PERPETUAL TRUSTEES AUSTRALIA LIMITED
PUMA GLOBAL TRUST NO. 3
U.S. $[_________] Class A Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
January [__], 2003
Deutsche Bank Securities Inc. ("Deutsche")
As Representative of the
Several Underwriters Listed
in Schedule I
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Perpetual Trustees Australia Limited (ABN 86 000 000 000), a limited liability
public company under the Corporations Law of New South Wales, Australia
("Perpetual") in its capacity as trustee of PUMA Global Trust No. 3 (the "Issuer
Trustee") proposes to sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representative (the
"Representative"), U.S.$ [_________] aggregate principal amount of Class A
Mortgage Backed Floating Rate Notes, which shall bear interest at three-month
LIBOR plus [__]% until the quarterly payment date in [____] and three-month
LIBOR plus [__]% thereafter (the "Class A Notes"), issued by PUMA Global Trust
No. 3 (the "Trust"). Each Class A Note will be secured by the assets of the
Trust in accordance with the Security Trust Deed (as defined herein). The assets
of the Trust means all assets held by the Issuer Trustee from time to time as
trustee of the Trust including, among other things, a pool of variable and fixed
rate residential housing loans (the "Housing Loans") originated in the name of
Perpetual, in its capacity as trustee of the PUMA warehouse trust, including all
monies received after the Closing Date (as defined herein) with respect to
payments of principal, interest and rights under certain insurance policies with
respect to the Housing Loans, any bank account held by the Issuer Trustee and
the rights of the Issuer Trustee under the Basic Documents (as defined herein).
The Trust will be created pursuant to the Trust Deed, dated July 13, 1990 as
amended, modified or supplemented from time to time (the "Trust Deed") between
Perpetual and the person referred to therein as the Founder and a sub-fund
notice, dated January [__], 2003, from Macquarie Securitisation Limited, ABN 16
003 297 336 (the "Manager") to the Issuer Trustee, which sets forth specific
provisions regarding the Trust and details the provisions of the Class A Notes
(the "Sub-Fund Notice"). The Note Trust Deed, to be dated on or prior to the
Closing Date (as defined herein), by and among the Issuer Trustee, the Manager
and The Bank of New York, New York Branch (the "Note Trustee") provides for the
issuance and registration of the Class A Notes in accordance with the terms and
conditions attached thereto (the "Note Trust Deed"). The Manager and
Macquarie Bank Limited, ABN 46 000 000 000 ("Macquarie") are each a "Macquarie
Party" and collectively are referred to herein as the "Macquarie Parties."
The assets of the Trust will also secure under the Security Trust Deed among
other things, the A$ Class B Notes issued on the Closing Date and any other A$
Notes (as defined in the Sub-Fund Notice) that may be issued after the Closing
Date.
The Class A Notes will be issued in an aggregate principal amount of
US$[_________]. The A$ Class B Notes issued on the Closing Date will be issued
in an aggregate principal amount of A$[_________].
The Manager has prepared and filed with the Securities and Exchange Commission
(the "Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement, including a
prospectus, relating to the Class A Notes. The registration statement as amended
at the time when it became effective, or, if a post-effective amendment has been
filed with respect thereto, as amended by such post-effective amendment at the
time of its effectiveness (including in each case information (if any) deemed to
be part of the registration statement at the time of effectiveness pursuant to
Rule 430 or Rule 430A under the Securities Act) is referred to in this Agreement
as the "Registration Statement", and the prospectus in the form first used to
confirm sales of Class A Notes is referred to in this Agreement as the
"Prospectus".
When used in this Agreement, "Basic Documents" shall mean the Trust Deed, the
Sub-Fund Notice, the Class A Notes, the Security Trust Deed, the Note Trust
Deed, the Currency Swap (as defined in the Sub-Fund Notice), the Redraw Facility
Agreement (as defined in the Sub-Fund Notice) and the Agency Agreement (as
defined in the Sub-Fund Notice) and any other contract, agreement or instrument
which is or is to be entered into by any of the Macquarie Parties or the Issuer
Trustee on or prior to the Closing Date or otherwise in connection with any of
the foregoing or this Agreement. To the extent not defined herein, capitalized
terms used herein have the meanings assigned to such terms in the Prospectus.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the Macquarie Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale.
(a) The Issuer Trustee, at the direction of the Manager, agrees to
sell the Class A Notes to the several Underwriters as
hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agrees to
purchase, severally and not jointly, from the Issuer Trustee
the respective principal amount of Class A Notes set forth
opposite such Underwriter's name in Schedule I hereto at a
price equal to 100% of their principal amount.
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(b) In connection with such purchase, the Manager will pay in
immediately available funds on the Closing Date to the
Underwriters the commissions payable under the letter
agreement relating to fees and expenses between the Manager
and the Representative, dated as of December 3, 2002 (the "Fee
Letter").
(c) Deutsche agrees to pay for any expenses incurred by the
Macquarie Parties in connection with any "roadshow"
presentation to potential investors.
2. Offering.
The Manager and the Issuer Trustee understand that the Underwriters intend to
make a public offering in the United States (and to make non-public offerings in
other jurisdictions) of their respective portions of the Class A Notes, upon the
terms specified in the Prospectus, as soon after the parties hereto have
executed and delivered this Agreement as in the judgment of the Representative
is advisable, provided that the Registration Statement has become effective
prior to the execution of this Agreement.
3. Delivery and Payment.
Payment for the Class A Notes shall be made no later than 12:00 noon, New York
City time on January [__], 2003, by wire transfer in immediately available funds
to the account specified by the Issuer Trustee to the Representative, or at such
other time on the same or such other date, not later than the fifth Business Day
thereafter, as the Representative and the Manager may agree upon in writing. The
time and date of such payment are referred to herein as the "Closing Date." As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City, Sydney or London.
Payment for the Class A Notes shall be made against delivery to the nominee of
The Depository Trust Company ("DTC") for the account of the Representative and
for the respective accounts of the several Underwriters of one or more fully
registered, global book-entry notes (the "Book-Entry Notes") representing
US$[_________] in aggregate Principal Balance of Class A Notes, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Class A Notes duly paid by the Manager. The Book-Entry Notes will be made
available for inspection by the Representative at the office of Mayer, Brown,
Xxxx & Maw, at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 1:00 p.m.,
New York City time, on the Business Day prior to the Closing Date. Interests in
any Book-Entry Notes will be held only in book entry form through DTC, except in
the limited circumstances described in the Prospectus.
4. Representations and Warranties of the Macquarie Parties and the Issuer
Trustee.
