Exhibit 1.1
Underwriting Agreement
Table of Contents
Page
1. Purchase and Sale................................................... 3
2. Offering............................................................ 3
3. Delivery and Payment................................................ 3
4. Representations and Warranties...................................... 4
I. Representations and Warranties of the Issuer Trustee....... 4
II. Representations and Warranties of the CBA Parties.......... 6
III. Representations and Warranties of the Manager.............. 9
5. Covenants and Agreements............................................ 11
I. Covenants and Agreements of the Issuer Trustee............. 11
II. Covenants and Agreements of the CBA Parties................ 12
III. Selling Restrictions....................................... 16
IV. Manager Direction to Issuer Trustee........................ 18
V. Covenants and Agreements of the Underwriters............... 18
6. Conditions to the Obligations of the Underwriters................... 22
7. Indemnification and Contribution.................................... 24
8. Termination......................................................... 29
9. Effectiveness of Agreement; Default of Underwriters................. 29
10. Expenses Upon Termination........................................... 30
11. Successors.......................................................... 30
12. Certain Matters Relating to the Issuer Trustee...................... 30
13. Actions by Representative; Notices.................................. 31
14. Counterparts; Applicable Law........................................ 31
15. Submission to Jurisdiction.......................................... 31
16. Appointments of Process Agent....................................... 32
17. Currency Indemnity.................................................. 33
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EXHIBIT 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
US$1,000,000,000
Perpetual Trustee Company Limited
SERIES 2002-1G MEDALLION TRUST
Class A-1 Mortgage Backed Floating Rate Notes Due 2033
UNDERWRITING AGREEMENT
----------------------
February 14, 2002
Deutsche Banc Alex. Xxxxx Inc.
("Deutsche Bank")
As Representative of the
Several Underwriters Listed
in Schedule I
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Perpetual Trustee Company Limited, ABN 42 000 001 007, a company
incorporated in New South Wales, Australia ("Perpetual"), acting in its capacity
as trustee of the Series 2002-1G Medallion Trust (the "Trust", and Perpetual in
that capacity being the "Issuer Trustee"), acting at the direction of
Securitisation Advisory Services Pty Limited, ABN 88 064 133 946, a company
incorporated in New South Wales, Australia, as manager of the Trust (the
"Manager"), proposes to sell to the several Underwriters listed in Schedule I to
this Agreement (the "Underwriters"), for whom Deutsche Bank is acting as
representative (the "Representative"), US$1,000,000,000 aggregate principal
amount of Class A-1 Mortgage Backed Floating Rate Notes due 2033 (the "Class A-1
Notes") issued by the Issuer Trustee. The Manager is a wholly-owned subsidiary
of Commonwealth Bank of Australia, ABN 48 123 123 124, a company incorporated in
the Australian Capital Territory, Australia ("CBA").
The Class A-1 Notes will be secured by the assets of the Trust in
accordance with the Security Trust Deed. The assets of the Trust means all
assets and property, real and personal, (including choses in action and other
rights), tangible and intangible, present or future, held by the Issuer Trustee
from time to time, as trustee of the Trust including, among other things: (i)
rights specified in the Security Trust Deed and the Note Trust Deed in a pool of
variable and fixed rate residential mortgage loans (the "Mortgage Loans") (such
rights, the "Mortgage Loan Rights" (as defined on the next page)) and certain
moneys received under the Mortgage Loans after February 7, 2002 (the "Cutoff
Date"), (ii) the benefits of all covenants, agreements, undertakings,
representations, warranties and other choses in action in favor of the Issuer
Trustee under the Transaction Documents (as defined in the Series Supplement),
(iii) the Collection Account and (iv) all other assets that comprise the Charged
Property (as defined in the Security
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Trust Deed). The Mortgage Loans will be sold to the Issuer Trustee by CBA and
Homepath Pty Limited ("Homepath") (in such capacity, the "Sellers") and will be
serviced for the Issuer Trustee by CBA (in such capacity, the "Servicer").
The Trust was created pursuant to a master trust deed dated October 8,
1997, as amended from time to time (the "Master Trust Deed") between the Manager
and Perpetual and a series supplement dated February 7, 2002 (the "Series
Supplement"), between CBA (as Seller and Servicer), the Manager and the Issuer
Trustee, which describes, among other things, the Trust and the underlying cash
flow relating to the Class A-1 Notes. The Class A-1 Notes will be issued
pursuant to a Note Trust Deed to be dated February 14, 2002 among the Issuer
Trustee, the Manager and The Bank of New York, New York branch (the "US Dollar
Note Trustee").
The Class A-1 Notes will be issued in an aggregate principal amount of
US$1,000,000,000 which is equal to approximately 78.23% of the aggregate balance
of the Mortgage Loans as of the Cutoff Date. The Class A-2 Notes will be equal
to approximately 20.18% of the aggregate principal amount of Mortgage Loans as
of the Cutoff Date, and the Class B Notes will be equal to approximately 1.59%
of the aggregate principal amount of the Mortgage Loans as of the Cutoff Date.
The assets of the Trust will also secure under the Security Trust Deed, among
other things, any Redraw Bonds (as defined in the Series Supplement) that may be
issued after the date of this Agreement and the Issuer Trustee's obligations
under the Liquidity Facility. The Class A-2 Notes, the Class B Notes and the
Redraw Bonds are collectively referred to as the "A$ Securities." The Class A-1
Notes and the A$ Securities are collectively referred to as the "Notes."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (Reg. No. 333-75072), including a prospectus, relating to the Class
A-1 Notes. The registration statement as amended at the time when it became
effective, or, if any post-effective amendment has been filed with respect
thereto, as amended by the most recent post-effective amendment at the time of
its effectiveness, is referred to in this Agreement as the "Registration
Statement", the form of base prospectus included in the Registration Statement
as most recently filed with the Commission is referred to as the "Base
Prospectus" and the form of the prospectus which includes the Base Prospectus
and a prospectus supplement describing the Class A-1 Notes and the offering
thereof (the "Prospectus Supplement") which prospectus is first filed on or
after the date of this Agreement in accordance with Rule 424(b) is referred to
in this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean collectively: the
Master Trust Deed (in so far as it applies to the Trust), the Series Supplement,
the Notes, the Security Trust Deed, the Note Trust Deed, the Agency Agreement,
the Dealer Agreement, the Liquidity Facility Agreement, the Standby Redraw
Facility Agreement, the Currency Swap Agreements, the Interest Rate Swap
Agreements, the Mortgage Insurance Policies, any other document which is agreed
to by the Manager and the Issuer Trustee to be a Transaction Document in
relation to the Trust under clause 1.6(a)(i) of the Series Supplement, the DTC
Letter of Representations, any undertakings given to Euroclear or Clearstream
Banking, societe anonyme ("Clearstream") in connection with the Book Entry
Notes, and any other contract, agreement or instrument which is
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specified in the draft settlement agenda dated February 4, 2002 prepared by
Xxxxxxx Xxx in connection with the issuance and sale of the Class A-1 Notes. CBA
and the Manager are each a "CBA Party" and collectively are referred to as the
"CBA Parties". "Effective Date" shall mean the latest of the dates that the
Registration Statement or the most recent post-effective amendment thereto
became effective. "Rule 424" refers to such rule under the Securities Act. To
the extent not defined herein, capitalized terms used herein have the meanings
assigned to such terms in the Series Supplement.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity and reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the CBA Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale.
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(a) The Issuer Trustee, at the direction of the Manager, agrees to
sell, and the Manager agrees to direct the Issuer Trustee to sell, the Class A-1
Notes to the several Underwriters as hereinafter provided, and each Underwriter,
upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to purchase, severally and
not jointly, from the Issuer Trustee, the respective principal amounts of Class
A-1 Notes set forth opposite such Underwriter's name in Schedule I hereto at a
price equal to 100% of their principal amount.
(b) In connection with such purchase, CBA will pay in immediately
available funds to the Underwriters the commissions payable under the letter
agreement relating to fees and expenses between CBA and the Representative ("Fee
Letter").
(c) Deutsche Bank agrees to pay for any expenses incurred by the CBA
Parties in connection with any "roadshow" presentation to potential investors.
2. Offering. The CBA Parties and the Issuer Trustee understand that the
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Underwriters intend to make a public offering of their respective portions of
the Class A-1 Notes upon the terms set forth in the Prospectus as soon after (A)
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of Deutsche Bank is
advisable.
3. Delivery and Payment. Payment for the Class A-1 Notes shall be made by
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wire transfer in immediately available funds to the account specified by the
Issuer Trustee to Deutsche Bank no later than 12:00 noon, New York City time on
February 21, 2002, or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as Deutsche Bank and the Manager
may agree upon in writing. The time and date of such payment are referred to
herein as the "Closing Date". As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
New York City, Sydney and London.
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Payment for the Class A-1 Notes shall be made against delivery to the
nominee of the Depository Trust Company for the account of Deutsche Bank and for
the respective accounts of the several Underwriters of one or more fully
registered global book-entry notes (the "Book-Entry Notes") representing
US$1,000,000,000 in aggregate Principal Amount of Class A-1 Notes, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Class A-1 Notes duly paid by the Issuer Trustee. The Book-Entry Notes will
be made available for inspection by Deutsche Bank at the offices of Xxxxx Xxxxx,
Xxxx & Maw at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M.,
New York City time, on the Business Day prior to the Closing Date. Interests in
any Book Entry Notes will be held only in Book Entry form through DTC, except in
limited circumstances described in the Prospectus.
4. Representations and Warranties.
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I. Representations and Warranties of the Issuer Trustee.
