EXECUTION COPY
PERPETUAL TRUSTEES AUSTRALIA LIMITED
PUMA GLOBAL TRUST NO. 4
U.S. $1,200,000,000 Class A Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
August 14, 2003
Deutsche Bank Securities Inc. ("Representative")
As Representative of the
Several Underwriters Listed
in Schedule I
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Perpetual Trustees Australia Limited (ABN 86 000 000 000), a limited liability
public company under the Corporations Law of New South Wales, Australia
("Perpetual") in its capacity as trustee of PUMA Global Trust No. 4 (the "Issuer
Trustee") proposes to sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representative (the
"Representative"), U.S. $1,200,000,000 aggregate principal amount of Class A
Mortgage Backed Floating Rate Notes, which shall bear interest at three-month
LIBOR plus 0.19% until the quarterly payment date in July 2009 and three-month
LIBOR plus 0.38% thereafter (the "Class A Notes"), issued by PUMA Global Trust
No. 4 (the "Trust"). Each Class A Note will be secured by the assets of the
Trust in accordance with the Security Trust Deed (as defined herein). The assets
of the Trust means all assets held by the Issuer Trustee from time to time as
trustee of the Trust including, among other things, a pool of variable and/or
fixed rate residential housing loans (the "Housing Loans") originated in the
name of Perpetual, in its capacity as trustee of the PUMA warehouse trust,
including all monies received after the Closing Date (as defined herein) with
respect to payments of principal, interest and rights under certain insurance
policies with respect to the Housing Loans, any bank account held by the Issuer
Trustee and the rights of the Issuer Trustee under the Basic Documents (as
defined herein). The Trust will be created pursuant to the Trust Deed, dated
July 13, 1990 as amended, modified or supplemented from time to time (the "Trust
Deed") between Perpetual and the person referred to therein as the Founder and a
sub-fund notice, dated August 12, 2003, from Macquarie Securitisation Limited,
ABN 16 003 297 336 (the "Manager") to the Issuer Trustee, which sets forth
specific provisions regarding the Trust and details the provisions of the Class
A Notes (the "Sub-Fund Notice"). The Note Trust Deed, to be dated on or prior to
the Closing Date (as defined herein), by and among the Issuer Trustee, the
Manager and The Bank of New York, New York (the "Note Trustee") provides for the
issuance and registration of the Class A Notes in accordance with the terms and
conditions attached thereto (the "Note Trust Deed"). The Manager and Macquarie
Bank
Limited, ABN 46 000 000 000 ("Macquarie") are each a "Macquarie Party" and
collectively are referred to herein as the "Macquarie Parties".
The assets of the Trust will also secure under the Security Trust Deed among
other things, the A$ Class B Notes issued on the Closing Date and any other A$
Notes (as defined in the Sub-Fund Notice) that may be issued after the Closing
Date.
The Class A Notes will be issued in an aggregate principal amount of U.S.
$1,200,000,000. The A$ Class B Notes issued on the Closing Date will be issued
in an aggregate principal amount of A$57,500,000.
The Manager has prepared and filed with the Securities and Exchange Commission
(the "Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement, including a
prospectus, relating to the Class A Notes. The registration statement as amended
at the time when it became effective, or, if a post-effective amendment has been
filed with respect thereto, as amended by such post-effective amendment at the
time of its effectiveness (including in each case information (if any) deemed to
be part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act) is referred to in this Agreement as the
"Registration Statement", the form of base prospectus (first filed on or after
the date of this Agreement along with the Prospectus Supplement referred to
below) is referred to as the "Base Prospectus" and the form of the prospectus
which includes the Base Prospectus and a prospectus supplement describing the
Class A Notes and the offering thereof (the "Prospectus Supplement"), which Base
Prospectus and Prospectus Supplement are in the form first filed on or after the
date of this Agreement in accordance with Rule 424(b) and are collectively
referred to in this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean the Trust Deed, the
Sub-Fund Notice, the Class A Notes, the Security Trust Deed, the Note Trust
Deed, the Currency Swap (as defined in the Sub-Fund Notice), the Redraw Facility
Agreement (as defined in the Sub-Fund Notice) and the Agency Agreement (as
defined in the Sub-Fund Notice) and any other contract, agreement or instrument
which is or is to be entered into by any of the Macquarie Parties or the Issuer
Trustee on or prior to the Closing Date or otherwise in connection with any of
the foregoing or this Agreement. To the extent not defined herein, capitalized
terms used herein have the meanings assigned to such terms in the Prospectus.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the Macquarie Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale.
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(a) The Issuer Trustee, at the direction of the Manager, agrees to sell
the Class A Notes to the several Underwriters as hereinafter provided,
and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter
stated, agrees to purchase,
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severally and not jointly, from the Issuer Trustee the respective
principal amount of Class A Notes set forth opposite such
Underwriter's name in Schedule I hereto at a price equal to 100% of
their principal amount.
(b) In connection with such purchase, the Manager will pay in immediately
available funds on the Closing Date to the Underwriters the
commissions payable under the letter agreement relating to fees and
expenses between the Manager and the Representative, dated as of July
22, 2003 (the "Fee Letter").
(c) The Representative agrees to pay for any expenses incurred by the
Macquarie Parties in connection with any "roadshow" presentation to
potential investors.
2. Offering.
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The Manager and the Issuer Trustee understand that the Underwriters intend to
make a public offering in the United States (and to make non-public offerings in
other jurisdictions) of their respective portions of the Class A Notes, upon the
terms specified in the Prospectus and in this Agreement, 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.
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Payment for the Class A Notes shall be made no later than 12:00 noon, New York
City time on August 19, 2003, by wire transfer in immediately available funds to
the account specified by the Issuer Trustee to the Representative, or at such
other time on the same or such other date, not later than the fifth Business Day
thereafter, as the Representative and the Manager may agree upon in writing. The
time and date of such payment are referred to herein as the "Closing Date." As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City, Sydney or London.
Payment for the Class A Notes shall be made against delivery to the nominee of
The Depository Trust Company ("DTC") for the account of the Representative and
for the respective accounts of the several Underwriters of one or more fully
registered, global book-entry notes (the "Book-Entry Notes") representing U.S.
$1,200,000,000 in aggregate Principal Balance of Class A Notes, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Class A Notes duly paid by the Manager. The Book-Entry Notes will be made
available for inspection by the Representative at the office of Mayer, Brown,
Xxxx & Maw LLP, at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 1:00
p.m., New York City time, on the Business Day prior to the Closing Date.
Interests in any Book-Entry Notes will be held only in book entry form through
DTC, except in the limited circumstances described in the Prospectus.
4. Representations and Warranties of the Macquarie Parties and the Issuer
Trustee.
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I. The Issuer Trustee represents and warrants to each Underwriter and the
Macquarie Parties as of the date of this Agreement and as of the Closing
Date, and agrees with each Underwriter and the Macquarie Parties, that:
(a) since the respective dates as of which information is provided in the
Registration Statement and the Prospectus, there has not been any
material adverse change or any development involving a prospective
material adverse
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change in or affecting the general affairs, business, prospects,
management, results of operations, or condition (financial or
otherwise) of the Issuer Trustee except as disclosed in the
Prospectus, which is material in the context of the Issuer Trustee
performing its obligations and duties under the Class A Notes and each
Basic Document to which it is or is to be a party;
(b) it has been duly incorporated and is validly existing as a corporation
under the laws of the Commonwealth of Australia, with the power and
authority (corporate and other) to conduct its business as described
in the Prospectus and to issue the Class A Notes and to act as
required by each Basic Document to which it is or is to be a party and
by law to comply with the requirements of any legislation and
subordinate legislation (including, without limitation and to the
extent relevant, any Consumer Credit Code) and no other thing is
required to be done by the Issuer Trustee (including without
limitation the making of any filing or registration) in order to issue
the Class A Notes or to execute and act as required by each Basic
Document to which it is or is to be a party;
(c) it has been duly qualified for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
conducts any business so as to require such qualification, other than
where the failure to be so qualified and in good standing would not
have a material adverse effect on the transactions contemplated herein
or in the Basic Documents;
(d) this Agreement has been duly authorized, executed and delivered by the
Issuer Trustee;
(e) the Class A Notes have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, they will have been
duly executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Issuer Trustee, entitled to the
benefits provided by the Note Trust Deed and the Security Trust Deed,
subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws or general principles affecting the enforcement of
creditors rights generally and to general equitable principles. 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 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 or general principles
affecting the enforcement of creditors rights generally and to general
equitable principles;
(f) it is not, nor with the giving of notice or lapse of time or both will
be, in violation of or in default under, its (i) constitution or (ii)
any indenture, mortgage, deed of trust, loan agreement or any other
agreement or instrument to which it is a party or by which it or any
of its properties is bound, except in the case of (ii), for violations
and defaults which individually and in the
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aggregate would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of
the Class A Notes and the performance by it of all of the provisions
of its obligations under the Class A Notes, the Basic Documents and
this Agreement and the consummation of the transactions herein and
therein contemplated will not (I) conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or any other
agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets of the Trust is subject;
(II) result in any violation of the provisions of its constitution or
any applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over it, or
any of its properties; or (III) result in the creation or imposition
of any lien or encumbrance upon any of its property pursuant to the
terms of any lien or encumbrance upon any of its property pursuant to
the terms of any indenture, mortgage, contract or other instrument
other than pursuant to the Basic Documents; and no consent, approval,
authorization, order, license, registration or qualification of or
with any such court or governmental agency or body is required by the
Issuer Trustee for the issue and sale of the Class A Notes or the
consummation by the Issuer Trustee of the transactions contemplated by
this Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act, the
Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (the latter, including such applicable
rules and regulations, the "Trust Indenture Act") and as may be
required under state securities or "Blue Sky" laws in connection with
the purchase and distribution of the Class A Notes by the
Underwriters;
(g) other than as set forth in or contemplated by the Prospectus, there
are no legal or governmental investigations, actions, suits or
proceedings pending or, to its knowledge, threatened against or
affecting the Issuer Trustee or the Trust or, to which it is or may be
a party or to which it or any property of the Trust is or may be the
subject, (i) asserting the invalidity of this Agreement or of any of
the Basic Documents in relation to the Issuer Trustee, (ii) seeking to
prevent the issuance of the Class A Notes or the consummation of any
of the transactions contemplated by this Agreement or any of the Basic
Documents by the Issuer Trustee, (iii) that may adversely affect the
United States Federal or Australian Federal or state income, excise,
franchise or similar tax attributes of the Class A Notes, (iv) that
could materially and adversely affect the Issuer Trustee's performance
of its obligations under, or the validity or enforceability of, this
Agreement or any of the Basic Documents against the Issuer Trustee or
(v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the
holders of any of the Class A Notes;
(h) the representations and warranties of the Issuer Trustee contained in
the Basic Documents are true and correct in all material respects;
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(i) to the Issuer Trustee's knowledge, no event has occurred which would
entitle the Manager to direct the Issuer Trustee to retire as trustee
of the Trust under clause 19 of the Trust Deed;
(j) 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;
(k) subject to compliance with Section 128F of the Income Tax Assessment
Act (1936) (the "Australian Tax Act") in relation to payments under
the Class A Notes, no withholding or deduction for any taxes, duties,
assessments or governmental charges of whatever nature 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, in connection with the authorization, execution or delivery
of any of the Basic Documents to which it is or is to be a party or
with the authorization, execution, issue, sale or delivery of the
Class A Notes or the performance by the Issuer Trustee of any of its
obligations under the Basic Documents to which it is or is to be a
party or the Class A Notes, other than any stamp duty payable with
respect to the execution of the Basic Documents;
(l) the Class A Notes and the obligations of the Issuer Trustee under the
Note Trust Deed will be secured (pursuant to the Security Trust Deed)
by a first floating charge over the assets of the Trust subject to the
Prior Interest (as defined in the Security Trust Deed); and
(m) no event has occurred or circumstances arisen which, had the Class A
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) oblige it to retire as Issuer Trustee or
constitute grounds for its removal as Issuer Trustee under any Basic
Document or constitute an Event of Default (as defined in the Security
Trust Deed).