I. The Issuer Trustee represents and warrants to each Underwriter and the
Macquarie Parties as of the date of this Agreement and as of the
Closing Date, and agrees with each Underwriter and the Macquarie
Parties, that:
(a) since the respective dates as of which information is provided
in the Registration Statement and the Prospectus, there has
not been any material adverse change or any development
involving a prospective material adverse change in or
affecting the general affairs, business, prospects,
management,
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results of operations, or condition (financial or otherwise)
of the Issuer Trustee except as disclosed in the Prospectus,
which is material in the context of the Issuer Trustee
performing its obligations and duties under the Class A Notes
and each Basic Document to which it is or is to be a party;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of the Commonwealth of Australia,
with the power and authority (corporate and other) to conduct
its business as described in the Prospectus and to issue the
Class A Notes and to act as required by each Basic Document to
which it is or is to be a party and by law to comply with the
requirements of any legislation and subordinate legislation
(including, without limitation and to the extent relevant, any
Consumer Credit Code) and no other thing is required to be
done by the Issuer Trustee (including without limitation the
making of any filing or registration) in order to issue the
Class A Notes or to execute and act as required by each Basic
Document to which it is or is to be a party;
(c) it has been duly qualified for the transaction of business and
is in good standing under the laws of each other jurisdiction
in which it conducts any business so as to require such
qualification, other than where the failure to be so qualified
and in good standing would not have a material adverse effect
on the transactions contemplated herein or in the Basic
Documents;
(d) this Agreement has been duly authorized, executed and
delivered by the Issuer Trustee;
(e) the Class A Notes have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, they will
have been duly executed, authenticated, issued and delivered
and will constitute valid and binding obligations of the
Issuer Trustee, entitled to the benefits provided by the Note
Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or
other similar laws or general principles affecting the
enforcement of creditors rights generally and to general
equitable principles. The execution, delivery and performance
by the Issuer Trustee of each of the Basic Documents to which
it either is, or is to be, a party and this Agreement has been
duly authorized by the Issuer Trustee, and, when executed and
delivered by it and, each of the other parties thereto, each
of the Basic Documents will constitute a legal, valid and
binding obligation of the Issuer Trustee, enforceable against
it in accordance with its terms, subject as to enforceability
to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar
laws or general principles affecting the enforcement of
creditors rights generally and to general equitable
principles;
(f) it is not, nor with the giving of notice or lapse of time or
both will be, in violation of or in default under, its (i)
constitution or (ii) any indenture, mortgage, deed of trust,
loan agreement or any other agreement or instrument to which
it is a party or by which it or any of its properties is
bound, except in the case of (ii), for violations and defaults
which individually and in the aggregate would not have a
material adverse effect on the transactions
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contemplated herein or in the Basic Documents; the issue and
sale of the Class A Notes and the performance by it of all of
the provisions of its obligations under the Class A Notes, the
Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (I)
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or any other agreement
or instrument to which it is a party or by which it is bound
or to which any of its property or assets of the Trust is
subject; (II) result in any violation of the provisions of its
constitution or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over it, or any of its properties; or
(III) result in the creation or imposition of any lien or
encumbrance upon any of its property pursuant to the terms of
any lien or encumbrance upon any of its property pursuant to
the terms of any indenture, mortgage, contract or other
instrument other than pursuant to the Basic Documents; and no
consent, approval, authorization, order, license, registration
or qualification of or with any such court or governmental
agency or body is required by the Issuer Trustee for the issue
and sale of the Class A Notes or the consummation by the
Issuer Trustee of the transactions contemplated by this
Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act,
the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (the latter,
including such applicable rules and regulations, the "Trust
Indenture Act") and as may be required under state securities
or "Blue Sky" laws in connection with the purchase and
distribution of the Class A Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions,
suits or proceedings pending or, to its knowledge, threatened
against or affecting the Issuer Trustee or the Trust or, to
which it is or may be a party or to which it or any property
of the Trust is or may be the subject, (i) asserting the
invalidity of this Agreement or of any of the Basic Documents
in relation to the Issuer Trustee, (ii) seeking to prevent the
issuance of the Class A Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the
Basic Documents by the Issuer Trustee, (iii) that may
adversely affect the United States Federal or Australian
Federal or state income, excise, franchise or similar tax
attributes of the Class A Notes, (iv) that could materially
and adversely affect the Issuer Trustee's performance of its
obligations under, or the validity or enforceability of, this
Agreement or any of the Basic Documents against the Issuer
Trustee or (v) which could individually or in the aggregate
reasonably be expected to have a material adverse effect on
the interests of the holders of any of the Class A Notes;
(h) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all
material respects;
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(i) to the Issuer Trustee's knowledge, no event has occurred which
would entitle the Manager to direct the Issuer Trustee to
retire as trustee of the Trust under clause 19 of the Trust
Deed;
(j) It has not taken any corporate action and (to the best of its
knowledge and belief having made reasonable inquiry and
investigation) no other steps have been taken or legal
proceedings been started or threatened against it for its
winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager,
administrator, provisional liquidator or similar officer of it
or of any or all of its assets;
(k) subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "Australian Tax Act") in relation
to payments under the Class A Notes, no withholding or
deduction for any taxes, duties, assessments or governmental
charges of whatever nature will be imposed or made for or on
account of any income, registration, transfer or turnover
taxes, customs or other duties or taxes of any kind, levied,
collected, withheld or assessed by or within, the Commonwealth
of Australia, in connection with the authorization, execution
or delivery of any of the Basic Documents to which it is or is
to be a party or with the authorization, execution, issue,
sale or delivery of the Class A Notes or the performance by
the Issuer Trustee of any of its obligations under the Basic
Documents to which it is or is to be a party or the Class A
Notes, other than any stamp duty payable with respect to the
execution of the Basic Documents;
(l) the Class A Notes and the obligations of the Issuer Trustee
under the Note Trust Deed will be secured (pursuant to the
Security Trust Deed) by a first floating charge over the
assets of the Trust subject to the Prior Interest (as defined
in the Security Trust Deed); and
(m) no event has occurred or circumstances arisen which, had the
Class A Notes already been issued, would (whether or not with
the giving of notice or direction and/or the passage of time
and/or the fulfillment of any other requirement) oblige it to
retire as Issuer Trustee or constitute grounds for its removal
as Issuer Trustee under any Basic Document or constitute an
Event of Default (as defined in the Security Trust Deed).
