset Finance Limited
Clydesdale Bank Pension Trustee Limited
Clydesdale Europe Finance Limited
CGF No. 3 Limited
CGF No. 6 Limited
CGF No. 9 Limited
CGF No. 12 Limited
Clydesdale Bank (Head Office) Nominees Ltd
Clydesdale Bank (London) Nominees Limited
Clydesdale Bank (Piccadilly) Nominees Limited
North of Scotland Bank Limited
Xxxxxx Collections Limited
Clydesdale Trustee & Custodial Services (Ireland) Ltd (In liquidation)
Clydesdale Corporate Investment Services (Ireland) Ltd (In liquidation)
Clydesdale Ireland Securities Nominees Limited (In liquidation)
Yorkshire Bank PLC
Yorkshire Bank Retail Services Ltd.
Fairhalsen Collections Ltd.
Storecard Ltd.
Eden Vehicle Rentals Ltd.
Yorkshire Bank Finance Ltd.
Yorkshire International Finance B.V.
Northern and General Finance Ltd.
Yorkshire Bank Equipment Leasing Ltd.
Yorkshire Bank Commercial Leasing Ltd
Allerton House Properties Limited
YB Lease Ltd.
Yorlease Ltd
Yorkshire Bank Home Loans Ltd.
Yorkshire Bank Investments Ltd.
Yorkshire BIHK Limited
Yorkshire Bank Financial Services Ltd
Yorbank Nominees Ltd.
Yorkshire Bank Nominees Ltd.
Brunswick Collection Services Ltd I
YB Trust Company Ltd.
North British Finance Group Ltd.
MSRA UK Limited
North British Motor Finance Ltd
North British Finance Ltd
EVR Limited
42
Custom Fleet Limited
National Australia Group Services Limited
Custom Lease Pty. Limited (In liquidation)
Custom Service Leasing Limited
Hegira Limited
Xxxxx Pty. Limited (In liquidation)
Lavallette Pty. Limited (In liquidation)
NSW Housing No. 1 Pty. Limited
Omnibus Leasing (1978) Limited (In liquidation)
Rail Leasing Limited (In Liquidation)
River Boyne Pty. Limited
River Embley Pty. Limited
Zermatt Limited (In liquidation)
Fleet Systems Pty. Limited
Custom Fleet (Australia) Limited
NBA Properties Limited
CBC Holdings Limited
CBC Properties Limited
NBA Properties (Qld.) Limited
NBA Properties (Vic.) Limited
IMD Management Ltd
Other companies
ARDB Limited
Australian Banks' Export Re-finance Corporation Limited
BOACT Pty Ltd
Commercial Nominees Pty. Limited
Erstfeld Pty Limited
HICAPS Pty Limited
DC One Pty Ltd
DC Two Pty Ltd
NAF Trustee Limited
National Australia Corporate Advisory Limited
NAB Investments Limited
National Australia Corporate Services Limited
Nautilus Insurance Pte. Ltd.
NAB Finance (Ireland) Ltd
National Capital Guaranteed Fund Limited (In liquidation)
Matrix Film Investment One Pty Limited
Matrix Film Investment Two Pty Limited
National Australia Finance (Asia) Limited
National Australia Investment Capital Limited
National Australia Investment Brokers Limited
National Australia Managers Limited
National Australia Merchant Bank (Singapore) Limited
National Australia Securities Limited
National Australia Trustees Limited
00
Xxxxxx Xxxxxx Nominees Pty. Limited
National Australia Underwriters Limited
National Infrastructure Investment No.1 Pty Ltd
National Infrastructure Investment No.2 Pty Ltd
National Infrastructure Investment No.3 Pty Ltd
Asibond Pty Limited
Valewin Pty Limited
Elly Investments Pty Ltd
Xxxxx Investments Pty Ltd
National Nominees Limited
National Nominees (London) Limited
National Margin Services Pty Ltd
NMS Nominees Pty Ltd
National Markets Group Limited
Australian Market Automated Quotation (Ausmaq) System Limited
Ausmaq (NZ) Limited
National OnLine Trading Limited
National OnLine Trading Nominees Pty Ltd
O2-e Limited
National eProcurement Ltd
National eProcurement Australia Pty Ltd
National eProcurement UK Ltd
NBA Leasing Pty. Limited
VPL Securities Pty Limited
Xxxxx Corporation Pty Ltd (50%NAB)
Xxxxxx Limited
Guidestar Financial Limited
Guidestar Financial Group Limited
Pinnacle Holdings NZ Ltd
Vilexton Pty Limited
Rycee 1 Pty Ltd
Rycee 2 Pty Ltd
Rycee 3 Pty Ltd
Rycee 4 Pty Ltd
Rycee 5 Pty Ltd
Rycee 6 Pty Ltd
National Australia Capital Securities (UK) PLC
National Australia Securities (Jersey) Limited
Loyalty Pacific Pty Ltd (50% NAB; 50% Coles Xxxx)
FBP Awards Fund Pty Ltd (50% NAB; 50% Coles Xxxx)
Relationship Services Pty Limited
Loyalty Pacific (Hong Kong) Ltd (50% RSPL)
C.B.C. Investments Limited (In liquidation)
C.B.C. Investments Services Limited (In liquidation)
Custom Credit Holdings Limited (In liquidation)
Custom Credit Corporation Limited (In liquidation)
44
Xxxxxxxxxx Confirmers Pty. Limited (In liquidation)
Australian Equity Corporation Limited (In liquidation)
First National Limited (In liquidation)
First National Finance Limited (In liquidation)
National Funding Holdings Pty Ltd
Mockey 1 Pty Ltd
Mockey 2 Pty Ltd
Mockey 3 Pty Ltd
Mockey 4 Pty Ltd
Mockey 5 Pty Ltd
Mockey 6 Pty Ltd
Messinia Pty Ltd (In Liquidation)
National Australia Travel Limited (In Liquidation)
Tasovac Pty Ltd
National Global MBS Manager Pty Ltd
45