II. The Manager represents and warrants to each Underwriter and the Issuer
Trustee, as of the date of this Agreement and as of the Closing Date, that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Manager in
writing by such Underwriter directly or through the Representative
expressly for use therein;
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(b) the Registration Statement has been declared effective under the
Securities Act by the Commission; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Manager, threatened by the Commission; and the Registration
Statement and the Prospectus (as amended or supplemented if the
Manager shall have furnished any amendments or supplements thereto)
comply, or will comply, as the case may be, in all material respects
with the Securities Act and the Trust Indenture Act and do not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
the foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) of the Note
Trustee under the Trust Indenture Act, (ii) statements or omissions in
the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished
to the Manager in writing by such Underwriter directly or through the
Representative expressly for use therein, and (iii) the information
under the heading "Prepayment and Yield Considerations" in the
Registration Statement and the Prospectus Supplement.
(c) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders'
equity or results of operations of the Manager, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, which
is material in the context of the Manager performing its obligations
and duties under each Basic Document to which it is or is to be a
party;
(d) the Manager is a corporation duly incorporated and validly existing
under the Corporations Xxx 0000 of the Commonwealth of Australia, the
Manager has the power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement and the
Basic Documents to which it is a party and to carry out the
transactions contemplated by such Basic Documents; the Manager has
been duly qualified or licensed for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require
such qualification or licensing, other than where the failure to be so
qualified or licensed or in good standing would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents;
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(e) this Agreement has been duly authorized, executed and delivered by the
Manager;
(f) each of the Basic Documents to which it is or is to be a party has
been duly authorized by it, the Note Trust Deed has been duly
qualified under the Trust Indenture Act and, when executed and
delivered by the Manager and each of the other parties thereto, each
of the Basic Documents will constitute a legal, valid and binding
obligation of the Manager, enforceable against the Manager in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors rights generally and to general equitable principles; and
the Class A Notes and the Basic Documents each will conform to the
descriptions thereof in the Prospectus;
(g) the Manager is not, nor with the giving of notice or lapse of time or
both would it be, in violation of or in default under, its
constitution or any indenture, mortgage, deed of trust, loan agreement
or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound, except for violations and
defaults which individually and in the aggregate would not have a
material adverse effect on the transactions contemplated herein or in
the Basic Documents; the issue and sale of the Class A Notes and the
performance by the Manager of all of the provisions of its obligations
under the Class A Notes, the Basic Documents and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or any other agreement or instrument to
which the Manager is a party or by which the Manager is bound or to
which any of the property or assets of the Manager is subject, nor
will any such action result in any violation of the provisions of the
constitution of the Manager or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Manager, or any of its properties; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Class A Notes or the
consummation by the Manager of the transactions contemplated by this
Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act
and as may be required under state securities or "Blue Sky" laws of
the United States in connection with the purchase and distribution of
the Class A Notes by the Underwriters;
(h) other than as set forth or contemplated in the Prospectus, there are
no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Manager, threatened against or
affecting the Manager or its properties or, to which the Manager is or
may be a party or to which the Manager or any property of the Manager
is or may be the subject, (i) asserting the invalidity of this
Agreement or of any of the Basic Documents, (ii) seeking to prevent
the issuance of the Class A Notes or the consummation of any of
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the transactions contemplated by this Agreement or any of the Basic
Documents, (iii) that may adversely affect the United States Federal
or Australian income, excise, franchise or similar tax attributes of
the Class A Notes, (iv) that could materially and adversely affect the
performance of the Manager of its obligations under, or the validity
or enforceability of, this Agreement or any of the Basic Documents or
(v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the
holders of the Class A Notes or the marketability of the Class A
Notes; and there are no statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not described as required or are
not filed as required, other than certain documents that will be filed
following the Closing Date;
(i) the representations and warranties of the Manager contained in the
Basic Documents are true and correct in all material respects;
(j) PricewaterhouseCoopers ("PWC") are independent public accountants with
respect to the Manager within the meaning of the Securities Act;
(k) the Manager owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all Australian
and United States federal, state, local and other governmental
authorities (including United States regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to perform its obligations under this
Agreement and the Basic Documents, and the Manager has not received
any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization; and the Manager is in compliance with
all laws and regulations necessary for the performance of its
obligations under this Agreement and the Basic Documents;
(l) no event has occurred which would entitle the Manager to direct
Perpetual to retire as trustee of the Trust under clause 19 of the
Trust Deed;
(m) the Manager has not taken any corporate action nor (to the best of its
knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against the Manager for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator
or similar officer of it or of any or all of its assets;
(n) no stamp or other duty is assessable or payable, and, subject only to
compliance with Section 128F of the Australian Tax Act in relation to
payments under the Class A Notes, no withholding or deduction for any
taxes, duties, assessments or governmental charges of whatever nature
is imposed or made for or on account of any income, registration,
transfer or turnover taxes, customs or other duties or taxes of any
kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein
or thereof having power to tax in such jurisdiction, in
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connection with the authorization, execution or delivery of the Basic
Documents to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Class A Notes and the
performance of the Manager's obligations under the Basic Documents to
which it is, or is to be, a party and the Class A Notes except for any
of the Basic Documents on which stamp duty is payable;
(o) no event has occurred or circumstances arisen which, had the Class A
Notes already been issued, would (whether or not with the giving of
notice and/or the passage of time and/or the fulfillment of any other
requirement) constitute an Event of Default (as defined in the
Security Trust Deed).
III. Macquarie 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) Macquarie is a company incorporated in the Australian Capital
Territory;
(b) this Agreement has been duly authorized, executed and delivered by
Macquarie;
(c) the representations and warranties of Macquarie contained in the Basic
Documents are true and correct in all material respects; and
(d) since the respective dates as of which information is provided in the
Registration Statement and the Prospectus, there has been no material
adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise) of
Macquarie, which is material in the context of Macquarie performing
its obligations and duties under each Basic Document to which it is or
is to be a party.