II. The Manager represents and warrants to each Underwriter and the Issuer
Trustee, as of the date of this Agreement and as of the Closing Date,
that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each
preliminary prospectus filed 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
6
Underwriter furnished to the Manager in writing by such
Underwriter directly or through the Representative expressly
for use therein;
(b) the Registration Statement has been declared effective under
the Securities Act by the Commission; no stop order suspending
the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Manager, threatened by the
Commission; and the Registration Statement and Prospectus (as
amended or supplemented if the Manager shall have furnished
any amendments or supplements thereto) comply, or will comply,
as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act and do not and will
not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the
date of the Prospectus and any amendment or supplement
thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable,
at the Closing Date will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to
(i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) of
the Note Trustee under the Trust Indenture Act, (ii)
statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the
Manager in writing by such Underwriter directly or through the
Representative expressly for use therein, and (iii) the
information under the heading "Prepayment and Yield
Considerations" in the Registration Statement and the
Prospectus;
(c) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the
Manager, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, which is material in the
context of the Manager performing its obligations and duties
under each Basic Document to which it is or is to be a party;
(d) the Manager is a corporation duly incorporated and validly
existing under the Corporations Xxx 0000 of the Commonwealth
of Australia, the Manager has the power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the Basic
Documents to which it is a party and to carry out the
transactions contemplated by such Basic Documents; the Manager
has been duly qualified or licensed for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification or
licensing, other than where the failure to be
7
so qualified or licensed or in good standing would not have a
material adverse effect on the transactions contemplated
herein or in the Basic Documents;
(e) this Agreement has been duly authorized, executed and
delivered by the Manager;
(f) each of the Basic Documents to which it is or is to be a party
has been duly authorized by it, the Note Trust Deed has been
duly qualified under the Trust Indenture Act and, when
executed and delivered by the Manager and each of the other
parties thereto, each of the Basic Documents will constitute a
legal, valid and binding obligation of the Manager,
enforceable against the Manager in accordance with its terms,
subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors rights generally and to general equitable
principles; and the Class A Notes and the Basic Documents each
will conform to the descriptions thereof in the Prospectus;
(g) the Manager is not, nor with the giving of notice or lapse of
time or both would it be, in violation of or in default under,
its constitution or any indenture, mortgage, deed of trust,
loan agreement or any other agreement or instrument to which
it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually
and in the aggregate would not have a material adverse effect
on the transactions contemplated herein or in the Basic
Documents; the issue and sale of the Class A Notes and the
performance by the Manager of all of the provisions of its
obligations under the Class A Notes, the Basic Documents and
this Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or any other agreement or instrument to which the
Manager is a party or by which the Manager is bound or to
which any of the property or assets of the Manager is subject,
nor will any such action result in any violation of the
provisions of the constitution of the Manager or any
applicable law or statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction
over the Manager, or any of its properties; and no consent,
approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Class A
Notes or the consummation by the Manager of the transactions
contemplated by this Agreement or the Basic Documents, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under
the Securities Act, the Trust Indenture Act and as may be
required under state securities or "Blue Sky" laws of the
United States in connection with the purchase and distribution
of the Class A Notes by the Underwriters;
(h) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the
Manager, threatened against or affecting the Manager or its
properties or, to which the Manager is or may be a party or to
which the Manager or any property of the Manager is or may be
the subject, (i) asserting
8
the invalidity of this Agreement or of any of the Basic
Documents, (ii) seeking to prevent the issuance of the Class A
Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents,
(iii) that may adversely affect the United States Federal or
Australian income, excise, franchise or similar tax attributes
of the Class A Notes, (iv) that could materially and adversely
affect the performance of the Manager of its obligations
under, or the validity or enforceability of, this Agreement or
any of the Basic Documents or (v) which could individually or
in the aggregate reasonably be expected to have a material
adverse effect on the interests of the holders of the Class A
Notes or the marketability of the Class A Notes; and there are
no statutes, regulations, contracts or other documents that
are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described
as required;
(i) the representations and warranties of the Manager contained in
the Basic Documents are true and correct in all material
respects;
(j) PricewaterhouseCoopers ("PWC") are independent public
accountants with respect to the Manager within the meaning of
the Securities Act;
(k) the Manager owns, possesses or has obtained all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings
with, all Australian and United States federal, state, local
and other governmental authorities (including United States
regulatory agencies), all self-regulatory organizations and
all courts and other tribunals, domestic or foreign, necessary
to perform its obligations under this Agreement and the Basic
Documents, and the Manager has not received any actual notice
of any proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order,
approval or other authorization; and the Manager is in
compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the
Basic Documents;
(l) no event has occurred which would entitle the Manager to
direct Perpetual to retire as trustee of the Trust under
clause 19 of the Trust Deed;
(m) the Manager has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been
taken or legal proceedings been started or threatened against
the Manager for its winding-up, dissolution or reorganization
or for the appointment of a receiver, receiver and manager,
administrator, provisional liquidator or similar officer of it
or of any or all of its assets;
(n) no stamp or other duty is assessable or payable, and, subject
only to compliance with Section 128F of the Australian Tax Act
in relation to payments under the Class A Notes, no
withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature is imposed or made for
or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind,
levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of
9
or authority therein or thereof having power to tax in such
jurisdiction, in connection with the authorization, execution
or delivery of the Basic Documents to which it is to be a
party or with the authorization, execution, issue, sale or
delivery of the Class A Notes and the performance of the
Manager's obligations under the Basic Documents to which it
is, or is to be, a party and the Class A Notes except for any
of the Basic Documents on which stamp duty is payable;
(o) no event has occurred or circumstances arisen which, had the
Class A Notes already been issued, would (whether or not with
the giving of notice and/or the passage of time and/or the
fulfillment of any other requirement) constitute an Event of
Default (as defined in the Security Trust Deed).
III. Macquarie represents and warrants to each Underwriter and the Issuer
Trustee, as of the date of this Agreement and as of the Closing Date,
that:
(a) Macquarie is a company incorporated in the Australian Capital
Territory;
(b) this Agreement has been duly authorized, executed and
delivered by Macquarie;
(c) the representations and warranties of Macquarie contained in
the Basic Documents are true and correct in all material
respects; and
(d) since the respective dates as of which information is provided
in the Registration Statement and the Prospectus, there has
been no material adverse change, or any development involving
a prospective material adverse change, in the condition
(financial or otherwise) of Macquarie, which is material in
the context of Macquarie performing its obligations and duties
under each Basic Document to which it is or is to be a party.