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The Issuer Trustee represents and warrants to each Underwriter and the CBA
Parties as of the date of this Agreement and as of the Closing Date, and agrees
with each Underwriter and the CBA Parties, that:
(a) since the respective dates as of which information is provided in
the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting the
general affairs, business, prospects, management, or results of operations,
condition (financial or otherwise) of Perpetual or the Trust except as disclosed
in the Prospectus which is material in the context of performing the Issuer
Trustee's obligations and duties under the Notes and each Basic Document to
which it is or is to be party;
(b) Perpetual has been duly incorporated and is validly existing as a
corporation under the laws of Australia, with power and authority (corporate and
other) to conduct its business as described in the Prospectus, and to enter into
and perform the Issuer Trustee's obligations under this Agreement and the Basic
Documents and Perpetual has been duly qualified for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
conducts any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material adverse
effect on the transactions contemplated herein or in the Basic Documents;
(c) Perpetual has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by Perpetual, and, when the
Class A-1 Notes have been issued (and duly authenticated by the US Dollar Note
Trustee), delivered and paid for pursuant to this Agreement, they will
constitute valid and binding obligations of the Issuer Trustee entitled to the
benefits of the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable principles;
(e) the execution, delivery and performance by Perpetual of each of
the Basic Documents to which it either is, or is to be, a party and this
Agreement has been duly authorized
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by Perpetual and, when executed and delivered by it and the other parties
thereto, each of the Basic Documents will constitute a legal, valid and binding
obligation of the Issuer Trustee, enforceable against it in accordance with its
terms, subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors rights generally and to general equitable
principles;
(f) Perpetual is not, nor with the giving of notice or lapse of time
or both will be, in violation of or in default under: (i) its constitution or
(ii) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which either it is a party or by which it or any of its
properties is bound, except in the case of (ii), for violations and defaults
which individually and in the aggregate would not have a material adverse effect
on the transactions contemplated in or in the Basic Documents; the issue and
sale of the Notes and the performance by the Issuer Trustee of all of the
provisions of the Issuer Trustee's obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions herein and
therein contemplated will not (I) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or
assets is subject, (II) result in any violation of the provisions of its
constitution or any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over it, or any
of its properties; or (III) result in the creation or imposition of any lien or
encumbrance upon any of its property pursuant to the terms of any indenture,
mortgage, contract or other instrument other than pursuant to the Basic
Documents; and no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the Issuer
Trustee of the transactions contemplated by this Agreement or the Basic
Documents, except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (the latter, including such applicable rules and
regulations, the "Trust Indenture Act") and as may be required under state
securities or "Blue Sky" Laws in connection with the purchase and distribution
of the Class A-1 Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or the Trust or
to which it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents by
the Issuer Trustee, (iii) that may adversely affect the US Federal or Australian
Federal or state income, excise, franchise or similar tax attributes of the
Class A-1 Notes, (iv) that could materially and adversely affect the Issuer
Trustee's performance of its obligations under, or the validity or
enforceability against the Issuer Trustee of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
any of the Class A-1 Notes; and there are no contracts or other documents to
which it is party or bound that are required to be filed as an exhibit to the
Registration Statement or laws, contracts or other documents required to be
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described in the Registration Statement or the Prospectus which are not filed or
described as required;
(h) the representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might reduce, limit
or otherwise adversely affect the right of the Issuer Trustee to be indemnified
from the assets of the Trust under Clause 16 of the Master Trust Deed;
(j) Perpetual has not taken any corporate action and (to the best of
its knowledge and belief having made reasonable inquiry and investigation) no
other steps have been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator, provisional
liquidator or similar officer of it or of any or all its assets;
(k) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Income Tax Assessment Act 1936 (the
"Australian Tax Act") in relation to interest payments under the Class A-1
Notes, no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature will be imposed or made for or on
account of any income, registration transfer or turnover taxes, customs or other
duties or taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or authority
therein or thereof having power to tax in such jurisdiction, in connection with
(i) the authorization, execution or delivery of any of the Basic Documents to
which it is or is to be a party or with the authorization, execution, issue,
sale or delivery of the Class A-1 Notes under this Agreement, (ii) the sale and
delivery of the Class A-1 Notes by the Underwriters contemplated in this
Agreement and the Prospectus or (iii) the execution, delivery or performance by
the Issuer Trustee of any of the Basic Documents to which it is or is to be a
party or the Class A-1 Notes; except, in the case of sub clause (iii), for any
of the Basic Documents on which nominal stamp duty is payable or any other
document executed in connection with the perfection of the Issuer's Trustee's
legal title to the Mortgage Loans on which stamp duties or registration fees may
be payable;
(l) the Class A-1 Notes and the obligations of the Issuer Trustee
under the Note Trust Deed will be secured (pursuant to the Security Trust Deed)
by a first floating charge over the assets of the Trust, subject to the Prior
Interest (as defined in the Security Trust Deed); and
(m) no event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice or
direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
II. Representations and Warranties of the CBA Parties.
-------------------------------------------------
Each CBA Party severally represents and warrants to each Underwriter and
the Issuer Trustee as of the date of this Agreement and as of the Closing Date
that:
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(a) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the CBA Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust otherwise than as set
forth or contemplated in the Prospectus;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of (in the case of CBA) the Australian Capital
Territory and (in the case of the Manager) New South Wales, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement and the Basic Documents, and, in each case, has been duly
qualified or licensed for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification or licensing,
other than where the failure to be so qualified or licensed or in good standing
would not have a material adverse effect on the transactions contemplated in
this Agreement or in the Basic Documents;
(c) this Agreement has been duly authorized, executed and delivered by
it;
(d) each of the Basic Documents to which it is or is to be a party has
been duly authorized by it and, upon effectiveness of the Registration
Statement, the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each CBA Party that is a party to it and the other parties thereto, will
constitute a legal, valid and binding obligation of such CBA party, enforceable
against it in accordance with its terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement of
creditors rights generally and to general equitable principles; and, in the case
of the Manager only, the Class A-1 Notes and the Basic Documents each will
conform to the descriptions thereof in the Prospectus;
(e) it is not, nor with the giving of notice or lapse of time or both
would it be, in violation of or in default under, its constitution or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject, (ii) result in any violation of the
provisions of the constitution of a CBA Party or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over a CBA Party, or any of its properties or (iii) result
in the creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture,
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mortgage, contract, or other instrument other than pursuant to the Basic
Documents; and no consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Class A-1 Notes or the consummation by it
of the transactions contemplated by this Agreement or the Basic Documents,
except such consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act, the Trust
Indenture Act and as may be required under state securities or Blue Sky Laws of
the United States in connection with the purchase and distribution of the Class
A-1 Notes by the Underwriters and the registration of the Charge with the ASIC
on the Closing Date;
(f) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or its
properties, the Trust or the Trust's properties, or to which it or the Trust is
or may be a party or to which it, the Trust or any property of it or the Trust
is or may be the subject, (i) asserting the invalidity of this Agreement or of
any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents, (iii) that may adversely affect the U.S. federal or
Australian federal or state income, excise, franchise, stamp duty or similar tax
attributes of the Class A-1 Notes, (iv) that could materially and adversely
affect its performance of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents or (v) which
could individually or in the aggregate reasonably be expected to have a material
adverse effect on the interests of the holders of the Class A-1 Notes or the
marketability of the Class A-1 Notes; and there are no statutes, regulations,
contracts or other documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Prospectus which are not filed or described as required;
(g) its representations and warranties contained in the Basic
Documents are true and correct in all material respects;
(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to perform its obligations
under this Agreement and the Basic Documents, and it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization;
and it is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic Documents;
(i) it has not taken any corporate action and (to the best of its
knowledge and belief having made reasonable inquiry and investigation) no other
steps have been taken or legal proceedings been started or threatened against it
for its winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or similar
officer of it or of any or all of its assets (other than enforcement action
taken by CBA over its assets);
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(j) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Australian Tax Act in relation to
payments under the Class A-1 Notes, no withholding or deduction for any taxes,
duties, assessments or governmental charges of whatever nature is imposed or
made for or on account of any income, registration, transfer or turnover taxes,
customs or other duties or taxes of any kind, levied, collected, withheld or
assessed by or within, the Commonwealth of Australia or any sub-divisions of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with (i) the authorization, execution or delivery of the Basic
Documents to which it is, or is to be, a party or with the authorization,
execution, issue, sale or delivery of the Class A-1 Notes and (ii) the
execution, delivery or performance by each CBA Party of the Basic Documents to
which it is or is to be a party or the Class A-1 Notes; except, in the case of
sub clause (ii), for any of the Basic Documents on which nominal stamp duty is
payable or any other document executed in connection with the perfection of the
Issuer's Trustee's legal title to the Mortgage Loans on which stamp duties or
registration fees may be payable;
(k) no event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice and/or the
passage of time and/or the fulfillment of any other requirement) constitute a
Manager Default (as defined in the Master Trust Deed) or a Servicer Default (as
defined in the Series Supplement); and
(l) with respect to the A$ Securities: (A) none of the CBA Parties,
any "affiliate" (as defined in Rule 144(a)(1), each an "Affiliate") of a CBA
Party or any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has engaged or will engage in any "directed selling efforts" (within the
meaning of Regulation S), (B) each of the CBA Parties, each Affiliate of a CBA
Party and any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has offered and sold, and will offer and sell, the A$ Securities only in
"offshore transactions" (within the meaning of Regulation S) in compliance with
Regulation S and (C) each of the CBA Parties, each Affiliate of a CBA Party and
any person acting on behalf of a CBA Party or an Affiliate of a CBA Party has
complied and will comply with the offering restrictions requirement of
Regulation S.