5. Covenants and Agreements.
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I. The Manager covenants and agrees with each of the several Underwriters as
follows:
(a) to file, if required, the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A under the
Securities Act, and to furnish copies of the Prospectus to the
Underwriters, provided that the distribution of such copies shall be
at the Underwriters' expense, in New York City prior to 10:00 a.m.,
New York City time, on the Business Day next succeeding the date of
this Agreement in such quantities as the Representative may reasonably
request;
(b) to deliver, at the expense of the Manager, to the Representative upon
its request up to 5 signed copies of the Registration Statement and
each post-effective amendment thereto, in each case including
exhibits, and to each other Underwriter a conformed copy of the
Registration Statement and each post-effective amendment thereto, in
each case without exhibits and, during the period mentioned in
paragraph (e) below, to each of the Underwriters, as many copies of
the Prospectus (including all amendments and supplements thereto) as
the Representative may reasonably request, provided that the
distribution of such copies shall be at the Underwriter's expense;
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(c) for the period of 90 days following the first date of the public
offering of the Class A Notes only, before filing any amendment or
supplement to the Registration Statement or the Base Prospectus and
the Prospectus Supplement, to furnish to the Representative a copy of
the proposed amendment or supplement for review and not to file any
such proposed amendment or supplement to which the Representative
reasonably objects;
(d) to advise the Representative promptly, and to confirm such advice in
writing, (I) for the period of 90 days following the first date of the
public offering of the Class A Notes only, (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 or supplement to the Registration Statement or any amendment
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) as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, and (II) of the receipt
by the Manager of any notification with respect to any suspension of
the qualification of the Class A Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order, or of any order preventing or suspending the use
of any preliminary prospectus or the Prospectus, or of any order
suspending any such qualification of the Class A Notes, or
notification of any such order thereof and, if issued, to obtain as
soon as possible the withdrawal thereof;
(e) if, during the period of 90 days following the first date of the
public offering of the Class A Notes, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Manager, to the Underwriters and to the dealers
(whose names and addresses the Representative will furnish to the
Manager) to which Class A Notes may have been sold by the
Representative on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may
be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Class A Notes for offer and sale under the
securities or Blue Sky laws of such states or territories of the
United States as the Representative shall reasonably request and to
continue such qualification in
11
effect so long as reasonably required for distribution of the Class A
Notes; provided that the Manager shall not be required to file a
general consent to service of process in any jurisdiction;
(g) to make generally available to the holders of the Class A Notes and to
the Representative as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Trust occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) so long as the Class A Notes are outstanding, to furnish to the
Representative (i) copies of each certificate, the annual statements
of compliance and the annual independent certified public accountant's
audit report on the financial statements furnished to the Issuer
Trustee pursuant to the Basic Documents by first class mail as soon as
practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic
Documents, (iii) on each day preceding a Quarterly Payment Date or as
soon thereafter as practicable, notice by telex or facsimile to the
Representative of the Note Factor (as defined in the note conditions
set out in Schedule 2 of the Note Trust Deed, the "Note Conditions")
(iv) copies of all reports or other communications (financial or
other) furnished to holders of the Class A Notes, and copies of any
reports and financial statements furnished to or filed with the
Commission, any governmental or regulatory authority or any national
securities exchange in connection with the Class A Notes, and (v) from
time to time such other information concerning the Trust or the
Manager as the Representative may reasonably request;
(i) to the extent, if any, that the ratings provided with respect to the
Class A Notes by Xxxxx'x Investors Service, Inc. and Standard & Poor's
Ratings Group, A Division of The XxXxxx-Xxxx Companies, Inc. (the
"Rating Agencies") are conditional upon the furnishing of documents or
the taking of any other action by the Manager, the Manager shall use
its best efforts to furnish such documents and take any other such
action;
(j) to assist the Representative to make arrangements with DTC, Euroclear
and Clearstream, Luxembourg concerning the issue of the Class A Notes
and related matters;
(k) to not take, or cause to be taken, any action and will not knowingly
permit any action to be taken which it knows or has reason to believe
would result in the Class A Notes not being assigned the ratings
referred to in Section 6(m) below;
(l) to pay all fees, costs and expenses incident to the performance of its
obligations hereunder, including commissions payable, in immediately
available funds to the Underwriters for the performance of their
obligations under this Agreement whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is
terminated, as set forth in the Fee Letter; provided that such
payments shall be made without prejudice to
12
the rights or remedies of the Manager related to any termination of
this Agreement; and
(m) to cause the charges created by or contained in the Security Trust
Deed to be registered within all applicable time limits in accordance
with the Xxxxxxxxxx Xxxxxxxxxxxx Xxx 0000 (and any regulations related
thereto).
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the Macquarie Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale
of the Class A Notes pursuant to this Agreement in the manner
specified in the Prospectus Supplement under the caption "Use of
Proceeds";
(b) to notify the Representative and the Macquarie Parties promptly after
it becomes actually aware of any matter which would make any of its
representations 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 or
similar tax, fee or duty (including court fees) in relation to the
execution of, or any transaction carried out pursuant to, the Basic
Documents or in connection with the issue and distribution of the
Class A Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable efforts to procure satisfaction on or before the
Closing Date of the conditions referred to in Section 6 below and, in
particular (i) the Issuer Trustee shall execute those of the Basic
Documents not executed on the date hereof on or before the Closing
Date, and (ii) the Issuer Trustee will assist the Representative to
make arrangements with DTC, Euroclear and Clearstream, Luxembourg
concerning the issue of the Class A Notes and related matters;
(e) to perform all of its obligations under each of the Basic Documents to
which it is a party which are required to be performed prior to or
simultaneously with the closing on the Closing Date;
(f) not to take, or cause to be taken, any action or knowingly permit any
action to be taken which it knows or has reason to believe would
result in the Class A Notes not being assigned the ratings referred to
in Section 6(m) below; and
(g) not, prior to or on the Closing Date, amend the terms of any Basic
Document nor execute any of the Basic Documents other than in the
agreed form without the consent of the Underwriters.
6. Conditions to the Obligations of the Underwriters.
-------------------------------------------------
The several obligations of the Underwriters hereunder are subject to the
performance by the Macquarie Parties and the Issuer Trustee of their obligations
hereunder and to the following additional conditions:
13
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than 5:00 p.m., New York City time, on the date hereof; and no
stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment shall be in effect, and no proceedings
for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with Section 5(I)(a) hereof; and all requests for
additional information by the Representative with respect thereto
shall have been complied with to the satisfaction of the
Representative;
(b) the representations and warranties of the Macquarie Parties and the
Issuer Trustee contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the
representations and warranties of the Macquarie Parties in the Basic
Documents will be true and correct on the Closing Date; and each
Macquarie Party and the Issuer Trustee shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder and under the Basic Documents at or prior to the Closing
Date;
(c) since the respective dates as of which information is given in the
Prospectus, there shall not have been any material adverse change or
any development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
each Macquarie Party, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment of
the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Class A Notes on the
Closing Date on the terms and in the manner contemplated in the
Prospectus;
(d) the Representative shall have received on and as of the Closing Date a
certificate of an executive officer of each Macquarie Party, with
specific knowledge about financial matters of such Macquarie Party,
satisfactory to the Representative to the effect set forth in
subsections (a) through (c) of this Section;
(e) Xxxxxxx Xxx, Australian counsel for Macquarie and the Manager, shall
have furnished to the Representative their written opinion, dated on
or prior to the Closing Date, in form and substance satisfactory to
the Representative, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(f) Xxxxxxx Xxx, Australian tax counsel for Macquarie and the Manager
shall have furnished to the Representative their written opinion,
dated on or prior to 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;
14
(g) the Representative on or prior to the Closing Date shall have received
letters, dated the date thereof, from (i) PWC, in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the
Securities Act and the applicable rules and regulations related
thereto and stating in effect that they determine that certain
information of an accounting, financial or statistical nature set
forth in the Registration Statement and the Prospectus (and any
amendments thereto), agrees with the accounting records of the
Manager, excluding any questions of legal interpretation, and (ii)
PWC, in form and substance satisfactory to the Representative and
counsel for the Underwriters, stating in effect that they have
performed certain specified proceedings with respect to the Housing
Loans to be acquired by the Trust on the Closing Date;
(h) XxXxx Xxxxxx LLP, special United States counsel to the Underwriters,
shall have furnished to the Underwriters their written opinion, dated
the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(i) Mayer, Brown, Xxxx & Maw LLP, United States counsel for Macquarie and
the Manager, shall have furnished to the Representative their written
opinion, dated on or before the Closing Date, in form and substance
satisfactory to the Representative, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters, to the effect that:
(i) The Note Trust Deed has been duly qualified under the Trust
Indenture Act;
(ii) To the best of such counsel's knowledge, there are no material
contracts, indentures, or other documents of a character
required to be described or referred to under either the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto;
(iii) The Trust is not, and will not as a result of the offer and
sale of the Class A Notes as contemplated in this Agreement, or
as a result of the consummation of the transactions
contemplated by the terms of the Basic Documents become,
required to be registered as an "investment company", under the
Investment Company Act of 1940, as amended;
(iv) No consent, approval, authorization or order of any United
States federal court or governmental agency or body is required
(i) for the consummation by Macquarie or the Manager of the
transactions contemplated by the terms of the Basic Documents
or (ii) for the consummation of the transactions contemplated
by this Agreement in connection with the issuance or sale of
the Class A Notes by the Issuer Trustee, except, in each case,
(a) such as have been obtained under the Securities Act and the
Trust Indenture Act and (b) such as may be
15
required under the blue sky laws of any jurisdiction in
connection with the purchase and the offer and sale of the
Class A Notes, as to which such counsel will express no
opinion;
(v) The Registration Statement has become effective under the
Securities Act as of the date and time specified in such
opinion, and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued or threatened under Section 8(d) of
the Securities Act;
(vi) The Registration Statement and the Prospectus, as of their
respective effective or issue date, other than financial or
statistical information contained therein, complied as to form
in all material respects with the requirements of the
Securities Act and the applicable rules and regulations
thereunder;
(vii) Such counsel shall have no reason to believe that the
Registration Statement, as of the effective date thereof or as
of the date of such opinion, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein
not misleading or that the Prospectus, as of the date thereof
or as of the date of such opinion, contained or contains any
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, provided that such counsel shall
express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus;
(viii) The statements in the Prospectus Supplement under the caption
"Description of the Offered Notes", "Description of the
Transaction Documents" and "Description of the Parties" insofar
as they purport to summarize certain terms of the Class A Notes
and the applicable Basic Documents, constitute a fair summary
of the provisions purported to be summarized; and
(ix) To the extent that the execution and delivery of this
Agreement, is a matter to be determined under New York law,
this Agreement has been duly and validly executed and delivered
and constitutes the legal, valid and binding obligation of each
of Macquarie, the Issuer Trustee and the Manager, provided that
such counsel shall express no opinion regarding any
severability provision in this Agreement or regarding the
legal, valid and binding effect or the enforceability of any
indemnification provisions in this Agreement to the extent that
any such provisions may be deemed to cover matters under the
federal securities laws.