5. Covenants and Agreements.
I. The Manager covenants and agrees with each of the several Underwriters
as follows:
(a) to file, if required, the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A
under the Securities Act, and to furnish copies of the
Prospectus to the Underwriters, provided that the distribution
of such copies shall be at the Underwriters' expense, in New
York City prior to 10:00 a.m., New York City time, on the
Business Day next succeeding the date of this Agreement in
such quantities as the Representative may reasonably request;
(b) to deliver, at the expense of the Manager, to the
Representative upon its request up to 5 signed copies of the
Registration Statement and each post-effective amendment
thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement and
each post-effective amendment thereto, in each case without
exhibits and, during the period mentioned in paragraph (e)
below, to each of the Underwriters, as many copies of the
Prospectus (including all amendments and supplements thereto)
10
as the Representative may reasonably request, provided that
the distribution of such copies shall be at the Underwriter's
expense;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, after the Registration Statement
became effective, to furnish to the Representative a copy of
the proposed amendment or supplement for review and not to
file any such proposed amendment or supplement to which the
Representative reasonably objects;
(d) to advise the Representative promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration
Statement has been filed or becomes effective, (ii) when any
supplement to the Prospectus or any amendment to the
Prospectus has been filed and to furnish the Representative
with copies thereof, (iii) of any request by the Commission
for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the
Prospectus or the initiation or threatening of any proceeding
for that purpose, (v) of the occurrence of any event, within
the period referenced in paragraph (e) below, as a result of
which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, and
(vi) of the receipt by the Manager of any notification with
respect to any suspension of the qualification of the Class A
Notes for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and to use
its best efforts to prevent the issuance of any such stop
order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order
suspending any such qualification of the Class A Notes, or
notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Class A Notes, as in the opinion of
counsel for the Underwriters, a prospectus relating to the
Class A Notes is required by law to be delivered in connection
with sales by an Underwriter or a dealer, any event shall
occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with
law, forthwith to prepare and furnish, at the expense of the
Manager, to the Underwriters and to the dealers (whose names
and addresses the Representative will furnish to the Manager)
to which Class A Notes may have been sold by the
Representative on behalf of the Underwriters and to any other
dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will
comply with law;
11
(f) to endeavor to qualify the Class A Notes for offer and sale
under the securities or Blue Sky laws of such states or
territories of the United States as the Representative shall
reasonably request and to continue such qualification in
effect so long as reasonably required for distribution of the
Class A Notes; provided that the Manager shall not be required
to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to the holders of the Class A
Notes and to the Representative as soon as practicable an
earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust occurring
after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) so long as the Class A Notes are outstanding, to furnish to
the Representative (i) copies of each certificate, the annual
statements of compliance and the annual independent certified
public accountant's audit report on the financial statements
furnished to the Issuer Trustee pursuant to the Basic
Documents by first class mail as soon as practicable after
such statements and reports are furnished to the Issuer
Trustee, (ii) copies of each amendment to any of the Basic
Documents, (iii) on each day preceding a Quarterly Payment
Date or as soon thereafter as practicable, notice by telex or
facsimile to the Representative of the Note Factor (as defined
in the note conditions set out in Schedule 2 of the Note Trust
Deed, the "Note Conditions") (iv) copies of all reports or
other communications (financial or other) furnished to holders
of the Class A Notes, and copies of any reports and financial
statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national
securities exchange in connection with the Class A Notes, and
(v) from time to time such other information concerning the
Trust or the Manager as the Representative may reasonably
request;
(i) to the extent, if any, that the ratings provided with respect
to the Class A Notes by Xxxxx'x Investors Service, Inc.,
Standard & Poor's Ratings Group, A Division of The XxXxxx-Xxxx
Companies, Inc. and Fitch Ratings (the "Rating Agencies") are
conditional upon the furnishing of documents or the taking of
any other action by the Manager, the Manager shall use its
best efforts to furnish such documents and take any other such
action;
(j) to assist the Representative to make arrangements with DTC,
Euroclear and Clearstream, Luxembourg concerning the issue of
the Class A Notes and related matters;
(k) to not take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has
reason to believe would result in the Class A Notes not being
assigned the ratings referred to in Section 6(m) below;
(l) to pay all fees, costs and expenses incident to the
performance of its obligations hereunder, including
commissions payable, in immediately available funds to the
Underwriters for the performance of their obligations under
this Agreement whether or not the transactions contemplated in
this
12
Agreement are consummated or this Agreement is terminated, as
set forth in the Fee Letter; provided that such payments shall
be made without prejudice to the rights or remedies of the
Manager related to any termination of this Agreement; and
(m) to cause the charges created by or contained in the Security
Trust Deed to be registered within all applicable time limits
in accordance with the Xxxxxxxxxx Xxxxxxxxxxxx Xxx 0000 (and
any regulations related thereto).
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the Macquarie Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from
the sale of the Class A Notes pursuant to this Agreement in
the manner specified in the Prospectus under the caption "Use
of Proceeds";
(b) to notify the Representative and the Macquarie Parties
promptly after it becomes actually aware of any matter which
would make any of its representations and warranties in this
Agreement untrue if given at any time prior to payment being
made to the Issuer Trustee on the Closing Date and take such
steps as may be reasonably requested by the Representative to
remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added
or similar tax, fee or duty (including court fees) in relation
to the execution of, or any transaction carried out pursuant
to, the Basic Documents or in connection with the issue and
distribution of the Class A Notes or the enforcement or
delivery of this Agreement;
(d) to use all reasonable efforts to procure satisfaction on or
before the Closing Date of the conditions referred to in
Section 6 below and, in particular (i) the Issuer Trustee
shall execute those of the Basic Documents not executed on the
date hereof on or before the Closing Date, and (ii) the Issuer
Trustee will assist the Representative to make arrangements
with DTC, Euroclear and Clearstream, Luxembourg concerning the
issue of the Class A Notes and related matters;
(e) to perform all of its obligations under each of the Basic
Documents to which it is a party which are required to be
performed prior to or simultaneously with the closing on the
Closing Date;
(f) not to take, or cause to be taken, any action or knowingly
permit any action to be taken which it knows or has reason to
believe would result in the Class A Notes not being assigned
the ratings referred to in Section 6(m) below; and
(g) not, prior to or on the Closing Date, amend the terms of any
Basic Document nor execute any of the Basic Documents other
than in the agreed form without the consent of the
Underwriters.