III. Representations and Warranties of the Manager.
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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 as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to a CBA Party in writing by such Underwriter
through Deutsche Bank expressly for use therein;
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(b) the Registration Statement has been declared effective by the
Commission under the Securities Act; the conditions to the use by the Manager of
a Registration Statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Manager, threatened by the
Commission; and (i) on the Effective Date of the Registration Statement, the
Registration Statement conformed in all material respects to the requirements of
the Securities Act, and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein, or necessary
to make the statements therein not misleading and (ii) at the time of filing of
the Prospectus pursuant to Rule 424(b) and on the Closing Date the Prospectus
and the Registration Statement will conform in all material respects to the
requirements of the Securities Act, and such document will not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act, (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to any CBA Party in writing by such Underwriter through Deutsche Bank
expressly for use therein and (iii) any information in any Computational
Materials or ABS Term Sheets (except as to any information or materials provided
by a CBA Party to produce such information) required to be provided by the
Underwriters to the Manager pursuant to Section 5(v);
(c) the documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder (collectively, the
"Exchange Act") and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the date
of the Prospectus and at the Closing Date, did not and will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, no representation or
warranty is made as to documents deemed to be incorporated by reference in the
Registration Statement as the result of filing any Current Report on Form 8-K at
the request of the Underwriters except to the extent such documents accurately
reflect or are accurately based upon information furnished by or on behalf of
the CBA Parties to the Underwriters for the purpose of preparing such documents;
(d) Ernst & Young LLP are independent public accountants with respect
to CBA and the Manager within the meaning of the Securities Act;
(e) to the knowledge of the Manager, no event has occurred that would
entitle the Manager to direct the Issuer Trustee to retire as trustee of the
Trust under clause 19.2 of the Master Trust Deed; and
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(f) the Trust is not and (i) upon the issuance and sale of the Notes
as contemplated in this Agreement, (ii) the application of the net proceeds
therefrom as described in the Prospectus, (iii) the performance by the parties
to the Basic Documents of their respective obligations under the Basic
Documents, and (iv) the consummation of the transactions contemplated by the
Basic Documents, the Trust will not be required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
5. Covenants and Agreements.
------------------------
I. Covenants and Agreements of the Issuer Trustee.
----------------------------------------------
The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the
sale of the Class A-1 Notes pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it
becomes actually aware of any matter which would make any of its representations
and warranties in this Agreement untrue if given at any time prior to payment
being made to the Issuer Trustee on the Closing Date and take such steps as may
be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added,
goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, the
Agreements or in connection with the issue and distribution of the Class A-1
Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or
before the Closing Date of the conditions referred to in Section 6 below which
relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents not executed on the date hereof on or
before the Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and Clearstream
concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure
that the charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic
Documents to which it is a party which are required to be performed prior to or
simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit
any action to be taken which it knows or has reason to believe would result in
the Class A-1 Notes not being assigned the ratings referred to in Section 6(q)
below;
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(h) not, prior to or on the Closing Date, amend the terms of any Basic
Document nor execute any of the Basic Documents other than in the agreed form
without the consent of the Underwriters;
(i) in connection with the initial distribution of the Class A-2 Notes
and the Class B Notes, it and each person acting on its behalf (other than the
CBA Parties, each Affiliate of a CBA Party and the Managers (as defined in the
Dealer Agreement)) has not and will not offer for issue, or invite applications
for the issue of, the Class A-2 Notes and the Class B Notes or offer the Class
A-2 Notes and the Class B Notes for sale or invite offers to purchase the Class
A-2 Notes and the Class B Notes to a person, where the offer or invitation is
received by that person in Australia, unless the minimum amount payable for the
Class A-2 Notes or the Class B Notes (as the case may be) (after disregarding
any amount lent by any of the CBA Parties or any associate (as determined under
sections 10 to 17 of the Corporations Law) of any CBA Party) on acceptance of
the offer by that person is at least A$500,000 or the offer or invitation
otherwise does not require disclosure to investors in accordance with Part 6D.2
of the Corporations Law.
II. Covenants and Agreements of the CBA Parties.
-------------------------------------------
The CBA Parties severally covenant and agree with each of the several
Underwriters and the Issuer Trustee as follows:
(a) in the case of the Manager only, to cause the Prospectus, properly
completed, and any supplement thereto, to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period prescribed and
to furnish copies of the Prospectus to the Underwriters in New York City prior
to 10:00 a.m., New York City time, on the Business Day next succeeding the date
of this Agreement in such quantities as the Representative may reasonably
request;
(b) in the case of the Manager only, to deliver, at the expense of the
Manager, to the Representative, five signed copies of the Registration Statement
(as originally filed) and each amendment thereto, in each case including
exhibits, and to each other Underwriter a conformed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each case without
exhibits and, during the period mentioned in paragraph (f) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) as the
Representative may reasonably request. The Manager will furnish or cause to be
furnished to the Representative copies of all reports required by Rule 463 under
the Act;
(c) in the case of the Manager only, before filing any amendment or
supplement to the Registration Statement or the Prospectus, to furnish to the
Representative a copy of the proposed amendment or supplement for review and not
to file any such proposed amendment or supplement to which the Representative
reasonably objects;
(d) in the case of the Manager only, to advise the Representative
promptly, and to confirm such advice in writing, (i) when the Prospectus, and
any supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b), (ii) when any amendment to the Registration Statement has been
filed or becomes effective, (iii) when any supplement to the
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Prospectus or any amendment to the Prospectus has been filed and to furnish the
Representative with copies thereof, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any proceeding
for that purpose, and (vi) of the occurrence of any event, within the period
referenced in paragraph (f) below, as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading and to use its best efforts to prevent the issuance of
any such stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending the
qualification of the Class A-1 Notes, or notification of any such order thereof
and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) to advise the Representative promptly, and to confirm such advice
in writing of the receipt by a CBA Party of any notification with respect to any
suspension of the qualification of the Class A-1 Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(f) in the case of the Manager only, if, during such period of time
after the first date of the public offering of the Class A-1 Notes as in the
opinion of counsel for the Underwriters a prospectus relating to the Class A-1
Notes is required by law to be delivered in connection with sales by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the CBA Parties, to the Underwriters and to the dealers (whose names and
addresses the Representative will furnish to CBA) to which Class A-1 Notes may
have been sold by the Representative on behalf of the Underwriters and to any
other dealers upon request, such amendments or supplements to the Prospectus as
may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law;
(g) in the case of the Manager only, to endeavor to qualify the Class
A-1 Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and to continue
such qualification in effect so long as reasonably required for distribution of
the Class A-1 Notes; provided that the Manager shall not be required to file a
--------
general consent to service of process in any jurisdiction;
(h) in the case of the Manager only, to make generally available to
the holders of the Class A-1 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;
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(i) in the case of the Manager only, so long as the Class A-1 Notes
are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual independent
certified public accountant's audit report on the financial statements furnished
to the Issuer Trustee pursuant to the Basic Documents by first class mail as
soon as practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as soon thereafter as practicable, notice by
telex or facsimile to the Representative of the Pool Factor as of the related
Record Date, (iv) copies of all reports or other communications (financial or
other) furnished to holders of the Class A-1 Notes, and copies of any reports
and financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities exchange, and
(v) from time to time such other information concerning the Trust or the CBA
Parties as the Representative may reasonably request;
(j) to the extent, if any, that the ratings provided with respect to
the Class A-1 Notes by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by a CBA Party or the Issuer
Trustee, the relevant CBA Party shall use its best efforts to furnish such
documents and take any other such action or, in the case of the Issuer Trustee,
it will use its best efforts to procure the Issuer Trustee to do so;
(k) not to take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to believe
would result in the Class A-1 Notes not being assigned the rating referred to in
Section 6(q) below;
(l) in the case of the Manager only, to assist Deutsche Bank in making
arrangements with DTC, Euroclear and Clearstream concerning the issue of the
Book-Entry Notes and related matters;
(m) in the case of the Manager only, if required, to register the
Class A-1 Notes pursuant to the Securities Exchange Act of 1934, as amended, as
soon as reasonably practicable as such requirement comes into effect but no
later than when such registration may become required by law;
(n) in the case of CBA only, whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
to pay, or cause to be paid, all fees costs and expenses incident to the
performance of the CBA Parties' obligations under this Agreement, including,
without limiting the generality of the foregoing, all fees, costs and expenses:
(i) incident to the preparation, issuance, execution, authentication and
delivery of the Notes, including any fees, costs and expenses of the US Dollar
Note Trustee or any transfer agent, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Class A-1 Notes under the laws of such jurisdictions as the Underwriters may
designate (including fees of counsel for the Underwriters and their
disbursements with respect thereto), (iv) in connection with the listing of the
Notes on any stock exchange, (v) related to any filing with National Association
of Securities Dealers, Inc., (vi) in connection with the printing (including
word processing and duplication costs) and delivery of this Agreement, the Basic
Documents, the Preliminary and Supplemental
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Blue Sky Memoranda and any Legal Investment Survey and the furnishing to
Underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as provided in this Agreement, (vii)
the CBA Parties' counsel and accountants and the Underwriters' counsel fees and
disbursement that are chargeable to CBA, and (viii) payable to rating agencies
in connection with the rating of the Notes. However, Deutsche Bank shall be
responsible for any expenses incurred by the CBA Parties in connection with any
"roadshow" presentation to potential investors;
(o) to indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issue tax, including any interest and penalties,
on the creation, issue and sale of the Class A-1 Notes in accordance with this
Agreement and on the execution and delivery of this Agreement and any value
added tax or goods and services tax payable in connection with any concessions,
commissions and other amounts payable or allowable by the Issuer Trustee; to
make all payments to be made by the CBA Parties or the Issuer Trustee under this
Agreement without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the relevant CBA
Party is compelled by law to deduct or withhold such taxes, duties or charges.