(j) Mayer, Brown, Xxxx & Maw LLP, United States federal income tax counsel
for Macquarie and the Manager, shall have furnished to the
Representative their written opinion, dated on or prior to the Closing
Date, in form and substance satisfactory to the Representative, and
such counsel shall have
16
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(k) Mallesons Xxxxxxx Xxxxxx counsel for the Issuer Trustee, the Security
Trustee and 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;
(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 Class A Notes shall have been rated "AAA" by
Standard & Poor's Ratings Group, A Division of The XxXxxx-Xxxx
Companies, Inc. and "Aaa" by Xxxxx'x Investors Service, Inc., as
evidenced by letters from the Rating Agencies;
(n) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
(o) on or prior to the Closing Date, the Macquarie Parties and the Issuer
Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably
request; and
(p) the Representative shall have received evidence satisfactory to it and
its counsel that on or prior to the Closing Date A$ Class B Notes in
the principal amount required to be issued on the Closing Date in
accordance with the terms thereof have been duly authorized and issued
pursuant to the Basic Documents.
7. Indemnification and Contribution.
--------------------------------
(a) Each of Macquarie and the Manager, jointly and severally, agrees to
indemnify and hold harmless each Underwriter, each affiliate of an
Underwriter that assists such Underwriter in the distribution of the
Class A Notes, and each person, if any, that controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted) caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended
or supplemented if the Manager shall have furnished any amendments or
supplements thereto) (other than to the extent any losses, claims,
damages or liabilities arise as a result of any information under the
heading "Prepayment and Yield Considerations" in the Prospectus
Supplement), or caused by any omission or alleged omission to state
therein a
17
material fact required to be stated therein or necessary to make the
statements therein not misleading, except (i) insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon
and in conformity with information relating to any Underwriter
furnished to a Macquarie Party in writing by such Underwriter directly
or through the Representative expressly for use therein, or (ii) that
such indemnity with respect to the Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter)
from whom the person asserting any such loss, claim, damage or
liability purchased the Class A Notes which are the subject thereof if
such person did not receive a copy of the Prospectus (as amended or
supplemented) at or prior to the confirmation of the sale of such
Class A Notes to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of
a material fact contained in such Prospectus was corrected in the
Prospectus (as amended or supplemented).
(b) To the extent that any payment of damages by a Macquarie Party
pursuant to subsection 7(a) above is determined to be a payment of
damages pursuant to Prudential Standard APS 120 "Funds Management and
Securitisation", paragraph 15 of Guidance Note AGN 120.3, "Purchase
and Supply of Assets (including Securities issued by SPVs)", being
Guidance Note to Prudential Standard APS 120 "Funds Management and
Securitisation" or any successor thereto, such payment shall be
subject to the terms therein (or the terms of any equivalent provision
in any replacement of Prudential Standard APS 120 "Funds Management
and Securitisation").
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and Macquarie and each
person that controls any of the Macquarie Parties or the Issuer
Trustee within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Macquarie Parties or the Issuer Trustee to each
Underwriter, but only with reference to (i) information relating to
such Underwriter furnished to a Macquarie Party in writing by such
Underwriter directly or through the Representative expressly for use
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, and (ii) any Computational Materials and ABS Term
Sheets (each as defined below) delivered by such Underwriter to any
investor in the Class A Notes.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be
sought pursuant to subsections (a) or (c) above, such person (the
"Indemnified Person") shall promptly notify the person against whom
such indemnity may be sought (the "Indemnifying Person") in writing,
and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person
to represent the Indemnified Person and any others the Indemnifying
Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its
own
18
counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in
the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for the
Underwriters, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Class A Notes, and such control
persons of Underwriters shall be designated in writing by the
Representative and any such separate firm for the Manager, its
directors, its officers who sign the Registration Statement, the
Issuer Trustee and Macquarie and such control persons of any of the
Macquarie Parties or the Issuer Trustee shall be designated in writing
by the Manager. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an Indemnified Person shall have requested an Indemnifying
Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this subsection (d),
the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by
such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that
are the subject matter of such proceeding.
(e) If the indemnification provided for in subsections (a) or (c) above is
unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying
Person under such subsection, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Macquarie Parties and the Issuer
Trustee on the one hand, and the Underwriters on the other, from the
offering of the Class A Notes, and (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is
19
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Macquarie Parties
and the Issuer Trustee on the one hand, and of the Underwriters on the
other, in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Macquarie Parties and the Issuer Trustee on the one hand, and the
Underwriters on the other, shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before
deducting expenses) received by the Macquarie Parties and the Issuer
Trustee and the total underwriting discounts and the commissions
received by the Underwriters in respect thereof respectively bear to
the aggregate public offering price of the Class A Notes. The relative
fault of the Macquarie Parties and the Issuer Trustee on the one hand
and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Macquarie Parties
or the Issuer Trustee or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Macquarie Parties, the Issuer Trustee and the Underwriters agree
that it would not be just and equitable if contribution pursuant to
this Section were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in this subsection
(e) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person
in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of
the amount by which the total price at which the Class A Notes
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are
several in proportion to the respective principal amount of Class A
Notes set forth opposite their names in Schedule I hereto, and not
joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Macquarie Parties, the
Issuer Trustee and the Underwriters set forth in this Agreement shall
remain operative and in
20
full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on
behalf of the Macquarie Parties or the Issuer Trustee, its officers or
directors or any other person controlling the Macquarie Parties or the
Issuer Trustee and (iii) acceptance of and payment for any of the
Class A Notes.
8. Termination.
-----------
Notwithstanding anything herein contained, this Agreement may be terminated in
the absolute discretion of the Representative, by notice given to the Manager,
if after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by the New York Stock Exchange, (ii) trading of any securities of or guaranteed
by any of the Macquarie Parties or the Issuer Trustee shall have been suspended
on any exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York, Sydney, Australia or London, England
shall have been declared by either United States Federal, New York State,
Commonwealth of Australia, New South Wales State or related United Kingdom
authorities, or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Representative, is material and adverse and which, in the
judgment of the Representative, makes it impracticable to market the Class A
Notes on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness of Agreement; Default of Underwriters.
---------------------------------------------------
This Agreement shall become effective upon the execution and delivery hereof by
the parties hereto.
If on the Closing Date any one or more of the Underwriters shall fail or refuse
to purchase Class A Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Class A Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Class A
Notes to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Class A Notes set
forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Class A Notes set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representative
may specify, to purchase the Class A Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Class A Notes that any
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 9 by an amount in excess of one-ninth of such principal amount
of Class A Notes without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Class A Notes which it or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Class A Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of Class
A Notes to be purchased on such date, and arrangements satisfactory to the
Representative and the Manager for the purchase of such Class A Notes are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Manager. In any
such case either you or the Manager shall have the right to postpone the Closing
Date, but in no event for longer than
21
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 Macquarie Parties or the
Issuer Trustee to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason any of the Macquarie Parties or the Issuer
Trustee shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, Macquarie agrees
to reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. Fee Letter.
----------
Notwithstanding any term or provision herein in relation to fees and expenses,
any obligation of reimbursement of such fees or expenses by a Macquarie Party
shall be subject to, and where applicable, superceded by, the terms and
provisions of the Fee Letter.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process.
--------------------------------------------------------------------------
Each of the Macquarie Parties and the Issuer Trustee hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
Macquarie Parties irrevocably appoints Macquarie Equities (USA) Inc., 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the Issuer Trustee irrevocably
appoints CT Corporation, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, to act as authorized agents for the Macquarie Parties and the Issuer
Trustee, respectively, in the Borough of Manhattan in The City of New York upon
which process may be served in any such suit or proceeding, and agrees that
service or process upon such agent, and written notice of said service to it by
the person servicing the same to the address provided in Section 20, shall be
deemed in every respect effective service of process upon it in any such suit or
proceeding. Each of the Macquarie Parties and the Issuer Trustee further agrees
to take any and all action as may be necessary to maintain such designation and
appointment of such agent in full force and effect for so long as the Class A
Notes remain outstanding.
The obligation of any of the Macquarie Parties or the Issuer Trustee in respect
of any sum due to any Underwriter shall, notwithstanding any judgment in a
currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
each of the Macquarie Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
22
13. Foreign Taxes.
-------------
All payments to be made by the Issuer Trustee and the Macquarie Parties
hereunder shall be made without withholding or deduction for or on account of
any present or future taxes, duties or governmental charges whatsoever unless
the Issuer Trustee or such Macquarie Party, as applicable, is compelled by law
to deduct or withhold such taxes, duties or charges. In that event, the Issuer
Trustee or such Macquarie Party, as applicable, shall pay such additional
amounts as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been received
if no withholding or deduction had been made.