13
6. Conditions to the Obligations of the Underwriters.
The several obligations of the Underwriters hereunder are subject to the
performance by the Macquarie Parties and the Issuer Trustee of their obligations
hereunder and to the following additional conditions:
(a) the Registration Statement shall have become effective, or if
a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have
become effective, not later than 5:00 p.m., New York City
time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the rules
and regulations under the Securities Act and in accordance
with Section 5(I)(a) hereof; and all requests for additional
information by the Representative with respect thereto shall
have been complied with to the satisfaction of the
Representative;
(b) the representations and warranties of the Macquarie Parties
and the Issuer Trustee contained herein are true and correct
on and as of the Closing Date as if made on and as of the
Closing Date and the representations and warranties of the
Macquarie Parties in the Basic Documents will be true and
correct on the Closing Date; and each Macquarie Party and the
Issuer Trustee shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder
and under the Basic Documents at or prior to the Closing Date;
(c) since the respective dates as of which information is given in
the Prospectus there shall not have been any material adverse
change or any development involving a prospective material
adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders'
equity or results of operations of each Macquarie Party, taken
as a whole, otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the
Representative makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Class
A Notes on the Closing Date on the terms and in the manner
contemplated in the Prospectus;
(d) the Representative shall have received on and as of the
Closing Date a certificate of an executive officer of each
Macquarie Party, with specific knowledge about financial
matters of such Macquarie Party, satisfactory to the
Representative to the effect set forth in subsections (a)
through (c) of this Section;
(e) Xxxxxxx Xxx, Australian counsel for Macquarie and the Manager,
shall have furnished to the Representative their written
opinion, dated on or prior to the Closing Date, in form and
substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
14
(f) Xxxxxxx Xxx, Australian tax counsel for Macquarie and the
Manager shall have furnished to the Representative their
written opinion, dated on or prior to the Closing Date, in
form and substance satisfactory to the Representative, and
such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon
such matters;
(g) the Representative on or prior to the Closing Date shall have
received letters, dated the date thereof, from (i) PWC, in
form and substance satisfactory to the Representative and
counsel for the Underwriters, confirming that they are
independent public accountants within the Securities Act and
the applicable rules and regulations related thereto and
stating in effect that they determine that certain information
of an accounting, financial or statistical nature set forth in
the Registration Statement and the Prospectus (and any
amendments and supplements thereto), agrees with the
accounting records of the Manager, excluding any questions of
legal interpretation, and (ii) PWC, in form and substance
satisfactory to the Representative and counsel for the
Underwriters, stating in effect that they have performed
certain specified proceedings with respect to the Housing
Loans to be acquired by the Trust on the Closing Date;
(h) XxXxx Xxxxxx LLP, special United States counsel to the
Underwriters, shall have furnished to the Underwriters their
written opinion, dated the Closing Date, with respect to the
Registration Statement, the Prospectus and other related
matters as the Underwriters may reasonably request, and such
counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such
matters;
(i) Mayer, Brown, Xxxx & Maw, United States counsel for Macquarie
and the Manager, shall have furnished to the Representative
their written opinion, dated on or before the Closing Date, in
form and substance satisfactory to the Representative, and
such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon
such matters, to the effect that:
(i) The Note Trust Deed has been duly qualified under the
Trust Indenture Act;
(ii) To the best of such counsel's knowledge, there are no
material contracts, indentures, or other documents of
a character required to be described or referred to
under either the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement other than those described or
referred to therein or filed or incorporated by
reference as exhibits thereto;
(iii) The Trust is not, and will not as a result of the
offer and sale of the Class A Notes as contemplated
in this Agreement, or as a result of the consummation
of the transactions contemplated by the terms of the
Basic Documents become, required to be registered as
an "investment company", under the Investment Company
Act of 1940, as amended;
(iv) No consent, approval, authorization or order of any
United States federal court or governmental agency or
body is required (i) for the
15
consummation by Macquarie or the Manager of the
transactions contemplated by the terms of the Basic
Documents or (ii) for the consummation of the
transactions contemplated by this Agreement in
connection with the issuance or sale of the Class A
Notes by the Issuer Trustee, except, in each case,
(a) such as have been obtained under the Securities
Act and the Trust Indenture Act and (b) such as may
be required under the blue sky laws of any
jurisdiction in connection with the purchase and the
offer and sale of the Class A Notes, as to which such
counsel will express no opinion;
(v) The Registration Statement has become effective under
the Securities Act as of the date and time specified
in such opinion, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued or
threatened under Section 8(d) of the Securities Act;
(vi) The Registration Statement and the Prospectus, as of
their respective effective or issue date, other than
financial or statistical information contained
therein, complied as to form in all material respects
with the requirements of the Securities Act and the
applicable rules and regulations thereunder;
(vii) Such counsel shall have no reason to believe that the
Registration Statement, as of the effective date
thereof or as of the date of such opinion, contained
or contains any untrue statement of a material fact
or omitted or omits to state a material fact
necessary in order to make the statements therein not
misleading or that the final Prospectus, as of the
date thereof or as of the date of such opinion,
contained or contains any untrue statement of a
material fact or omitted or omits to state a material
fact necessary in order to make the statements
therein, in the light of the circumstances under
which they were made, not misleading, provided that
such counsel shall express no opinion as to the
financial statements or other financial data
contained in the Registration Statement or the
Prospectus;
(viii) The statements in the Prospectus under the captions
"Description of the Class A Notes" and "Description
of the Transaction Documents and Parties" insofar as
they purport to summarize certain terms of the Class
A Notes and the applicable Basic Documents,
constitute a fair summary of the provisions purported
to be summarized; and
(ix) To the extent that the execution and delivery of this
Agreement, is a matter to be determined under New
York law, this Agreement has been duly and validly
executed and delivered and constitutes the legal,
valid and binding obligation of each of Macquarie,
the Issuer Trustee and the Manager, provided that
such counsel shall express no opinion regarding any
severability provision in this Agreement or regarding
the legal, valid and binding effect or the
enforceability of any indemnification provisions in
this Agreement to the extent that any such provisions
may be deemed to cover matters under the federal
securities laws.
16
(j) Mayer, Brown, Xxxx & Maw, United States federal income tax
counsel for Macquarie and the Manager, shall have furnished to
the Representative their written opinion, dated on or prior to
the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such
papers and information as they may reasonably request to
enable them to pass upon such matters;
(k) Mallesons Xxxxxxx Xxxxxx counsel for the Issuer Trustee, the
Security Trustee and the Note Trustee, shall have furnished to
the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such
papers and information as they may reasonably request to
enable them to pass upon such matters;
(l) the Representative shall have received a letter or letters
from each counsel delivering any written opinion to any Rating
Agency in connection with the transaction described in this
Agreement which opinion is not otherwise described in this
Agreement allowing the Representative to rely on such opinion
as if it were addressed to the Representative;
(m) at the Closing Date, the Class A Notes shall have been rated
"AAA" by Standard & Poor's Ratings Group, A Division of The
XxXxxx-Xxxx Companies, Inc. and Fitch Ratings and "Aaa" by
Xxxxx'x Investors Service, Inc., as evidenced by letters from
the Rating Agencies;
(n) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
(o) on or prior to the Closing Date, the Macquarie Parties and the
Issuer Trustee shall have furnished to the Representative such
further certificates and documents as the Representative shall
reasonably request; and
(p) the Representative shall have received evidence satisfactory
to it and its counsel that on or prior to the Closing Date A$
Class B Notes in the principal amount required to be issued on
the Closing Date in accordance with the terms thereof have
been duly authorized and issued pursuant to the Basic
Documents.