In that event, the relevant CBA Party shall pay such additional amounts as may
be necessary in order that the net amounts received after such withholding or
deduction shall equal the amount that would have been received if no withholding
or deduction had been made;
(p) in the case of the Manager only, to file the Computational
Materials and ABS Term Sheets (if any) provided to it by the Underwriters under
Section 5(V) with the Commission pursuant to a Current Report on Form 8-K by
10:00 a.m. on the morning the Prospectus is filed pursuant to Rule 424(b) or, in
the case of any Collateral Term Sheet required to be filed prior to such date,
by 10:00 a.m. on the second Business Day following the first day on which such
Collateral Term Sheet has been sent to a prospective investor; provided,
however, that prior to such filing of the Computational Materials and ABS Term
Sheets (other than any Collateral Term Sheets that are not based on the Pool
Information) by the Manager, each Underwriter must comply with its obligations
pursuant to subsection 5(V)(b) hereof and the Manager must receive a letter from
Ernst & Young LLP, certified public accountants, satisfactory in form and
substance to the Manager and its counsel, to the effect that such accountants
have performed certain specified procedures, all of which have been agreed to by
the Manager, as a result of which they determined that all information that is
included in the Computational Materials and ABS Term Sheets (if any) provided by
the Underwriters to the Manager for filing on Form 8-K is accurate except as to
such matters that are not deemed by the Manager to be material. The Manager
shall file any corrected Computational Materials described in Section 5(V) as
soon as practicable following receipt thereof. The Manager also will file with
the Commission within fifteen days of the issuance of the Class A-1 Notes a
Current Report on Form 8-K (for purposes of filing the Basic Documents);
(q) in connection with the initial distribution of the Class A-2 Notes
and the Class B Notes, it and each person acting on behalf of the CBA Parties
(other than the Co-Managers (as defined in the Dealer Agreement), each of whom
has agreed and covenanted with the Issuer Trustee and the Manager, with
appropriate changes, as follows) has not and will not offer for issue, or invite
applications for the issue of, the Class A-2 Notes and the Class B Notes or
offer the Class A-2 Notes and the Class B Notes for sale or invite offers to
purchase the Class
-15-
A-2 Notes and the Class B Notes to a person, where the offer or invitation is
received by that person in Australia, unless the minimum amount payable for the
Class A-2 Notes or the Class B Notes (as the case may be) (after disregarding
any amount lent by any of the CBA Parties or any associate (as determined under
sections 10 to 17 of the Corporations Act) of any CBA Party) on acceptance of
the offer by that person is at least A$500,000 or the offer or invitation
otherwise does not require disclosure to investors in accordance with Part 6D.2
of the Corporations Act; and
(r) to procure that the charges created by or contained in the
Security Trust Deed are registered within all applicable time limits in all
appropriate registers.
III. Selling Restrictions.
--------------------
(a) No prospectus in relation to the Class A-1 Notes has been lodged
with, or registered by, the Australian Securities and Investments Commission or
the Australian Stock Exchange Limited. Accordingly, each of the Underwriters,
severally and not jointly, represents and agrees that it has not offered and
will not offer for issue and has not invited and will not invite applications
for the issue of the Class A-1 Notes or offer the Class A-1 Notes for sale or
invite offers to purchase the Class A-1 Notes to a person, where the offer or
invitation is received by that person in Australia.
(b) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this Agreement, it will have
offered the Class A-1 Notes for sale, or invited or induced offers to buy the
Class A-1 Notes, in each case by:
(i) making each preliminary prospectus or the Prospectus
available for inspection on a Bloomberg source and inviting
potential investors to access the preliminary prospectus or the
Prospectus available on that Bloomberg source; or
(ii) making hard copies of each preliminary prospectus or the
Prospectus for the Class A-1 Notes available for collection from
that Underwriter in at least its principal office in New York
City or London and, in the case of purchasers in the United
States, by sending or giving copies of that preliminary
prospectus or the Prospectus to those purchasers.
(c) Each Underwriter agrees that it will not sell Class A-1 Notes to,
or invite or induce offers for the Class A-1 Notes from:
(i) any associate of the Issuer Trustee or a CBA Party specified
in Schedule II or Schedule III; or
(ii) any other associate from time to time specified in writing
to the Underwriter by the Issuer Trustee or a CBA Party.
(d) Each Underwriter, severally and not jointly, agrees to:
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(i) provide written advice to the Issuer Trustee and the Manager
within 40 days of the issue of the Class A-1 Notes specifying
that it has complied with section 5(III)(b); and
(ii) cooperate with reasonable requests from the Issuer Trustee
for information for the purposes of assisting the Issuer Trustee
to demonstrate that the public offer test under section 128F of
the Australian Tax Act has been satisfied in respect of the Class
A-1 Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any Class A-1 Note or
any information from which such identity might be capable of
being ascertained; or
(y) any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or
directive.
(e) Each Underwriter (severally and not jointly) agrees that:
(i) it has only offered or sold and will only offer or sell any
Class A-1 Notes in or from the United Kingdom: (a) to persons (i)
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for
the purposes of their businesses; or (ii) to persons who it is
reasonable to expect will acquire, hold, manage or dispose of
investments (as principal or agent) for the purposes of their
business; or (b) otherwise in circumstances which have not
resulted in and will not result in an offer to the public under
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-1 Notes
in, from or otherwise involving the United Kingdom; and
(iii) in connection with the Class A-1 Notes, it has only issued
or passed on and will only issue or pass on in the United Kingdom
the Class A-1 Notes or any document received by it in connection
with the issue of the Class A-1 Notes in circumstances where the
document may lawfully be issued or passed on including, without
limitation, to a person exempted as an investment professional
under Article 19 or to a high net worth person under Article 49
of the Financial Services and Markets Xxx 0000 (Financial
Promotion) Order 2001, as amended, in each case it has complied
with and will comply with all the relevant conditions contained
in such Articles 19 and 49.
(f) Each Underwriter, severally and not jointly, acknowledges that no
action has been taken to permit a public offering of the Class A-1 Notes in any
jurisdiction outside the
-17-
United States where action would be required for that purpose. Each Underwriter
will comply with all applicable securities laws and regulations in each
jurisdiction in which it purchases, offer, sells or delivers Class A-1 Notes or
has in its possession or distributes the Prospectus or any other offering
material in all cases at its own expense.
IV. Manager Direction to Issuer Trustee.
-----------------------------------
The Manager hereby directs the Issuer Trustee to do each of the things (or,
as the case may be, not to do the things) specified in Section 5(I) and the
Issuer Trustee acknowledges and accepts that direction.
V. Covenants and Agreements of the Underwriters.
--------------------------------------------
(a) Each Underwriter represents and warrants to and agrees with the
Issuer Trustee and the CBA Parties that as of the date of this Agreement and as
of the Closing Date, such Underwriter has complied with all of its obligations
under this Agreement, including, without limitation, this Section 5(V), and,
with respect to all Computational Materials and ABS Term Sheets provided by such
Underwriter to the Manager pursuant to this Section 5(V), if any, such
Computational Materials and ABS Term Sheets are accurate in all material
respects (taking into account the assumptions explicitly set forth in the
Computational Materials or ABS Term Sheets), except to the extent of any errors
that are caused by errors in the Pool Information, and include all assumptions
material to their preparation. The Computational Materials and ABS Term Sheets
provided by such Underwriter to the Manager constitute a complete set of all
Computational Materials and ABS Term Sheets delivered by such Underwriter to
prospective investors that are required to be filed with the Commission.
(b) Each Underwriter may prepare and provide to prospective investors
Computational Materials and ABS Term Sheets in connection with its offering of
the Class A-1 Notes, subject to the following conditions to be satisfied by such
Underwriter:
(i) in connection with the use of Computational Materials, such
Underwriter shall comply with all applicable requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co.
Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association
dated May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), as
well as the PSA Letter referred to below. In connection with the
use of ABS Term Sheets, such Underwriter shall comply with all
applicable requirements of the No-Action Letter of February 17,
1995 issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA
Letter, the "No-Action Letters");
(ii) "Computational Materials" has the meaning given in the
No-Action Letters, but shall include only those Computational
Materials that have been prepared or delivered to prospective
investors by or at the
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direction of any Underwriter. "ABS Term Sheets" and "Collateral
Term Sheets" have the meanings given in the PSA Letter but shall
include only those ABS Term Sheets or Collateral Term Sheets that
have been prepared or delivered to prospective investors by or at
the direction of any Underwriter;
(iii) (A) All Computational Materials and ABS Term Sheets
provided to prospective investors that are required to be filed
pursuant to the No-Action Letters shall bear a legend on each
page including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [NAME OF
[APPLICABLE] UNDERWRITER]. NEITHER THE ISSUER OF THE NOTES NOR
ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY
OR COMPLETENESS OF THE INFORMATION HEREIN. THE INFORMATION HEREIN
IS PRELIMINARY AND WILL BE SUPERSEDED BY THE APPLICABLE
PROSPECTUS AND BY ANY OTHER INFORMATION SUBSEQUENTLY FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION."
(B) In the case of Collateral Term Sheets, such legend shall
also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE POOL OF HOUSING LOANS CONTAINED IN THE
PROSPECTUS SUPPLEMENT RELATING TO THE NOTES AND SUPERSEDES ALL
INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS RELATING TO
THE POOL OF HOUSING LOANS PREVIOUSLY PROVIDED BY [NAME OF
[APPLICABLE] UNDERWRITER]."
Upon reasonable notice and in consultation with the
Representative, the Manager shall have the right to require
additional specific legends or notations to appear on any
Computational Materials or ABS Term Sheets, the right to require
changes regarding the use of terminology and the right to
determine the types of information appearing therein.