14. Waiver of Immunities.
--------------------
To the extent that any of the Issuer Trustee or any of the Macquarie Parties or
any of their properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any respect thereof, from setoff or counterclaim, from
the jurisdiction of any court, from service or process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, the Issuer Trustee and each of the Macquarie Parties, as
applicable, hereby irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity and consents to such relief and enforcement.
15. Judgment Currency.
-----------------
If any judgment or order in any legal proceeding against any of the Issuer
Trustee or any of the Macquarie Parties is given or made for any amount due
hereunder and such judgment or order is expressed and paid in a currency (the
"Judgment Currency") other than United States dollars and there is any variation
as between (i) the rate of exchange (the "Judgment Rate") at which the United
States dollar amount is converted into Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange (the "Market Rate") at which
the person to whom such amounts is paid (the "Payee") is able to purchase United
States dollars with the amount of the Judgment Currency actually received by the
holder, then the difference, expressed in United States dollars, between such
amount calculated at the Judgment Rate and such amount calculated at the Market
Rate shall be indemnified (a) if negative by the Issuer Trustee and the
Macquarie Parties, as applicable, to the Payee and (b) if positive by the Payee
to the Issuer Trustee and the Macquarie Parties, as applicable. The foregoing
indemnity shall constitute separate and independent obligations of the Issuer
Trustee and the Macquarie Parties or the Payee, as the case may be, and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate or exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
16. Selling Restrictions.
--------------------
(a) No prospectus in relation to the Class A Notes has been lodged with,
or registered by, the Australian Securities and Investments Commission
or the Australian Stock Exchange Limited. Accordingly, each of the
Underwriters,
23
severally and not jointly, represents and agrees that it has not
offered and will not offer, for issue, and has not invited and will
not invite applications for the issue of the Class A Notes or offer
the Class A Notes for sale or invite offers to purchase the Class A
Notes to, a person, unless the minimum amount payable to the relevant
Underwriter for the Class A Notes, after disregarding any amount paid
or payable or lent by the relevant Underwriter or any associate (as
determined under sections 10 to 17 of the Australian Corporations Act
2001) of that Underwriter, on acceptance of the offer by that person
is at least A$500,000 (or the equivalent thereof in any other
currency) calculated in accordance with section 708(a) of the
Australian Corporations Act and regulations 7.1.18(3) and 7.1.18(4) of
the Australian Corporations Regulations 2001.
(b) Each Underwriter, severally and not jointly, agrees with the Issuer
Trustee that, within 30 days of the date of this Agreement, it will
offer the Class A Notes for sale, or invite or induce offers to buy
the Class A Notes, by:
(i) making the Prospectus available for inspection on a Bloomberg
source and inviting potential investors to access the
Prospectus available on that Bloomberg source; or
(ii) making hard copies of the Prospectus for the Class A Notes
available for collection from the Underwriter in at least its
principal office in New York City or London and, in the case of
purchasers in the United States, by sending or giving copies of
the Prospectus to those purchasers.
(c) Each Underwriter agrees that it will not sell Class A Notes to, or
invite or induce offers for Class A Notes from:
(i) any associate of the Issuer Trustee or a Macquarie Party
specified in Schedule II or Schedule III; or
(ii) any other associate from time to time specified in writing to
the Underwriter by the Issuer Trustee or a Macquarie Party.
(d) Each Underwriter, severally and not jointly, agrees to: (i) provide
written advice to the Issuer Trustee and the Manager within 40 days of
the issue of the Class A Notes specifying that it has complied with
section 16(b); and (ii) cooperate with reasonable requests from the
Issuer Trustee for information for the purposes of assisting the
Issuer Trustee to demonstrate that the public offer test under section
128F of the Australian Tax Act has been satisfied in respect of the
Class A Notes; provided that no Underwriter shall be obliged to
disclose any information the disclosure of which would be contrary to
or prohibited by any relevant law, regulation or directive.
(e) Each Underwriter (severally and not jointly) agrees that:
(i) it has not offered or sold and, prior to the expiry of the
period of six months from the Closing Date, will not offer or
sell any Class A Notes to persons in the United Kingdom except
to persons whose ordinary
24
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the
purposes of their businesses or who it is reasonable to expect
will acquire, hold, manage or dispose of investments (as
principal or agent) for the purposes of their businesses, or
otherwise in circumstances that have not resulted and will not
result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations
1995, as amended;
(ii) it has complied and will comply with all applicable provisions
of the Financial Services and Markets Xxx 0000 with respect to
anything done by it in relation to the Class A Notes in, from
or otherwise involving the United Kingdom;
(iii) it is a person of a kind described in Articles 19 or 49 of the
Financial Services and Markets Xxx 0000 (Financial Promotion)
Order 2001, as amended; and
(iv) it has only communicated or caused to be communicated, and will
only communicate or cause to be communicated, in the United
Kingdom any document received by it in connection with the
issue of the Class A Notes to a person who is of a kind
described in Articles 19 or 49 of the Financial Services and
Markets Xxx 0000 (Financial Promotion) Order 2001, as amended,
or who is a person to whom such document may otherwise lawfully
be communicated.
(f) Each Underwriter, severally and not jointly, acknowledges that no
action has been taken to permit an offering of the Class A Notes in
any jurisdiction outside the United States where any action would be
required to be taken for that purpose. Each Underwriter will comply
with all applicable securities laws and regulations in each
jurisdiction in which it purchases, offer, sells or delivers Class A
Notes or has in its possession or distributes the Prospectus or any
other offering material, in all cases at its own expense.
17. Computational Materials, ABS Term Sheets and Electronic Copy of Preliminary
Prospectus.
---------------------------------------------------------------------------
(a) Each Underwriter represents and warrants to the Macquarie Parties that
it has not and will not distribute to any investor or prospective investor any
information that constitutes "Computational Materials" as defined in the
Commission's No-Action Letter, dated May 20, 1994, addressed to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx
Structured Asset Corporation (as made generally applicable to registrants,
issuers and underwriters by the Commission's response to the request of the
Public Securities Association dated May 27, 1994), with respect to the offering
of the Class A Notes.
(b) Each Underwriter represents and warrants to the Macquarie Parties that
it has not and will not distribute to any investor or prospective investor any
information that constitutes "ABS Term Sheets" as defined in the Commission's
No-Action Letter, dated February 13, 1995, addressed to the Public Securities
Association, with respect to the offering of the Class A Notes.
25
(c) Each Underwriter represents to the Macquarie Parties that it has
furnished (or will furnish) a printed copy of the final Prospectus to all
persons to whom it previously sent an electronic copy of the preliminary
Prospectus and/or the final Prospectus and to whom it will send a written
confirmation of sale prior to its receipt of settlement proceeds from each such
person.
18. Certain Matters Relating to the Issuer Trustee.
----------------------------------------------
The Issuer Trustee enters into this Agreement only in its capacity as trustee of
the Trust and in no other capacity. A liability 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 such liability. This
limitation of the Issuer Trustee's liability described in this Section applies
despite any other provision of this Agreement 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.
(a) The parties other than the Issuer Trustee may not xxx the Issuer
Trustee in respect of liabilities incurred by the Issuer Trustee
acting in its capacity as Issuer Trustee of the Trust in any capacity
other than as trustee of the Trust, including seeking the appointment
of a receiver (except in relation to the assets of the Trust) or a
liquidator, an administrator or any other similar person to the Issuer
Trustee or prove in any liquidation, administration or arrangements of
or affecting the Issuer Trustee (except in relation to the assets of
the Trust).
(b) The provisions of this Section 18 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied
because under the Trust Deed, this Agreement or any other Basic
Document or by operation of law there is a reduction in the extent of
the Issuer Trustee's indemnification or exoneration out of the assets
of the Trust as a result of the Issuer Trustee's fraud, negligence or
willful default.
(c) It is acknowledged that the Relevant Parties (as defined in the Note
Conditions) 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 under the Basic Documents) will be considered fraudulent,
negligent or a willful default for the purpose of this Agreement to
the extent to which the act or omission was caused or contributed to
by any failure by any Relevant Party or any other person who provides
services in respect of the Trust 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 the act or omission is
purported to be on behalf of the Issuer Trustee.
(d) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Agreement 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 the Issuer
Trustee's fraud, negligence or willful default.
26
(e) The Issuer Trustee is not obligated to do anything or refrain from
doing anything under or in connection with this Agreement (including
incur a liability) unless the Issuer Trustee's liability is limited in
the same manner as set out in this Section 18.
19. Successors.
----------
This Agreement shall inure to the benefit of and be binding upon the Macquarie
Parties, the Issuer Trustee, the Underwriters, each affiliate of any Underwriter
which assists such Underwriter in the distribution of the Class A Notes, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Class A Notes from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
20. Actions by Representative; Notices.
----------------------------------
Any action by the Underwriters hereunder may be taken by the Representative on
behalf of the Underwriters, and any such action taken by the Representative
shall be binding upon and enforceable against the Underwriters. All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representative at Deutsche Bank Securities Inc. at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Facsimile: (000) 000-0000, Attention: Xxxx Vamburns, Director .