7. Indemnification and Contribution.
(a) Each of Macquarie and the Manager, jointly and severally,
agrees to indemnify and hold harmless each Underwriter, each
affiliate of an Underwriter that assists such Underwriter in
the distribution of the Class A Notes, and each person, if
any, that controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the
Manager shall have furnished any
17
amendments or supplements thereto) (other than to the extent
any losses, claims, damages or liabilities arise as a result
of any information under the heading "Prepayment and Yield
Considerations"), or caused by any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except (i) insofar as such losses, claims, damages
or liabilities are caused by any untrue statement or omission
or alleged untrue statement or omission made in reliance upon
and in conformity with information relating to any Underwriter
furnished to a Macquarie Party in writing by such Underwriter
directly or through the Representative expressly for use
therein or (ii) that such indemnity with respect to the
Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling any Underwriter) from whom the
person asserting any such loss, claim, damage or liability
purchased the Class A Notes which are the subject thereof if
such person did not receive a copy of the Prospectus (as
amended or supplemented) at or prior to the confirmation of
the sale of such Class A Notes to such person in any case
where such delivery is required by the Securities Act and the
untrue statement or omission of a material fact contained in
such Prospectus was corrected in the Prospectus (as amended or
supplemented).
(b) To the extent that any payment of damages by a Macquarie Party
pursuant to subsection 7(a) above is determined to be a
payment of damages pursuant to Prudential Standard APS 120
"Funds Management and Securitisation", paragraph 15 of
Guidance Note AGN 120.3, "Purchase and Supply of Assets
(including Securities issued by SPVs)", being Guidance Note to
Prudential Standard APS 120 "Funds Management and
Securitisation" or any successor thereto, such payment shall
be subject to the terms therein (or the terms of any
equivalent provision in any replacement of Prudential Standard
APS 120 "Funds Management and Securitisation").
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Manager, its directors, its
officers who sign the Registration Statement, the Issuer
Trustee and Macquarie and each person that controls any of the
Macquarie Parties or the Issuer Trustee within the meaning of
Section 15 of the Securities Act and Section 20 of the
Exchange Act to the same extent as the foregoing indemnity
from the Macquarie Parties or the Issuer Trustee to each
Underwriter, but only with reference to information relating
to such Underwriter furnished to a Macquarie Party in writing
by such Underwriter directly or through the Representative
expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may
be sought pursuant to subsections (a) or (c) above, such
person (the "Indemnified Person") shall promptly notify the
person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall
pay the fees
18
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 Class A Notes, and such control
persons of Underwriters shall be designated in writing by the
Representative and any such separate firm for the Manager, its
directors, its officers who sign the Registration Statement,
the Issuer Trustee and Macquarie and such control persons of
any of the Macquarie Parties or the Issuer Trustee shall be
designated in writing by the Manager. The Indemnifying Person
shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel as contemplated by the
third sentence of this subsection (d), the Indemnifying Person
agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by
such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to
the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Person is or could have
been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such
proceeding.
(e) If the indemnification provided for in subsections (a) or (c)
above is unavailable to an Indemnified Person in respect of
any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such subsection,
in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Macquarie
Parties and the Issuer Trustee on the one hand, and the
Underwriters on the other,
19
from the offering of the Class A Notes, and (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Macquarie Parties
and the Issuer Trustee on the one hand, and of the
Underwriters on the other, in connection with the statements
or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the
Macquarie Parties and the Issuer Trustee on the one hand, and
the Underwriters on the other, shall be deemed to be in the
same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Macquarie
Parties and the Issuer Trustee and the total underwriting
discounts and the commissions received by the Underwriters in
respect thereof respectively bear to the aggregate public
offering price of the Class A Notes. The relative fault of the
Macquarie Parties and the Issuer Trustee on the one hand and
the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Macquarie Parties or the Issuer Trustee or by
the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission.
The Macquarie Parties, the Issuer Trustee and the Underwriters
agree that it would not be just and equitable if contribution
pursuant to this Section were determined by pro rata
allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in this
subsection (e) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
incurred by such Indemnified Person in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in
excess of the amount by which the total price at which the
Class A Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the
respective principal amount of Class A Notes set forth
opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
20
(f) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the
Macquarie Parties, the Issuer Trustee and the Underwriters set
forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or
on behalf of the Macquarie Parties or the Issuer Trustee, its
officers or directors or any other person controlling the
Macquarie Parties or the Issuer Trustee and (iii) acceptance
of and payment for any of the Class A Notes.
8. Termination.
Notwithstanding anything herein contained, this Agreement may be terminated in
the absolute discretion of the Representative, by notice given to the Manager,
if after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by the New York Stock Exchange, (ii) trading of any securities of or guaranteed
by any of the Macquarie Parties or the Issuer Trustee shall have been suspended
on any exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York, Sydney, Australia or London, England
shall have been declared by either United States Federal, New York State,
Commonwealth of Australia, New South Wales State or related United Kingdom
authorities, or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Representative, is material and adverse and which, in the
judgment of the Representative, makes it impracticable to market the Class A
Notes on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness of Agreement; Default of Underwriters.
This Agreement shall become effective upon the later of (x) execution and
delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall fail or refuse
to purchase Class A Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Class A Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Class A
Notes to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Class A Notes set
forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Class A Notes set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representative
may specify, to purchase the Class A Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Class A Notes that any
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 9 by an amount in excess of one-ninth of such principal amount
of Class A Notes without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Class A Notes which it or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Class A Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of Class
A Notes to be purchased on such date, and arrangements
21
satisfactory to the Representative and the Manager for the purchase of such
Class A Notes are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Manager. In any such case either you or the Manager shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. Expenses upon Termination.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Macquarie Parties or the
Issuer Trustee to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason any of the Macquarie Parties or the Issuer
Trustee shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, Macquarie agrees
to reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
11. Fee Letter.
Notwithstanding any term or provision herein in relation to fees and expenses,
any obligation of reimbursement of such fees or expenses by a Macquarie Party
shall be subject to, and where applicable, superceded by, the terms and
provisions of the Fee Letter.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process.
Each of the Macquarie Parties and the Issuer Trustee hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
Macquarie Parties irrevocably appoints Macquarie Equities (USA) Inc., 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the Issuer Trustee irrevocably
appoints CT Corporation, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, to act as authorized agents for the Macquarie Parties and the Issuer
Trustee, respectively, in the Borough of Manhattan in The City of New York upon
which process may be served in any such suit or proceeding, and agrees that
service or process upon such agent, and written notice of said service to it by
the person servicing the same to the address provided in Section 19, shall be
deemed in every respect effective service of process upon it in any such suit or
proceeding. Each of the Macquarie Parties and the Issuer Trustee further agrees
to take any and all action as may be necessary to maintain such designation and
appointment of such agent in full force and effect for so long as the Class A
Notes remain outstanding.