Notwithstanding the foregoing, subsections (b)(iii)(A) and
(b)(iii)(B) will be satisfied if all Computational Materials and
ABS Term Sheets bear a legend in a form previously approved in
writing by the Manager;
(iv) Such Underwriter shall provide the Manager with
representative forms of all Computational Materials and ABS Term
Sheets prior to their first use, to the extent such forms have
not previously been approved by
-19-
the Manager for use by the Underwriters. Such Underwriter shall
provide to the Manager, for filing on Form 8-K as provided in
Section 5(II)(p), copies (in such format as reasonably required
by the Manager) of all Computational Materials and ABS Term
Sheets that are required to be filed with the Commission pursuant
to the No-Action Letters. Such Underwriter may provide copies of
the foregoing in a consolidated or aggregated form including all
information required to be filed. All Computational Materials and
ABS Term Sheets described in this subsection (b) must be provided
to the Manager not later than 10:00 a.m. New York time one
Business Day before filing thereof is required pursuant to the
terms of this Agreement. Such Underwriter agrees that it will not
provide to any investor or prospective investor in the Notes any
Computational Materials or ABS Term Sheets on or after the day on
which Computational Materials and ABS Term Sheets are required to
be provided to the Manager pursuant to this subsection (b) (other
than copies of Computational Materials or ABS Term Sheets
previously submitted to the Manager in accordance with this
subsection (b) for filing pursuant to subsection (b) (vi)) unless
such Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or
prospective investor;
(v) All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the
same methodology and assumptions that are used to generate the
information in the Prospectus Supplement as set forth therein;
provided, however, that the Computational Materials and ABS Term
Sheets may include information based on alternative methodologies
or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets delivered by such Underwriter that
are required to be filed were based on assumptions with respect
to the pool of mortgages to be securitized that differ from the
final information in relation to the pool of mortgages to be
securitized in any material respect or on note structuring terms
that were revised in any material respect prior to the printing
of the Prospectus, such Underwriter shall prepare revised
Computational Materials or ABS Term Sheets, as the case may be,
based on the final information with respect to the securitized
pool of housing loans and final structuring assumptions,
circulate such revised Computational Materials and ABS Term
Sheets to all recipients of the preliminary versions thereof that
indicated orally to such Underwriter they would purchase all or
any portion of the Class A-1 Notes, and include such revised
Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Manager pursuant to
subsection (iv) above;
(vi) The Manager shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain
any material error or omission, provided that, at the request of
the applicable Underwriter, the Manager will file Computational
Materials or ABS Term
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Sheets that contain a material error or omission if clearly
marked "superseded by materials dated " and accompanied
-------
by corrected Computational Materials or ABS Term Sheets that are
marked "material previously dated , as corrected." In the event
that within the period during which the Prospectus relating to
the Class A-1 Notes is required to be delivered under the Act,
any Computational Materials or ABS Term Sheets delivered by an
Underwriter are determined, in the reasonable judgment of the
Manager or such Underwriter, to contain a material error or
omission, such Underwriter shall prepare a corrected version of
such Computational Materials or ABS Term Sheets, shall circulate
such corrected Computational Materials and ABS Term Sheets to all
recipients of the prior versions thereof that either indicated
orally to such Underwriter they would purchase all or any portion
of the Class A-1 Notes, or actually purchased all or any portion
thereof, and shall deliver copies of such corrected Computational
Materials and ABS Term Sheets (marked, "as corrected") to the
Manager for filing with the Commission in a subsequent Form 8-K
submission (subject to the Manager's obtaining an accountant's
comfort letter in respect of such corrected Computational
Materials and ABS Term Sheets);
(vii) If an Underwriter does not provide any Computational
Materials or ABS Term Sheets to the Manager pursuant to this
subsection (b), such Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or
electronic form in connection with the offering of the Class A-1
Notes that is required to be filed with the Commission in
accordance with the No-Action Letters;
(viii) In the event of any delay in the delivery by such
Underwriter to the Manager of all Computational Materials and ABS
Term Sheets required to be delivered in accordance with this
subsection (b), or in the delivery of the accountant's comfort
letter in respect thereof pursuant to subsection (b) (vi) above
the Manager shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the
Closing Date and to take other appropriate actions, in each case
as necessary in order to allow the Manager to comply with its
agreement set forth in subsection 5(II)(p) to file the
Computational Materials and ABS Term Sheets by the time specified
therein;
(ix) Each Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures
which it reasonably believes to be sufficient to ensure full
compliance with all applicable legal requirements of the
No-Action Letters with respect to the generation and use of
Computational Materials and ABS Term Sheets in connection with
the offering of the Class A-1 Notes.
-21-
Each Underwriter represents and warrants that, if and to the extent it
provided any prospective investors with any Computational Materials or ABS Terms
Sheets prior to the date hereof in connection with the offering of the Class A-1
Notes, all of the conditions set forth in clauses (i) through (viii) above have
been or, to the extent the relevant condition requires action to be taken after
the date hereof, will be, satisfied with respect thereto.
6. Conditions to the Obligations of the Underwriters. The several
-------------------------------------------------
obligations of the Underwriters hereunder are subject to the performance by the
Issuer Trustee and the CBA Parties of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective, not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus used to confirm sales of the
Notes shall have been filed with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the rules and
regulations under the Securities Act and in accordance with Section 5II(a)
hereof; and all requests for additional information shall have been complied
with to the satisfaction of the Representative;
(b) the representations and warranties of the Issuer Trustee and the
CBA Parties contained herein are true and correct on and as of the Closing Date
as if made on and as of the Closing Date and the representations and warranties
of the Issuer Trustee and CBA Parties in the Basic Documents will be true and
correct on the Closing Date; and the Issuer Trustee and the CBA Parties shall
have complied with all agreements and all conditions on the part of each to be
performed or satisfied hereunder and under the Basic Documents at or prior to
the Closing Date;
(c) all actions required to be taken and all filings required to be
made by the Manager or the Issuer Trustee under the Securities Act prior to the
Closing Date for the Notes shall have been duly taken or made;
(d) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date: (x) there shall not have occurred any downgrading in
any rating accorded any securities of, or guaranteed by, CBA by any "nationally
recognized statistical rating organization" (as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act) to: (i) "A2" or worse in
the case of the rating accorded by Xxxxx'x Investors Service, Inc., (ii) "A" or
worse in the case of a rating accorded by Standard & Poor's Ratings Group or
(iii) the equivalent of "A2" or "A" or worse in the case of the rating accorded
by any other "nationally recognized statistical rating organization" nor (y)
shall any notice have been given of any intended or potential downgrading as is
referred to in subclause (x) of this paragraph (d);
(e) since the date of this Agreement, there shall not have been any
material adverse change or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Issuer Trustee or any of the CBA Parties, taken as a whole,
-22-
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-1
Notes on the Closing Date on the terms and in the manner contemplated in the
Prospectus;
(f) the Representative shall have received on and as of the Closing
Date a certificate of an Authorized Officer of the Issuer Trustee and each CBA
Party, with specific knowledge about the party's financial matters, satisfactory
to the Representative to the effect set forth in subsections (a) through (e) of
this Section;
(g) the Representative shall have received letters, of (i) Ernst &
Young LLP, dated the date of delivery thereof, in form and substance
satisfactory to the Representative and counsel for the Underwriters, confirming
that they are independent public accountants within the meaning of the
Securities Act and the applicable Rules and Regulations and stating in effect
that they have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Registration Statement and the Prospectus (and any
amendments and supplements thereto), agrees with the accounting records of CBA,
excluding any questions of legal interpretation; (ii) of PriceWaterhouse
Coopers, dated the date of the Computational Materials or ABS Term Sheets, in
form and substance as previously agreed to by the Representative and otherwise
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Representative as
a result of which they have determined that the information included in the
Computational Materials or ABS Term Sheets (if any), provided by the
Underwriters to the Manager for filing on Form 8-K, is accurate and of (iii)
PriceWaterhouse Coopers, dated the date of delivery thereof, in form and
substance satisfactory to the Representative and counsel for the Underwriters,
stating in effect that they have performed certain specified procedures with
respect to the Mortgage Loans;
(h) Sidley Xxxxxx Xxxxx & Xxxx LLP, special United States counsel to
the Underwriters, shall have furnished to the Underwriters their written
opinion, dated the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(i) Xxxxx Xxxxx, Xxxx & Maw, United States counsel for the CBA
Parties, shall have furnished to the Representative their written opinions,
dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(j) Xxxxx Xxxxx, Xxxx & Maw, United States federal income tax counsel
for the CBA Parties shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
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(k) Xxxxxxx Xxx, Australian counsel for the CBA Parties, shall have
furnished to the Representative their written opinion, dated the Closing Date,
in form and substance satisfactory to the Representative, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(l) Xxxxxxx Xxx, Australian tax counsel for the CBA Parties, shall
have furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such
Australian tax counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(m) Mallesons Xxxxxxx Xxxxxx, Australian counsel for the Issuer
Trustee and the Security Trustee, shall have furnished to the Representative
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(n) the Chief Solicitor and General Counsel of CBA shall have
furnished to the Representative 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;
(o) Counsel to the Interest Rate Swap Provider and Currency Swap
Providers shall have furnished to the Representative their written opinion dated
the Closing Date, in form and substance satisfactory to the Representative, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(p) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in connection
with the transaction described in this Agreement which opinion is not otherwise
described in this Agreement allowing the Representative to rely on such opinion
as if it were addressed to the Representative;
(q) the Representative shall have received copies of letters from
Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Group and Fitch,
Inc. (the "Rating Agencies") stating that the Class A-1 Notes have been rated
AAA or its equivalent by the Rating Agencies;
(r) the Representative shall have received evidence satisfactory to it
and its counsel that on or prior to the Closing Date the Class A-2 Notes and the
Class B Notes have been duly authorized, executed, authenticated, issued and
delivered pursuant to the Basic Documents; and
(s) on or prior to the Closing Date the Issuer Trustee and the CBA
Parties shall have furnished to the Representative such further certificates and
documents as the Representative shall reasonably request.
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7. Indemnification and Contribution.