Notices to the Manager shall be given to it at Macquarie Securitisation Limited,
Level 23, 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, Facsimile:
x00 0 0000-0000, Attention: The Treasurer; to the Issuer Trustee shall be given
to it at Perpetual Trustees Australia Limited, Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx,
Xxxxxx, XXX 0000, Facsimile: x00 0 0000 0000, Attention: Manager Securitisation
and to Macquarie shall be given to it x/x Xxxxxxxxx Xxxxxxxxxxxxxx Xxxxxxx,
Xxxxx 00, 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, Facsimile:
x00 0 0000-0000, Attention: The Treasurer.
21. 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.
27
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
MACQUARIE SECURITISATION LIMITED
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X'Xxxx
-------------------------------- --------------------------------
Name: Xxxxx Xxxxxxxxxx Name: Xxxxxxx X'Xxxx
Title: Attorney Title: Attorney
PERPETUAL TRUSTEES AUSTRALIA LIMITED
By: /s/ Xxxx Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx Xxxxxxxxx
Title: Attorney
MACQUARIE BANK LIMITED
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X'Xxxx
-------------------------------- --------------------------------
Name: Xxxxx Xxxxxxxxxx Name: Xxxxxxx X'Xxxx
Title: Attorney Title: Attorney
28
Accepted: August 13, 2003
DEUTSCHE BANK SECURITIES INC.
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
By: /s/ Xxxx Xxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
29
SCHEDULE I
UNDERWRITER PRINCIPAL AMOUNT OF CLASS A
NOTES TO BE PURCHASED
Deutsche Bank Securities Inc........................ Class A $600,000,000
X.X. Xxxxxx Securities Inc.......................... Class A $300,000,000
Credit Suisse First Boston LLC...................... Class A $300,000,000
Total....................................... $1,200,000,000
SCHEDULE II
List of Section 128F(9) Associates of the Issuer Trustee
ACT Nominees Limited
ASX Perpetual Registrars Limited
Australian Trustees Limited
Australian Trustees Pty 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 Custodians WA Pty Ltd
Perpetual Executors Nominees Ltd
Perpetual Fund Services Limited
Perpetual Investment Management Limited
Perpetual Nominees 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 Trustee Company 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
Queensland Trustees Pty Limited
Selwest Pty Ltd
Terrace Guardians Ltd
Xxxxxx Xxxxxxxx Finance Pty Limited
Xxxxxx Xxxxxxxx Limited
Xxxxxx Xxxxxxxx Partnership Pty Ltd
SCHEDULE III
List of Section 128F(9) Associates of the Macquarie Parties
A) List of Associates : Companies
Abalflow Trust
Airport Motorway Infrastructure No. 1 Limited
Aldisa Nominees Pty Limited
Aleatory Pty Limited
Australian Hotel Investment Pty Limited
B.E.S.T. Management Pty Limited
Bavian Pty Limited
BOND STREET AUSTRALIA LIMITED
Airport Motorway Custodians Limited
Bond Street Custodians Limited
Bond Street Lease Management Pty Limited
BOSTON AUSTRALIA LIMITED
Boston Leasing Pty Limited
CAMPUS INTERNATIONAL HOLDINGS PTY LIMITED
Concept Blue Property Pty Limited
Volatic Pty Limited
Volbing Pty Limited
CAMPUS INTERNATIONAL HOLDINGS TRUST
Berkeley Holdings Unit Trust
Berkeley Unit Trust
Canterbury Court Holdings Trust
Canterbury Court Unit Trust
Xxxxxxxxx Holdings Unit Trust
Xxxxxxxxx Unit Trust
Cazinon Pty Limited
Cemasta Pty Limited
Cenford Pty Limited
CHANNAR INVESTMENT NOMINEE PTY LIMITED
Pandrew Pty Limited
City Link Management Limited
Colanera Pty Limited
Colmoro Pty Limited
ConnectEast Pty Limited
Coriolis Water Services (Australia) Pty Limited
D-Auction Internet Pty Limited
Xxxxxx Pty Limited
Divco 12 Pty Limited
Divco 17 Pty Limited
*Divco 23 Unit Trust
Divco 23 Pty Limited
Divco 28 Pty Limited
Divco 38 Unit Trust
*Divco 42 Unit Trust
Divco 42 Pty Limited
*Divco 47 Unit Trust
Divco 47 Pty Limited
*Divco 51 Unit Trust
Divco 51 Pty Limited
*Divco 54 Unit Trust
Divco 54 Pty Limited
*Divco 61 Unit Trust
Divco 61 Pty Limited
Divco 68 Pty Limited
Divco 83 Unit Trust
Diversified CLO Investment No. 1 Inc.
EDIVISION INVESTMENTS PTY LIMITED
Financial Enrichment Pty Limited
XXXXXX PTY LIMITED
Tryptic Pty Limited
GALANTHUS AUSTRALIA PTY LIMITED
Xxxxxxx Pty Limited
Galanthus Leasing Pty Limited
Gatesun Pty Limited
Gemata Pty Limited
Gondor Pty Limited
Hafling Pty Limited
Hills Motorway Management Limited
MacQuarie South Kingscliff Pty Limited
(formerly Xxxxxx No. 1 Pty Limited
Horizon Energy Investment Management Limited
HUB X Pty Limited # (incorporated April 4, 2003)
Indemco Pty Limited
Infrastructure Investment No. 2 Limited [incorp. in Cayman Islands]
Infrastructure Investments No. 1 Pty Limited
Kallerad Pty Limited
Kepile Pty Limited
Liana Pty Limited
Mac Fund One Trust
MAC IT 2000 Pty Limited
Macquarie (1 Xxxxxxxxx Street) Nominees Pty Ltd
(formerly Xxxxxx No. 3 Pty Limited)
Macquarie (Arncliffe) Pty Limited
Macquarie (Asia) Pte Limited [incorp. in Singapore]
MACQUARIE (HK) FINANCIAL SERVICES LIMITED * [INCORP. IN HKG]
The Falcon General Partnership (formed 6 December 2001)
[formed in HKG]
MACQUARIE ACCEPTANCES LIMITED
BOND STREET INVESTMENTS PTY LIMITED
CH4 Pty Limited (minority interest 10%)
CH 4 Operations Pty Ltd
Macquarie Holdings Trust
Macquarie Investment Trust
Macquarie Thirty-Fourth Aviation Leasing Pty Limited
Macquarie Thirty-Seventh Aviation Leasing Pty Limited
Macquarie Thirty-Third Aviation Leasing Pty Limited
Sabco Australia Limited
Xxxxxxxx Pty Limited
Xxxxxxx Pty Limited
GLORIOLE PTY LIMITED
LANROD PTY LIMITED
VALCORA PTY LIMITED
Macquarie Nominees ACT Pty Limited
Hillsam Nominees Pty Limited
Idameneo (No. 31) Pty Limited
Macquarie (A.C.T. Property Investments) Pty Limited
(formerly Macquarie Thirteenth Aviation Leasing Pty Limited)
MACQUARIE ASSET MANAGEMENT LIMITED
Coldava Limited
Jubilee Pty Limited
Macquarie Deposits Pty Limited
MACQUARIE NZ HOLDINGS LIMITED
MACQUARIE GROUP NEW ZEALAND LIMITED [incorp. in NZ]
MACQUARIE NEW ZEALAND LIMITED [incorp. in NZ]
MACQUARIE EQUITIES NEW ZEALAND LIMITED [incorp. In NZ]
Macquarie Equities Custodians Limited [incorp. in NZ]
Macquarie Equities Nominees Limited [incorp. in NZ]
Macquarie Private Portfolio Management (NZ) Pty Limited
[incorp. in NZ]
Macquarie Infrastructure (NZ) Limited [incorp. in NZ]
(formerly Macquarie Property (NZ) Limited)
New Zealand Cash Management Trust Limited [incorp. in NZ]
Macquarie PH (UK) Limited [incorp. In UK]
Parsees Pty Limited
Telbane Pty Limited
Totara Pty Limited
Tywyn Pty Limited
UTOPIA PTY LIMITED (MINORITY INTEREST 43%)
CORPORATE CAPITAL EQUIPMENT FINANCING PTY LIMITED