The obligation of any of the Macquarie Parties or the Issuer Trustee in respect
of any sum due to any Underwriter shall, notwithstanding any judgment in a
currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
22
purchased are less than the sum originally due to such Underwriter hereunder,
each of the Macquarie Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
13. Foreign Taxes.
All payments to be made by the Issuer Trustee and the Macquarie Parties
hereunder shall be made without withholding or deduction for or on account of
any present or future taxes, duties or governmental charges whatsoever unless
the Issuer Trustee or such Macquarie Party, as applicable, is compelled by law
to deduct or withhold such taxes, duties or charges. In that event, the Issuer
Trustee or such Macquarie Party, as applicable, shall pay such additional
amounts as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been received
if no withholding or deduction had been made.
14. Waiver of Immunities.
To the extent that any of the Issuer Trustee or any of the Macquarie Parties or
any of their properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any respect thereof, from setoff or counterclaim, from
the jurisdiction of any court, from service or process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, the Issuer Trustee and each of the Macquarie Parties, as
applicable, hereby irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity and consents to such relief and enforcement.
15. Judgment Currency.
If any judgment or order in any legal proceeding against any of the Issuer
Trustee or any of the Macquarie Parties is given or made for any amount due
hereunder and such judgment or order is expressed and paid in a currency (the
"Judgment Currency") other than United States dollars and there is any variation
as between (i) the rate of exchange (the "Judgment Rate") at which the United
States dollar amount is converted into Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange (the "Market Rate") at which
the person to whom such amounts is paid (the "Payee") is able to purchase United
States dollars with the amount of the Judgment Currency actually received by the
holder, then the difference, expressed in United States dollars, between such
amount calculated at the Judgment Rate and such amount calculated at the Market
Rate shall be indemnified (a) if negative by the Issuer Trustee and the
Macquarie Parties, as applicable, to the Payee and (b) if positive by the Payee
to the Issuer Trustee and the Macquarie Parties, as applicable. The foregoing
indemnity shall constitute separate and independent obligations of the Issuer
Trustee and the Macquarie Parties or the Payee, as the case may be, and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate or exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
23
16. Selling Restrictions.
(a) No prospectus in relation to the Class A Notes has been lodged
with, or registered by, the Australian Securities and
Investments Commission or the Australian Stock Exchange
Limited. Accordingly, each of the Underwriters, severally and
not jointly, represents and agrees that it has not offered and
will not offer, for issue, and has not invited and will not
invite applications for the issue of the Class A Notes or
offer the Class A Notes for sale or invite offers to purchase
the Class A Notes to, a person, unless the minimum amount
payable to the relevant Underwriter for the Class A Notes,
after disregarding any amount paid or payable or lent by the
relevant Underwriter or any associate (as determined under
sections 10 to 17 of the Australian Corporations Act 2001) of
that Underwriter, on acceptance of the offer by that person is
at least A$500,000 (or the equivalent thereof in any other
currency).
(b) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this
Agreement, it will offer the Class A Notes for sale, or invite
or induce offers to buy the Class A Notes, by:
(i) making the Prospectus available for inspection on a
Bloomberg source and inviting potential investors to
access the Prospectus available on that Bloomberg
source; or
(ii) making hard copies of the Prospectus for the Class A
Notes available for collection from the Underwriter
in at least its principal office in New York City or
London and, in the case of purchasers in the United
States, by sending or giving copies of the Prospectus
to those purchasers.
(c) Each Underwriter agrees that it will not sell Class A Notes
to, or invite or induce offers for Class A Notes from:
(i) any associate of the Issuer Trustee or a Macquarie
Party specified in Schedule II or Schedule III; or
(ii) any other associate from time to time specified in
writing to the Underwriter by the Issuer Trustee or a
Macquarie Party.
(d) Each Underwriter, severally and not jointly, agrees to: (i)
provide written advice to the Issuer Trustee and the Manager
within 40 days of the issue of the Class A Notes specifying
that it has complied with section 16(b); and (ii) cooperate
with reasonable requests from the Issuer Trustee for
information for the purposes of assisting the Issuer Trustee
to demonstrate that the public offer test under section 128F
of the Australian Tax Act has been satisfied in respect of the
Class A Notes; provided that no Underwriter shall be obliged
to disclose any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or
directive.
24
(e) Each Underwriter (severally and not jointly) agrees that:
(i) it has not offered or sold and, prior to the expiry
of the period of six months from the Closing Date,
will not offer or sell any Class A notes to persons
in the United Kingdom except to persons whose
ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as
principal or agent) for the purposes of their
businesses or who it is reasonable to expect will
acquire, hold, manage or dispose of investments (as
principal or agent) for the purposes of their
businesses, or otherwise in circumstances that have
not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995, as
amended;
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Xxx
0000 with respect to anything done by it in relation
to the Class A notes in, from or otherwise involving
the United Kingdom;
(iii) it is a person of a kind described in Articles 19 or
49 of the Financial Services and Markets Xxx 0000
(Financial Promotion) Order 2001, as amended; and
(iv) it has only communicated or caused to be
communicated, and will only communicate or cause to
be communicated, in the United Kingdom any document
received by it in connection with the issue of the
Class A notes to a person who is of a kind described
in Articles 19 or 49 of the Financial Services and
Markets Xxx 0000 (Financial Promotion) Order 2001, as
amended, or who is a person to whom such document may
otherwise lawfully be communicated.
(f) Each Underwriter, severally and not jointly, acknowledges that
no action has been taken to permit an offering of the Class A
Notes in any jurisdiction outside the United States where any
action would be required to be taken for that purpose. Each
Underwriter will comply with all applicable securities laws
and regulations in each jurisdiction in which it purchases,
offer, sells or delivers Class A Notes or has in its
possession or distributes the Prospectus or any other offering
material, in all cases at its own expense.
17. Certain Matters Relating to the Issuer Trustee.
The Issuer Trustee enters into this Agreement only in its capacity as trustee of
the Trust and in no other capacity. A liability arising under or in connection
with this Agreement is limited to and can be enforced against the Issuer Trustee
only to the extent to which it can be satisfied out of assets of the Trust out
of which the Issuer Trustee is actually indemnified for such liability. This
limitation of the Issuer Trustee's liability described in this Section applies
despite any other provision of this Agreement to the contrary and extends to all
liabilities and obligations of the Issuer Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related to
this Agreement.
25
(a) The parties other than the Issuer Trustee may not xxx the
Issuer Trustee in respect of liabilities incurred by the
Issuer Trustee acting in its capacity as Issuer Trustee of the
Trust in any capacity other than as trustee of the Trust,
including seeking the appointment of a receiver (except in
relation to the assets of the Trust) or a liquidator, an
administrator or any other similar person to the Issuer
Trustee or prove in any liquidation, administration or
arrangements of or affecting the Issuer Trustee (except in
relation to the assets of the Trust).