--------------------------------
(a) Each of the CBA Parties agrees jointly and severally to indemnify
and hold harmless each Underwriter, each affiliate of an Underwriter that
assists such Underwriter in the distribution of the Class A-1 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:
(x) any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other
expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus
(as amended or supplemented if the CBA Parties shall have
furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(y) any and all 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 material fact contained in any preliminary
prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated in or
necessary to make the statements in not misleading,
except:
(i) insofar as any such losses, claims, damages, liabilities,
legal fees and other expenses are caused by any untrue statement
or omission or alleged untrue statement or omission made (A) in
reliance upon and in conformity with information relating to any
Underwriter furnished to a CBA Party in writing by such
Underwriter through Deutsche Bank expressly for use therein or
(B) in the Prepayment and Yield Information (as defined in the
next paragraph); or
(ii) that such indemnity with respect to any preliminary
prospectus or 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-1 Notes which are the subject
hereof, if such person did not receive a copy of the Prospectus
(or the Prospectus as amended or supplemented) at or prior to the
confirmation of the sale of such Class A-1 Notes to such person,
and where such delivery is required by the Securities Act and the
alleged untrue statement contained in, or omission of a material
fact from (A) any preliminary prospectus was corrected in the
Prospectus (or the Prospectus
-25-
as amended or supplemented) or (B) the Prospectus was corrected
in the Prospectus as amended or supplemented; or
(iii) to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein relating to any information included in
Computational Materials or ABS Term Sheets that have been
superseded by revised Computational Materials or ABS Terms Sheets
if such Underwriter (A) has not complied with its obligation to
circulate revised Computational Materials and ABS Terms Sheets in
accordance with Section 5(V) or (B) has not delivered them to the
Manager no later than one (1) Business Day after delivery to
investors (in the case of (B), to the extent such loss, claim,
damage or liability is attributable to the failure to deliver)
provided that the CBA Parties shall indemnify each Underwriter to
the extent any misstatement or omission is contained in the Pool
Information;
For the purposes of this Agreement, the term "Prepayment and Yield
Information" means that portion of the information in any preliminary prospectus
or the Prospectus (or the Prospectus as amended or supplemented) set forth under
the sub-heading "Prepayment and Yield Considerations - Weighted Average Lives",
including the table entitled "Percent of Initial Principal Outstanding at the
Following Percentages of Constant Prepayment Rate", that is not Pool
Information; provided, however, that information set forth under that
sub-heading that is not Pool Information shall not constitute Prepayment and
Yield Information to the extent such information is inaccurate or misleading in
any material respect as a result of it being based on Pool Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished by magnetic tape, diskette or any other computer readable
format, or in writing to the Underwriters by any CBA Party regarding the
Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and CBA and each person that controls
a CBA Party or the Issuer Trustee within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the CBA Parties to each Underwriter, but only with
reference to: (i) information relating to such Underwriter furnished to the CBA
Parties in writing by such Underwriter through Deutsche Bank expressly for use
in the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus; and (ii) the Computational Materials and
ABS Term Sheets delivered to investors by such Underwriter, except to the extent
of any errors in the Computational Materials or ABS Term Sheets that are caused
by errors in the Pool Information.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to subsection
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
-26-
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless:
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary;
(ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified
Person; or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential
differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Notes and such control persons of Underwriters shall be
designated in writing by Deutsche Bank and any such separate firm for the
Manager, its directors, its officers who sign the Registration Statement, CBA
and the Issuer Trustee and such control persons of each of the Issuer Trustee
and the CBA Parties shall be designated in writing by that party.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this subsection (c), the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if:
(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
-27-
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in subsection (a) or (b) above
is unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such subsection, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the CBA Parties and
the Issuer Trustee on the one hand and the Underwriters on the other hand from
the offering of the Class A-1 Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the CBA Parties and the Issuer Trustee on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the CBA Parties and the Issuer Trustee on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the CBA Parties and the Issuer Trustee and the total underwriting
discounts and the commissions received by the Underwriters bear to the aggregate
public offering price of the Class A-1 Notes. The relative fault of the CBA
Parties and the Issuer Trustee on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by a CBA Party or the
Issuer Trustee or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The CBA Parties, the Issuer Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of 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-1 Notes set forth opposite their names in Schedule I hereto, and not joint.
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The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Issuer Trustee and the
CBA Parties set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Issuer Trustee or a CBA Party, its
officers or directors or any other person controlling the Issuer Trustee or a
CBA Party and (iii) acceptance of and payment for any of the Class A-1 Notes.
(f) To the extent that any payment of damages by a CBA Party pursuant
to subsection (a) above is determined to be a payment of damages pursuant to
paragraph 15 of Guidance Note AGN 120.3- "Purchase and Supply of Assets
(including Securities issued by SPVs)", being a Guidance Note to Prudential
Standard APS 120- "Funds Management and Securitisation" or any successor
thereto, such payment shall be subject to the terms therein (or the terms of any
equivalent provisions in any successor of Prudential Standard APS 120).
8. Termination. Notwithstanding anything herein contained, this Agreement
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may be terminated in the absolute discretion of Deutsche Bank, by notice given
to the Issuer Trustee and each CBA Party, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the London Stock Exchange or the Australian Stock
Exchange, (ii) trading of any securities of or guaranteed by the Issuer Trustee
or any CBA Party shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Sydney or London shall have been declared by either
United States Federal, New York State, Commonwealth of Australia, New South
Wales State or United Kingdom authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of Deutsche Bank, is material and
adverse and which, in the judgment of Deutsche Bank, makes it impracticable to
market the Class A-1 Notes on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness of Agreement; Default of Underwriters. This Agreement
---------------------------------------------------
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Class A-1 Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Class A-1 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-1 Notes to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Class A-1
Notes set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Class A-1 Notes set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as Deutsche
Bank may specify, to purchase the Class A-1 Notes which such
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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-1
--------
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-1 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-1 Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Class A-1 Notes
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Class A-1 Notes to be purchased on such date, and
arrangements satisfactory to Deutsche Bank and the Manager for the purchase of
such Notes are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
CBA Parties and the Issuer Trustee. In any such case either Deutsche Bank or the
Manager shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by
-------------------------
the Underwriters, or any of them, because of any failure or refusal on the part
of the Issuer Trustee or a CBA Party to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Issuer Trustee or
a CBA Party shall be unable to perform its obligations under this Agreement or
any condition of the Underwriters' obligations cannot be fulfilled, the CBA
Parties jointly and severally agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the CBA Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Class A-1 Notes, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
12. Certain Matters Relating to the Issuer Trustee.
----------------------------------------------
(a) The Issuer Trustee enters into this Agreement only in its capacity
as Trustee of the Trust and in no other capacity. A liability incurred by the
Issuer Trustee acting in its capacity as Issuer Trustee of the Trust arising
under or in connection with this Agreement is limited to and can be enforced
against the Issuer Trustee only to the extent to which it can be satisfied out
of Assets of the Trust out of which the Issuer Trustee is actually indemnified
for the liability. This limitation of the Issuer Trustee's liability applies
despite any other provision of this Agreement (other than section 12(c)) to the
contrary and extends to all liabilities and
-30-
obligations of the Issuer Trustee in any way connected with any representation,
warranty, conduct, omission, agreement or transaction related to this Agreement.
(b) Each Underwriter and each of the CBA Parties may not xxx the
Issuer Trustee in respect of liabilities incurred by the Issuer Trustee, acting
in its capacity as Issuer Trustee of the Trust, in any capacity other than as
Issuer Trustee of the Trust including seeking the appointment of a receiver
(except in relation to the Assets of the Series Trust), or a liquidator, an
administrator or any similar person to the Issuer Trustee or prove in any
liquidation, administration or arrangements of or affecting the Issuer Trustee
(except in relation to the Assets of the Trust).
(c) The provisions of this section 12 will not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not satisfied
because under the Master Trust Deed, this Agreement or any other Transaction
Document in relation to the Trust or by operation of law there is a reduction in
the extent of the Issuer Trustee's indemnification or exoneration out of the
Assets of the Trust, as a result of the Issuer Trustee's fraud, negligence or
wilful default (as defined in the Series Supplement).
(d) It is acknowledged that the Relevant Parties (as defined in the
Series Supplement) are responsible under the Basic Documents for performing a
variety of obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations and any breach
of representations and warranties under this Agreement) will be considered
fraudulent, negligent or a wilful default for the purpose of section 12(c) to
the extent to which the act or omission was caused or contributed to by any
failure by any Relevant Party (other than any person for whom the Issuer Trustee
is responsible or liable for in accordance with any Transaction Document) to
fulfill its obligations relating to the Trust or by any other act or omission of
a Relevant Party or any other such person.
13. Actions by Representative; Notices. Any action by the Underwriters
----------------------------------
hereunder may be taken by Deutsche Banc Alex.Xxxxx Inc. on behalf of the
Underwriters, and any such action taken by Deutsche Banc Alex. Xxxxx Inc. shall
be binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to Deutsche Banc Alex. Xxxxx Inc. (Facsimile No.:
(000) 000-0000); Attention: Asset Securitization Group. Notices to CBA and the
Manager shall be given to it at Commonwealth Bank of Australia, Xxxxx 0, 00
Xxxxxx Xxxxx, Xxxxxx, XXX, 0000 (Facsimile No.: (000) 0000-0000); Attention: Xxx
See, Group Treasury. Notices to the Issuer Trustee shall be given to it at
Perpetual Trustees Australia Limited, Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
XXX, 0000 (Facsimile No.: (000) 0000-0000); Attention: Manager, Securitisation.
14. Counterparts; Applicable Law. This Agreement may be signed in
-----------------------------
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
15. Submission to Jurisdiction. Each of the CBA Parties and the Issuer
--------------------------
Trustee submits to the non-exclusive jurisdiction of any Federal or State court
in the City, County and
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Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, in any legal suit, action or
proceeding based on or arising under this Agreement and agrees that all claims
in respect of such suit or proceeding may be determined in any such court. Each
of the CBA Parties and the Issuer Trustee waives, to the extent permitted by
law, the defense of an inconvenient forum or objections to personal jurisdiction
with respect to the maintenance of such legal suit, action or proceedings any
objection to the laying of the venue of any such suit, action or proceeding in
any Federal or State court in the City, County and State of New York, United
States of America. To the extent that each of the CBA Parties and the Issuer
Trustee or any of their respective properties, assets or revenues may have or
may hereafter become entitled to, or have attributed to it, any right of
immunity from any legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of a judgment, in any such jurisdiction, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with the issuance of the Class A-1 Notes or this Agreement,
each of the CBA Parties and the Issuer Trustee hereby irrevocably and
unconditionally waives and agrees not to plead or claim any such immunity and
consents to such relief and enforcement.