Mendlesham Corporation Pty Limited
Naysin Pty Limited
Old Brampton Corporation Pty Limited
Ophidian Pty Limited
Ornate Pty Limited
Poltava Pty Limited
PRAEN PTY LIMITED
Grosvenor Office Equipment Hire Pty Limited
Reconnoitre Pty Limited
Resinal Pty Limited
Second Resinal Pty Limited
Dalou Pty Limited
Fortescue Gardens Pty Limited
Rovenda Pty Limited
Rovny Pty Limited
Samspin Limited
Shadoof Pty Limited
Macquarie Asset Services (Qld) Pty Limited
Macquarie Asset Services (Vic) Pty Limited
MACQUARIE AUSTRALIA PTY LIMITED
Macquarie Investment (Hong Kong) Limited [incorp. in HKG]
Sucette Pty Limited
Macquarie Bank Superannuation (No. 2) Pty Limited
Macquarie Bank Superannuation Pty Limited
MACQUARIE DIRECT INVESTMENT LIMITED
Macquarie Direct Investment A Limited
Macquarie Direct Investment B Limited
Macquarie First Aviation Leasing Pty Limited
Macquarie Funds Management Limited
MACQUARIE INVESTMENT MANAGEMENT LIMITED
Macquarie-IMM Investment Management Limited [incorp. in Korea]
(minority interest 35%)
Macquarie Lease Management Pty Limited
Macquarie Lease Nominees Pty Limited
MACQUARIE LEASING QLD PTY LIMITED
Macquarie Leasing Vic. Pty Limited
MBL River Links Pty Limited
(formerly Macquarie Mortgage Management Pty Limited)
Macquarie Office Management Limited
Macquarie Property Services Pty Limited
Macquarie Twelfth Aviation Leasing Pty Limited
Macquarie Twentieth Aviation Leasing Pty Limited
Macquarie Twenty-Eighth Aviation Leasing Pty Limited
Macquarie Twenty-Third Aviation Leasing Pty Limited
MBL Realty Investment Management Pty Limited
Memnon Pty Limited
Olary Pty Limited**
Oxton Pty Limited
Australian Index Money Managers Limited*
Macquarie Admin Services Pty Limited
Macquarie Airports Management Limited
(formerly Bulwer Island Cogen Limited)
Macquarie Alliances Pty Limited
Macquarie Alternative Assets Management Limited
(incorporated December 23, 2002)
Macquarie Alternative Investments Limited
(formerly Macquarie Alternative Investments Pty Limited,
Macquarie Private Wealth Management Pty Limited)
MACQUARIE ASIA HOLDINGS PTY LIMITED
MACQUARIE INDONESIA HOLDINGS PTY LIMITED
PT Macquarie Konsultan Indonesia [incorp. in Indonesia]
Macquarie Asia Limited [incorp. in HKG]
Macquarie Asia Property Advisors Limited [incorp. in Bermuda]
Macquarie Asiawide Management Limited [incorp. in HKG]
Macquarie Asset Services (ACT) Pty Limited
Macquarie Asset Services (WA) Pty Limited
Macquarie Asset Services Limited
MACQUARIE AUSTRALIA (HK) LIMITED [incorp. in HK]
Macquarie Pacific Management Limited [incorp. in Xxxx Islands]
Macquarie Australia Corporate Finance Limited
Macquarie Australia Infrastructure Pty Limited
Macquarie Australia Lease Management Pty Limited
Macquarie Australia Management Services Pty Limited
Macquarie Australia Securities Limited
Macquarie Australia Technology Pty Limited
Macquarie Aviation Capital Group
Macquarie Aviation Capital Finance Limited
Macquarie Aviation Capital Limited
Macquarie Business Broking Services Pty Limited
Macquarie Capital Markets Nominees Pty Limited
Macquarie CLO Investment No. 1 Pty Limited
Macquarie CLO Investment No. 2 Pty Limited
MACQUARIE COMMERCIAL LEASING VIC. PTY LIMITED
Softwood View Pty Limited
Macquarie Communications Infrastructure Management Limited
Macquarie Concept Blue Pty Limited
Macquarie Coolibah Management Limited
Macquarie Corporate Finance (USA) Inc. [incorp. in USA]
MACQUARIE CORPORATE FINANCE HOLDINGS PTY LIMITED
(formerly Macquarie Twenty-Ninth Aviation Leasing Pty Limited)
MACQUARIE CORPORATE FINANCE LIMITED
Airport Motorway Infrastructure No. 3 Limited
Airport Motorway Infrastructure No. 4 Limited
Macquarie (Hong Kong) Limited [incorp. in HKG]
MACQUARIE (JAPAN) LIMITED * [incorp. in Japan]
JPF Investment Ltd (incorporated 4 June 2002)
MJL Ace Limited * [incorp. in Japan]
MJL Bay Limited * [incorp. in Japan]
MJL Cookie Limited (incorp. in Japan)
MJL Delta Limited
MJL Esprit Limited
MJL Flap Limited
MJL Gamma Limited
MJL Hawk Limited
MJL Impulse Limited
MJL Jet Limited
Macquarie (Malaysia) Sdn Bhd [incorp. in Malaysia]
Macquarie Aircraft Leasing No. 1 Limited
Macquarie Africa (Proprietary) Limited [incorp. in South Africa]
Macquarie Asset Finance Limited
Macquarie Aviation (No. 1) Limited
Macquarie France Holdings Pty Limited
Macquarie Infrastructure Limited
Macquarie Infrastructure No. 2 Limited
MACQUARIE NORTH AMERICA LIMITED * [INCORP. IN CANADA]
Macquarie Canadian Infrastructure Management Limited
[incorp. in Canada]
Macquarie Capital (Canada) Ltd
Macquarie North America Securities Limited [incorp. in Canada]
Macquarie Essential Assets Partnership
Macquarie Transmission Alberta Limited [incorp. in Canada]
(formerly 941534 Alberta Limited)
Macquarie Securitisation (OBU) Pty Limited
(formerly Macquarie Securitisation (OBU) Limited, Bulwer Island
Cogen Holdings Limited)
Macquarie Structured Products (International) Limited
(formerly Macquarie Corporate Finance International Limited)
Tadina Pty Limited
Tegny Pty Limited
Tenata Pty Limited
Macquarie CountryWide Management Limited
Macquarie Development Capital II Pty Limited
Macquarie Development Capital Pty Limited
Macquarie Development Direction Pty Limited
MACQUARIE DIRECT PROPERTY MANAGEMENT LIMITED
Principle Holdings No. 2 Pty Limited
Macquarie Distribution Pty Limited
MACQUARIE DIVERSIFIED INVESTMENTS NO 2 PTY LTD
Macquarie Investments No. 2 Limited Partnership
MACQUARIE DIVERSIFIED INVESTMENTS NO 3 PTY LTD
Macquarie Investments No. 3 Limited Partnership
MACQUARIE DIVERSIFIED PORTFOLIO INVESTMENTS PTY LIMITED
MACQUARIE DIVERSIFIED INVESTMENTS LIMITED PARTNERSHIP
(27% MINORITY OWNERSHIP)
Macquarie Diversified Investment Services Pty Limited
Macquarie Domestic Hedge Fund Management Limited
Macquarie Equipment Finance Pty Limited
Macquarie Equities (Asia) Limited [incorp. in HKG]
MACQUARIE EQUITIES (AUSTRALIA) LIMITED
Belike Nominees Pty Limited
Buttonwood Nominees Pty Limited
Elise Nominees Pty Limited
Macquarie Securities (Asia) Pty Limited
Nanway Nominees Pty Limited
Rema Nominees Pty Limited
Woodross Nominees Pty Limited
MACQUARIE EQUITIES (US) HOLDINGS PTY LIMITED
Macquarie Equities Brasil Limitada [incorp. in Brazil]
MACQUARIE HOLDINGS (USA) INC. [incorp. in USA]
Macquarie Americas Corp [incorp. in USA]
Macquarie Brasil Limitada [incorp. in Brazil]
Macquarie Electronics Consulting Inc.
Macquarie Electronics USA Inc.
MACQUARIE REAL ESTATE INC. [incorp. in USA]
(formerly Macquarie (Delaware) Inc.)
MACQUARIE MORTGAGES USA INC. [incorp. in USA]
(merged with Macquarie Mortgages Financing Inc.)