16. Appointments of Process Agent.
-----------------------------
(a) Each of the CBA Parties hereby designates and appoints
Commonwealth Bank of Australia, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(Attention: Xxx Xxxxxxxx) (the "CBA Process Agent"), as its authorized agent,
upon whom process may be served in any legal suit, action or proceeding based on
or arising under or in connection with this Agreement, it being understood that
the designation and appointment of Commonwealth Bank of Australia, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (Attention: Xxx Xxxxxxxx) as such authorized agent
shall become effective immediately without any further action on the part of the
each of the CBA Parties. Such appointment shall be irrevocable to the extent
permitted by applicable law and subject to the appointment of a successor agent
in the United States on terms substantially similar to those contained in this
Section 16 and reasonably satisfactory to Deutsche Bank. If the CBA Process
Agent shall cease to act as agent for service of process, each of the CBA
Parties shall appoint, without unreasonable delay, another such agent, and
notify Deutsche Bank of such appointment. Each of the CBA Parties represents to
the Underwriters that it has notified the CBA Process Agent of such designation
and appointment and that the CBA Process Agent has accepted the same in writing.
Each of the CBA Parties hereby authorizes and directs the CBA Process Agent to
accept such service. Each of the CBA Parties further agrees that service of
process upon the CBA Process Agent and written notice of that service to it
shall be deemed in every respect effective service of process upon it in any
such legal suit, action or proceeding. Nothing in this Section 16 shall affect
the right of any Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law.
(b) The Issuer Trustee hereby designates and appoints CT Corporation
System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "IT Process
Agent"), as its authorized agent, upon whom process may be served in any legal
suit, action or proceeding based on or arising under or in connection with this
Agreement, it being understood that the designation and appointment of CT
Corporation System as such authorized agent shall become effective immediately
without any further action on the part of the Issuer Trustee. Such
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appointment shall be irrevocable to the extent permitted by applicable law and
subject to the appointment of a successor agent in the United States on terms
substantially similar to those contained in this Section 16 and reasonably
satisfactory to Deutsche Bank. If the IT Process Agent shall cease to act as
agent for service of process, the Issuer Trustee shall appoint, without
unreasonable delay, another such agent, and notify Deutsche Bank of such
appointment. The Issuer Trustee represents to the Underwriters that it has
notified the IT Process Agent of such designation and appointment and that the
IT Process Agent has accepted the same in writing. The Issuer Trustee hereby
authorizes and directs the IT Process Agent to accept such service. The Issuer
Trustee further agrees that service of process upon the IT Process Agent and
written notice of that service to it shall be deemed in every respect effective
service of process upon it in any such legal suit, action or proceeding. Nothing
in this Section 16 shall affect the right of any Underwriter or any person
controlling any Underwriter to serve process in any other manner permitted by
law.
17. Currency Indemnity. The obligations of the parties to make payments
------------------
under this Agreement are in U.S. dollars. Such obligations shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than U.S. dollars or any other realization in
such other currency, whether as proceeds of set-off security, guarantee,
distributions, or otherwise, except to the extent to which such tender recovery
or realization shall result in the receipt by the party which is to receive such
payment of the full amount of the U.S. dollars expressed to be payable under
this Agreement. The party liable to make such payment agrees to indemnify the
party which is to receive such payment for the amount (if any) by which the full
amount of U.S. dollars exceeds the amount actually received, and, in each case,
such obligation shall not be affected by judgment being obtained for any other
sums due under this Agreement. The parties agree that the rate of exchange which
shall be used to determine if such tender, recovery or realization shall result
in the receipt by the party which is to receive such payment of the full amount
of U.S. dollars expressed to be payable under this Agreement shall be the noon
buying rate in New York City for cable transfers in such foreign currency as
certified for customs purposes by the Federal Reserve Bank of New York of the
business day preceding that on which the judgment becomes a final judgment or,
if such noon buying rate is not available, the rate of exchange shall be the
rate at which in accordance with normal banking procedures Deutsche Banc Alex.
Xxxxx Inc. could purchase United States dollars with such foreign currency on
the business day preceding that on which the judgment becomes a final judgment.
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If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
COMMONWEALTH BANK OF
AUSTRALIA
By: /s/ Xxxxxxx Xxxx See
----------------------------------------
Name: Xxxxxxx Xxxx See
Title: Senior Manager
SECURITISATION ADVISORY
SERVICES PTY LIMITED
By: /s/ Xxxxxxx Xxxx See
----------------------------------------
Name: Xxxxxxx Xxxx See
Title: Authorised Officer
PERPETUAL TRUSTEE COMPANY
LIMITED in its capacity as Trustee of
the Trust
By: /s/ Xxxxxx Xxxx
----------------------------------------
Name: Xxxxxx Xxxx
Title: Manager
Accepted: February 14, 2002
DEUTSCHE BANC ALEX. XXXXX 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 Xxx Xxxxxx
Title: Managing Director
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SCHEDULE I
----------
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
--------------------------
Underwriter
-----------
Deutsche Banc Alex. Xxxxx Inc...................... US$760,000,000
Commonwealth Bank of Australia..................... US$0
X. X. Xxxxxx Securities Inc........................ US$80,000,000
Xxxxxx Xxxxxxx & Co. Incorporated.................. US$80,000,000
Xxxxxxx Xxxxx Barney............................... US$80,000,000
================
Total.............. US$1,000,000,000
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SCHEDULE II
-----------
List of 128F(9) Associates of the Issuer Trustee
------------------------------------------------
Perpetual Trustees Australia Ltd
Perpetual Trustee Company Ltd
Perpetual Trustees Nominees Ltd
ACT Nominees Ltd
Perpetual Custodians Ltd
Perpetual Trust Services Limited... (formerly Perpetual Trust Limited)
Hunter Nominees Pty Ltd
PT Limited
Perpetrust Nominees Pty Ltd
Perpetual Australia Property Services (NSW) Pty Ltd... (formerly Perpetual
Realty Pty Limited)
Perpetual Service Network Pty Limited
Investor Marketplace Limited
ASX Perpetual Registrars Limited
Australian Trustees Pty Limited
Australian Trustees Limited
Commonwealth Trustees Pty Limited
Perpetual Services Pty Ltd
Perpetual Australia Pty Limited
Perpetual Nominees Limited... (formerly PTA Nominees Limited)
Perpetual Investment Management Limited... (formerly Perpetual Management
Limited)
Perpetual Trustees SA Limited
Perpetual Australia Property Services (Canberra) Pty Limited
Perpetual Australia Property Services (QLD) Pty Limited
Perpetual Australia Property Services (SA) Pty Limited
Queensland Trustees Pty Limited
Perpetual Fund Services Limited
Perpetual Superannuation Limited
Perpetual Assets Pty Ltd
Perpetual Asset Management Ltd
Perpetual Trustees Victoria Ltd
Perpetual Executors Nominees Ltd
Midway Nominees Pty Ltd
Perpetual Australia Property Services (VIC) Pty Ltd... (formerly Queenstreet
Properties Pty Limited)
Corbun Nominees Pty Ltd
Perpetual Trustees Queensland Ltd
Perpetual Trustee Company (Canberra) Ltd
Charleville Leasing Ltd
Perpetual Trustees W.A. Ltd
Xxxxxxxx Holdings Pty Ltd
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Perpetual Australia Property Services (WA) Pty Ltd... (formerly Perpetual
Property Agency Pty Limited)
Perpetual Custodians WA Pty Ltd
Terrace Guardians Ltd
Selwest Pty Ltd
WA Trustee Nominees Pty Ltd
Perpetual Trustees Consolidated Limited (formerly AXA Trustees Limited)
Perpetual Nominees Canberra Limited (formerly N.M.L. Nominees (Canberra)Limited)
Perpetual Custodian Nominees Pty Ltd.(formerly T&G Guardian Corporation Pty Ltd)
Perpetual Victoria Nominees Pty Ltd. (formerly National Trustee nominees
Proprietary Limited)
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SCHEDULE III
------------
List of 128F(9) Associates of the CBA Parties
---------------------------------------------
AEFC Investments Pty Limited
Alliance Group Holdings
Antarctic Shipping Pty Ltd
Amity American Incorporated (US)
Aquasten Pty Limited
ASB Bank Limited
ASB Finance Limited
ASB Group Limited
ASB Group (Life) Limited (NZ)
ASB Holdings Limited (NZ)
ASB Investment Services Limited (NZ)
ASB Life Limited
ASB Management Services
Limited
ASB Properties Limited
ASB Smartcards Limited (NZ)
ASB Superannuation Nominees
Limited
Australian Bank Limited
Australian TIC Management Pty
Limited
Balga Pty Limited
Xxx Xxxx CMG Life Insurance Company
Bayshore Funding Limited Liability Company (US)
Berhark Pty Ltd (NSW)
Better Off Ltd (NZ)
Binya Pty Limited
BIZserv Pty Limited
Brookhollow Ave Pty
Limited
CBA Corporate Services
(NSW) Pty Limited
CBA Corporate Services
(VIC) Pty Limited
CBA (Delaware) Finance
Incorporated
CBA (Europe) Finance
Limited
CBA Asia Limited
CBA Dairy Leasing Limited (NZ)
CBA EDSA IT Assets Partnership
CBA Funding (NZ) Limited
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CBA Indemnity Co. Pty Limited
CBA International Finance Pty Limited
CBA Investments (No 2) Pty Ltd
CBA Investments Limited CBA Investment Trust
CBA Rail & Tram Company Pty Limited
CBA Specialised Financing Limited
CB-CLA Limited
CBCL Xxxxxxxxx Xxxxx International Pty Ltd.