Macquarie Real Estate Finance Inc. [incorp. in USA]
Macquarie Equities (USA) Inc. [incorp. in USA]
MACQUARIE INC. [incorp. in USA]
Macquarie Futures Inc. [incorp. in USA]
Macquarie Real Estate Finance Consulting Inc. [incorp. in USA]
MACQUARIE EQUITIES LIMITED
Dexin Nominees Pty Limited
Equitas Nominees Pty Limited
Idameneo (No. 79) Nominees Pty Limited
Uphill Nominees Pty Limited
Macquarie Equity Capital Markets Limited
MACQUARIE EUROPEAN HOLDINGS PTY LIMITED
Macquarie Equities (UK) Limited [incorp. in UK]
Macquarie Filmed Investments Pty Limited
MACQUARIE FINANCE LIMITED
Macquarie Syndication (No. 4) Pty Limited
Macquarie Finance (NZ) Limited [incorp. in NZ]
Macquarie Financial Products Management Limited
Macquarie Fleet Finance Pty Limited
Macquarie Fleet Leasing Pty Limited
Macquarie Fourteenth Aviation Leasing Pty Limited
Macquarie Forestry Services Pty Limited
Macquarie Funds Management Hong Kong Limited [incorp. In HKG]
Macquarie Health Holdings Pty Ltd (incorporated 10 May 2002)
Macquarie Infrastructure Debt Management Limited
Macquarie Infrastructure Funds Management Limited
Macquarie Infrastructure No. 4 Pty Limited
Macquarie International Finance Limited
(formerly Wealth Nominees Pty Limited)
Macquarie Investment Management
(UK Limited)
Macquarie Infrastructure Investment Management (UK) Limited
MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED
AMT Management Limited
Macquarie International Asset Management Co. Limited
Macquarie International Capital Advisors Pty Limited
Macquarie International Capital Markets Limited [incorp. in HKG]
MACQUARIE INTERNATIONAL LIMITED [incorp. in UK]
Macquarie Finance (UK) Limited [incorp. in UK]
Macquarie International Property Services Pty Limited
MACQUARIE INTERNATIONALE HOLDINGS LIMITED [INCORP. IN UK]
MACQUARIE CAPITAL LIMITED [incorp. in United Kingdom]
Macquarie Capital GmbH [incorp. in Austria]
Macquarie Capital Korea Co Limited
(formerly Macquarie IT Korea Co Limited)
Macquarie Investment Services Limited
Macquarie Korea Co. Limited [incorp. in Korea]
MACQUARIE LEASING NSW PTY LIMITED
Acuba Pty Limited
Macquarie Leasing Pty Limited
Macquarie Leasing (NZ) Limited [incorp. in NZ]
Macquarie Leasing (UK) Limited [incorp. in UK]
Macquarie Leisure Management Limited
Macquarie Life Limited
Macquarie Marinas Management Limited
Macquarie Mortgages Pty Limited
Macquarie N.T. Leasing Pty Limited
Macquarie Options Pty Limited
Macquarie Photonics Pty Limited
Macquarie Portfolio Services Pty Limited
Macquarie PRISM Pty Limited
Macquarie Private Portfolio Management Limited
Macquarie Project Finance Pty Limited
Macquarie Property Development Finance Limited
MACQUARIE PROPERTY INTERNATIONAL PTY LIMITED
MACQUARIE PROPERTY CHINA PTY LIMITED
Macquarie (Tianjin) Property Services Co. Limited [incorp. in China]
Sedulous Investments Pty Limited
Macquarie Property Finance Limited [incorp. in NZ]
Macquarie Property (OBU) Pty Limited
Macquarie Real Estate Asia Limited
(formerly Macquarie Property Management (International) Limited)
Macquarie Real Estate Equity Fund No. 2 Pty Limited
Macquarie Realty Services Australia Pty Limited
Macquarie Realty Services Pty Limited
MACQUARIE REGIONAL SHAREHOLDINGS (UK) LIMITED
Ropemaker Street Investments Limited
Macquarie Risk Management Advisory Pty Limited
MACQUARIE SCIENCE HOLDINGS LIMITED
Garachine Pty Limited
MACQUARIE SECURITIES LIMITED [incorp. in NZ]
MACQUARIE CAPITAL (NZ) LIMITED
(formerly Ojai Holdings Limited)
Macquarie I.T. (NZ) Limited [incorp. in NZ]
Worldwide Parking Group Limited (incorp. 27 March 2002)
[incorp. in NZ]
Macquarie Securities Management Pty Limited
MACQUARIE SECURITISATION (HONG KONG) LIMITED [incorp. in HKG]
Macquarie Securitisation Limited
Macquarie Services (Hong Kong) Limited [incorp. in HKG]
Macquarie Specialised Asset Management 2 Limited
Macquarie Specialised Asset Management Limited
Macquarie Strata Services Pty Limited
Macquarie Structured Equities Pty Limited
Macquarie Structured Products Australia Limited
Macquarie Syndicate Management Pty Limited
Macquarie Syndicate Nominee Pty Limited
Macquarie Syndication (No. 7) Pty Limited
Macquarie Syndication (No. 12) Pty Limited
Macquarie Syndication (No. 22) Pty Limited
MACQUARIE TECHNOLOGY GROUP PTY LIMITED
MACQUARIE TECHNOLOGIES (MALAYSIA) SDN BHD [incorp. in Malaysia]
Macquarie IT Sdn Bhd [incorp. in Malaysia]
Macquarie Technology Investments Limited
Macquarie Technology Ventures Nominee Pty Limited
Macquarie Technology Ventures Pty Limited
MACQUARIE TELECOMMUNICATIONS HOLDINGS PTY LIMITED
(incorporated 28 May 2002)
NTL TELECOMMUNICATIONS HOLDINGS PTY LIMITED (acquired 2 April 2002)
ntl Telecommunications Pty Limited (acquired 2 April 2002)
Macquarie Tourism & Leisure Pty Limited
Macquarie Treasury Management Limited [incorp. in Bermuda]
Macquarie Treasury Nominees Pty Limited
Macquarie Treasury Private Trustee Company Limited [incorp. in Bermuda]
Macquarie Twenty-Seventh Aviation Leasing Pty Limited
Macquarie Real Estate Asia Nominees Pty Limited
(formerly Macquarie Vue Nominees Pty Limited)
MAIL HOLDINGS LIMITED
CASL Financial Services Pty Limited
MACQUARIE AUSTRALIA INTERNATIONAL LIMITED
Macquarie Risk Advisory Services Limited
Margin Lending Nominees Pty Limited
MASL No. 2 Pty Limited
(formerly Macquarie Securitisation No. 2 Pty Limited)
MC Capital Group
Macquarie Electronics Limited
Macquarie Electronics Remarketing Limited
MC Capital Holdings No. 1 Pty Limited
MC Capital Holdings No. 2 Pty Limited
MCF Leasing Pty Limited
MECML Nominees Pty Limited
Melbourne Airlink Pty Limited
Merit Management No. 1 Pty Limited
Merit No. 1 Pty Limited
Xxxxxx Specialist Funds Management Limited
(formerly Macquarie IB Limited, Xxxxxx Specialist Fund
Management Limited)
Oarale Pty Limited
PACIFIC RIM OPERATIONS LIMITED
PARAY PTY LIMITED
Macquarie Syndication (No. 23) Pty Limited
Placate Pty Limited
PUMA Management Pty Limited
Q Rent Pty Limited
Quintet Funds Management Limited
Reboot PC Logistics Pty Limited
Residco Pty Limited
Royal Parade Apartments Pty Limited
Rugarno Pty Limited
Santorini One Pty Limited
SECURE Australia Management Pty Limited
Secure Australia II Limited
SPAL Limited
Structured Prime Asset Receivables (SPARS) No.1 Pty Limited
Sucrafeed No. 1 Pty Limited
Sucrafeed No. 2 Pty Limited
SYNDICATED ASSET MANAGEMENT PTY LIMITED
RP Developments Pty Limited
Talamba Pty Limited
Taralie Pty Limited
Tegensee Pty Limited
TERRITORY AIRPORT LIMITED
The Victorian Rolling Stock Leasing Company Pty Limited
TranSA Pty Limited
TranSA Services Pty Limited
URBAN PACIFIC LIMITED
Alloca (No. 4) Pty Limited
UPL River Links Investments Pty Ltd
Kensington Banks Pty Limited
Mont Park Development Company Pty Limited
SMR Developments Pty Limited
UPL Developments Pty Limited
UPL (SA) Pty Limited
UPL (WA) Pty Limited
Urban Pacific Springthorpe Investment Pty Limited
Vue Apartments Pty Limited
Vanne Pty Limited
VicWire Partnership Pty Limited
Vintage Golf Operations Pty Limited
(formerly Xxxxx Hospital Group Pty Limited)
Wuxta Pty Limited
Zoffanies Pty Limited
B) List of Associates : Joint Ventures / Partnerships
000 Xxxxxxx Xxxxxx Trust
AmInvestment Management Sdn Bhd
AmInvestment Services Bhd
Artsim Pty Limited
August Trading Limited
Austian (Tianjin) Real Estate Development Co. Limited
Bondi Beach Railway Limited
China Housing Investment Fund No. 6
Develop Co Pty Limited
First China Property Group Limited
Four Corners Capital Management LLC
Green Square Joint Venture
Helmsman Funds Management Limited
Helmsman Funds Management Pty Limited
Helmsman Nominees Pty Limited
ICA Property Development Fund No. 1 Pty Limited
ICA Property Development Fund No. 2 Pty Limited
Innofin Pty Limited
International Retail Limited
Macquarie Capital Partners LLC
Macquarie CCY Feeder Fund
Macquarie FX Feeder Fund
Macquarie FX Feeder Fund No. 2
Macquarie Xxxxxxx Management Limited
Macquarie Offshore Feeder Fund
Macquarie Offshore Feeder Fund Xx. 0
Xxxxxxxxx Xxxxxxxx Xxxxxx Xxxx Xx. 0
Macquarie Pro-Logis Management LLC
Macquarie Real Estate Equity Fund No. 1 Pty Limited
Macquarie Securitisation Shanghai Co. Limited
Macquarie-IMM Asset Management Co Limited
Medallist Developments Pty Limited
Medallist Golf Developments Trust
Medallist Holdings Inc.
Mining Equipment Company Pty Limited
MP Management LLC
MPI Private Trustee Limited
OMNI Investments Pty Limited
River Links Development Pty Limited
SecuriClear Limited
Shinhan Macquarie Financial Advisory Co Limited
Southern African Infrastructure Fund Managers (Proprietary) Limited
Tasman Economics Pty Limited
The Cannery Unit Trust
The Financial Arena Pty Limited
Tianjin Macquarie Property Development Management Company Limited
Vytel Spectrum Pty Limited
TABLE OF CONTENTS
1. Purchase and Sale........................................................ 2
2. Offering................................................................. 3
3. Delivery and Payment..................................................... 6
4. Representations and Warranties of the Macquarie Parties and
the Issuer Trustee....................................................... 7
5. Covenants and Agreements.................................................14
6. Conditions to the Obligations of the Underwriters........................17
7. Indemnification and Contribution.........................................21
8. Termination..............................................................24
9. Effectiveness of Agreement; Default of Underwriters......................25
10. Expenses upon Termination................................................25
11. Fee Letter...............................................................26
12. Consent to Jurisdiction; Appointment of Agent to Accept Service
of Process...............................................................26
13. Foreign Taxes............................................................26
14. Waiver of Immunities.....................................................27
15. Judgment Currency........................................................27
16. Selling Restrictions.....................................................27
17. Certain Matters Relating to the Issuer Trustee...........................29
18. Successors...............................................................30
19. Actions by Representative; Notices.......................................30
20. Counterparts: Applicable Law.............................................30
Schedule I
Schedule II
Schedule III
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