CBCL Australia Securities Limited
CBCL Fixed Interest Limited
CBFC Leasing Pty Limited
CBFC Properties Pty Limited
CBCL Holdings Australia Limited
CBCL KNS Nominees Pty Ltd
CBCL May Xxxxxx Limited
CBCL Xxxxxx Nominess Pty Ltd
CBCL Property Finance Limited
CBCL Finance Limited
CBCL Property Services Limited
CBCL Xxxxx Australia Pty Ltd
CBCL Subholdings Australia Limited
CBFC Leasing Pty Limited
CBFC Limited
XX Xxxxxxx Ltd (UK)
Central Real Estate Holdings
Corporation
Central Real Estate Holdings Group
CFM (ADF) Limited
CFML Nominees Pty Limited
China Life CMG Life Assurance Company Limited
Chullora Equity Investments (No1) Pty Limited
Chullora Equity Investments (No.2) Pty Limited
Chullora Equity Investments (No.3) Pty Limited
CIF (Xxxxxxxxx) Pty Limited
CIM Unit Trust Managers Ltd (UK)
CISL (Xxxxxxxxx) Pty Limited
Clearwater Services Limited (NZ)
CLL Investments Limited Australia
CMG Asia Life Holdings Limited
CMG Asia Limited CMG Asia Pensions and Retirements Ltd
CMG Asia Pty Limited
CMG Asia (Phillipines) Holding Limited(Bermuda)
CMG Asia Trustee Company Ltd (HK)
CMG XX Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxx
-00-
XXX XX Xxxxx Funds Management Ltd (VIC)
CMG First State (HK) LLC
CMG First State Investment Managers (Asia) Limited
CMG First State Investments (Bermuda) Ltd (Bermuda)
CMG First State Investments (Hong Kong) Ltd
CMG First State Investments (Singapore) Ltd (Singapore)
CMG First State Nominees (HK) Ltd (Hong Kong)
CMG First State Singapore Ltd
CMG Health Co Inc (Phillipines)
CMG Holding (Thailand) Co Ltd (Thailand)
CMG Life Insurance Co Inc
CMG Plans Inc (Phillipines)
CMG Xxxxx (China) Investment Management Limited
CMG Xxxxx (China) Investment Management GP Limited (Cayman Is)
Colonial Asset Management Ltd (NSW)
Colonial Assurance Co of Australia & New Zealand Pty Ltd (VIC)
Colonial Australian Superannuation Ltd (NSW)
Colonial Fiji Life Limited (Fiji)
Colonial Finance (UK) Limited (UK)
Colonial First State (UK) Holdings Ltd (UK)
Colonial First State Fund Managers Ltd (UK)
Colonial First State Fund Services Ltd (VIC)
Colonial First State International Assets Limited (UK)
Colonial First State Investments (Australia) Ltd (NSW)
Colonial First State Investments (Fiji) Limited
Colonial First State Investments (Fiji) Limited (Fiji)
Colonial First State Investments (NZ) Limited
Colonial First State Investments Group Limited
Colonial First State Managed Services Limited
Colonial First State Limited (UK)
Colonial First State Private Equity Ltd (NSW)
Colonial First State Private Ltd (NSW)
Colonial First State Projects Pty Ltd (VIC)
Colonial First State Property Limited
Colonial First State Prop Holdings No. 3 Pty Ltd (VIC)
Colonial First State Property (NZ) Ltd (NZ)
Colonial First State Property Funds Management Ltd (VIC)
Colonial First State Property Holdings No. 2 Pty Ltd (VIC)
Colonial First State Property Investment Ltd (NSW)
Colonial First State Wholesale Australian Bond Fund
Colonial First State Wholesale Australian Corporate Debt Fund
Colonial First State Wholesale Global Bond Fund
Colonial First State Wholesale Short Term Australian Bond Fund
Colonial Franchise Services Ltd (NZ)
Colonial Healthcare (Fiji) Limited
Colonial Holding Company (No.2) Pty Limited
-40-
Colonial Holding Company NZ Limited
Colonial Holding Company Pty Limited
Colonial Insurance Services Pty Limited
Colonial International Holdings Pty Limited
Colonial Investment Co of Aust. Pty Ltd (VIC)
Colonial Investment Services Limited
Colonial Investments Holding Pty Limited
Colonial LGA Holdings Limited
Colonial Life (NZ) Limited
Colonial Mutual Funds Limited
Colonial Mutual Property Group Ltd (VIC)
Colonial Mutual Superannuation Pty Limited
Colonial Nominees No. 3 Fund Pty Ltd (VIC)
Colonial PCA Holdings Pty Limited
Colonial PCA Properties Ltd (VIC)
Colonial PCA Pty Ltd (VIC)
Colonial PCA Services Limited
Colonial Portfolio Services Limited
Colonial Promotions Pty Limited
Colonial Protection Insurance Pty Limited
Colonial Service Corporation New Zealand Limited
Colonial Service (NZ) Ltd (NZ)
Colonial Services (Fiji) Limited
Colonial Services Pty Limited
Colonial Stockbroking Limited
Colonial Superannuation (NZ) Ltd (NZ)
Colonial Superannuation Services Ltd (NSW)
Colonial Tasman Pty Ltd
Colonial Trade Services (Hong Kong) Ltd (HK)
Colonial Trustee Services (NZ) Ltd (NZ)
Colonial Trustee (NZ) Ltd (NZ)
Colonial UK Staff Pension Trustees Ltd (UK)
Commonwealth Bank Officers Superannuation Corporation Pty Ltd
Commonwealth Capital Corporation Limited
Commonwealth Capital Limited
Commonwealth Custodial Services Limited
Commonwealth Development Bank of Australia Limited
Commonwealth Diversified Credit Fund
Commonwealth Funds Management Limited
Commonwealth Insurance Holdings Limited
Commonwealth Insurance Limited
Commonwealth Investment Services Limited
Commonwealth Investments Pty Limited
Commonwealth Life Limited Australia
Commonwealth Managed Investments Limited
Commonwealth Property Limited
-41-
Commonwealth Securities (Japan) Pty Limited
Commonwealth Securities Limited
Computer Fleet Management
Comsec Nominees Pty Limited
Continental Assurance Pty Ltd (NSW)
CSI Services (UK) Ltd (UK)
CST Securitisation Management Limited
CTB Australia Limited
Darontin Pty Limited
Direct Australian Pty Limited
EDS (Australia) Pty Limited
Electronic Financial Technologies Pty Ltd
Emerald Holding Company Limited
EON CMG Life Assurance Bhd
Fleet Care Services Pty Limited
First Australian Pty Limited
First Custodial Services Pty Ltd (VIC)
Goldstar Mortgage Management Pty Limited
Xxxxxx-Xxxxxxxx Ltd and its subsidiaries
Harford Pty Limited
Homepath Pty Limited
Xxxxxxxxx Investment Company Pty Limited
IDDI (No. 1) Limited (NZ)
IDDI (No. 2) Limited (NZ)
IDI (No. 1) Limited (NZ)
IDI (No. 2) Limited (NZ)
Infravest (No. 1) Limited
Infravest (No. 2) Limited
IPAC Securities Limited
Investors Life Insurance Co of Australia Pty Ltd (VIC)
IT Fleet NZ Limited (NZ)
IT Fleet NZ (No. 2) Limited (NZ)
Xxxxxxx Xxxxxx Industry Funds Administration Pty Limited
Xxxxxxx Xxxxxx New Zealand Limited (NZ)
Xxxxxxx Xxxxxx Pty Limited
Kings Ferry Investments Limited (NZ)
Kings Ferry Holdings Limited (NZ)
Kiwi Home Loans Limited (NZ)
Leaseway Transportation Pty Limited
LG Inc (Panama)
Xxxxx and Associates Limited
Micropay Pty Limited
National Bank of Fiji Limited
Nimitz Nominees Pty Ltd (VIC)
Onslow Properties Pty Ltd (NSW)
Perpetual Stock Pty Limited
-42-
Premier Financial Planning Group Ltd (NSW)
Prevbana Ltd (VIC)
Property Internet PLC
PT Astra CMG Life
PT Bank BII Commonwealth
Puerto Limited
Retail Investor Pty Limited
Roodhill Nominees Limited (UK)
RVG Administration Company Pty Ltd
Sasebo Pty Ltd
SBN Nominees Pty Ltd (VIC)
SBV Asia Limited
SBV Nominees Limited
SBV Staff Superannuation Pty Limited
Senator House Investments (UK) Limited
Series 1999-1 Credit Linked Trust
SH Lock (NZ) Limited (NZ)
Share Direct Nominees Pty Limited
Share Investments Pty Limited
Silver Fern Investments Limited (UK)
Southcap Pty Ltd (VIC)
Sovereign Limited
Sparad (No. 20) Pty Limited
Sparad (No. 24) Pty Limited
Sparad (No. 29) Pty Limited
Sparad (No. 30) Pty Limited
Sparad (No. 31) Pty Limited
State Bank of New South Wales Limited
State Nominees Ltd (NSW)
Xxxxxxx Xxxxx Group ESOP Trustee Ltd
Xxxxxxx Xxxxx (Holdings) Ltd (UK)
Xxxxxxx Xxxxx and Company (International) Ltd (UK)
Xxxxxxx Xxxxx and Company Ltd (UK)
Xxxxxxx Xxxxx Nominees Ltd (VIC)
Xxxxxxx Xxxxx UnitTrust Managers Ltd (UK)
Xxxxxxx Xxxx Ltd (UK)
Super Partners Pty Ltd (VIC)
Super Trustees of New Zealand Limited (NZ)
Tactical Global Management Ltd (NZ)
The Colonial Mutual Life Assurance Society Limited
Tracker Index Management Ltd (NSW)
Wilshire 10880 Corporation
Wilshire 10960 Corporation]
-43-