(b) The provisions of this Section 17 shall not apply to any
obligation or liability of the Issuer Trustee to the extent
that it is not satisfied because under the Trust Deed, this
Agreement or any other Basic Document or by operation of law
there is a reduction in the extent of the Issuer Trustee's
indemnification or exoneration out of the assets of the Trust
as a result of the Issuer Trustee's fraud, negligence or
willful default.
(c) It is acknowledged that the Relevant Parties (as defined in
the Note Conditions) are responsible under the Basic Documents
for performing a variety of obligations relating to the Trust.
No act or omission of the Issuer Trustee (including any
related failure to satisfy its obligations under the Basic
Documents) will be considered fraudulent, negligent or a
willful default for the purpose of this Agreement to the
extent to which the act or omission was caused or contributed
to by any failure by any Relevant Party or any other person
who provides services in respect of the Trust to fulfill its
obligations relating to the Trust or by any other act or
omission of a Relevant Party or any other such person
regardless of whether the act or omission is purported to be
on behalf of the Issuer Trustee.
(d) No attorney, agent, receiver or receiver and manager appointed
in accordance with this Agreement has authority to act on
behalf of the Issuer Trustee in a way that exposes the Issuer
Trustee to any liability in excess of that contemplated in
this Section 17, and no act or omission of any such person
will be considered the Issuer Trustee's fraud, negligence or
willful default.
(e) The Issuer Trustee is not obligated to do anything or refrain
from doing anything under or in connection with this Agreement
(including incur a liability) unless the Issuer Trustee's
liability is limited in the same manner as set out in this
Section 17.
18. Successors.
This Agreement shall inure to the benefit of and be binding upon the Macquarie
Parties, the Issuer Trustee, the Underwriters, each affiliate of any Underwriter
which assists such Underwriter in the distribution of the Class A Notes, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Class A Notes from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
26
19. Actions by Representative; Notices.
Any action by the Underwriters hereunder may be taken by the Representative on
behalf of the Underwriters, and any such action taken by the Representative
shall be binding upon and enforceable against the Underwriters. All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to Deutsche Bank
Securities Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile: (212)
469-7120; Attention: Xxxx Xxxxxxxx, Director. Notices to the Manager shall be
given to it at Macquarie Securitisation Limited, Level 23, 00 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, Facsimile: x00 0 0000-0000, Attention:
The Treasurer; to the Issuer Trustee shall be given to it at Perpetual Trustees
Australia Limited, Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, XXX 0000, Facsimile:
x00 0 0000 0000, Attention: Manager Securitisation; and to Macquarie shall be
given to it x/x Xxxxxxxxx Xxxxxxxxxxxxxx Xxxxxxx, Xxxxx 00, 00 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, Facsimile: x00 0 0000-0000, Attention:
The Treasurer.
20. Counterparts: Applicable Law.
This Agreement may be signed in counterparts, each of which shall be an original
and all of which together shall constitute one and the same instrument. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to the conflicts of laws provisions
thereof.
27
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
MACQUARIE SECURITISATION LIMITED
By:
----------------------------
Name:
Title:
PERPETUAL TRUSTEES AUSTRALIA LIMITED
By:
----------------------------
Name:
Title:
MACQUARIE BANK LIMITED
By:
----------------------------
Name:
Title:
28
Accepted: January [__], 2003
DEUTSCHE BANK SECURITIES INC.
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
29
SCHEDULE I
UNDERWRITER PRINCIPAL AMOUNT OF CLASS A NOTES TO BE
PURCHASED
Deutsche Bank Securities Inc........ Class A $[_________]
[_________]......................... Class A $[_________]
[_________]......................... Class A $[_________]
Total............................ $[_________]
30
SCHEDULE II
List of Section 128F(9) Associates of the Issuer Trustee
ACT Nominees Limited
ASX Perpetual Registrars Limited
Australian Trustees Limited
Australian Trustees Pty Limited
Charleville Leasing Ltd
Commonwealth Trustees Pty Limited
Hunter Nominees Pty Ltd
Investor Marketplace Limited
Midway Nominees Pty Ltd
Perpetrust Nominees Pty Ltd
Perpetual Asset Management Ltd
Perpetual Assets Pty Ltd
Perpetual Australia Property Services (WA) Pty Ltd
Perpetual Australia Pty Limited
Perpetual Custodians Ltd
Perpetual Custodians WA Pty Ltd
Perpetual Executors Nominees Ltd
Perpetual Fund Services Limited
Perpetual Investment Management Limited
Perpetual Nominees Limited
Perpetual Property Services Australia Pty Ltd.
Perpetual Service Network Pty Limited
Perpetual Services Pty Limited
Perpetual Superannuation Limited
Perpetual Trust Services Limited
Perpetual Trustee Company (Canberra) Limited)
Perpetual Trustee Company Limited
Perpetual Trustees Nominees Limited
Perpetual Trustees Queensland Ltd
Perpetual Trustees S A Limited
Perpetual Trustees Victoria Limited
Perpetual Trustees W.A. Ltd
PT Limited
Queensland Trustees Pty Limited
Selwest Pty Ltd
Terrace Guardians Ltd
Xxxxxx Xxxxxxxx Finance Pty Limited
Xxxxxx Xxxxxxxx Limited
Xxxxxx Xxxxxxxx Partnership Pty Ltd
SCHEDULE III
List of Section 128F(9) Associates of the Macquarie Parties
A) List of Associates : Companies
Abalflow Trust
Airport Motorway Infrastructure No. 1 Limited
Aldisa Nominees Pty Limited
Aleatory Pty Limited
Asia Resource Capital Limited
AUSFLEET Pty Limited
Australian Hotel Investment Pty Limited
B.E.S.T. Management Pty Limited
Bavian Pty Limited
Bittoorong Pty Limited
BOND STREET AUSTRALIA LIMITED
Airport Motorway Custodians Limited
Bond Street Custodians Limited
Bond Street Lease Management Pty Limited
BOSTON AUSTRALIA LIMITED
Boston Leasing Pty Limited
CAMPUS INTERNATIONAL HOLDINGS PTY LIMITED
Concept Blue Property Pty Limited
(formerly Melbourne City Unilodge Pty Limited)
Volatic Pty Limited
Volbing Pty Limited
CAMPUS INTERNATIONAL HOLDINGS TRUST
Berkeley Holdings Unit Trust
Berkeley Unit Trust
Canterbury Court Holdings Trust
Canterbury Court Unit Trust
Xxxxxxxxx Holdings Unit Trust
Xxxxxxxxx Unit Trust
Xxxxx Hospital Group Pty Limited
(formerly Victoria Link Pty Ltd)
Cazinon Pty Limited
Cemasta Pty Limited
Cenford Pty Limited
CHANNAR INVESTMENT NOMINEE PTY LIMITED
Pandrew Pty Limited
CityUtilities Pty Limited (formerly Macquarie Utilities (No.1) Pty Limited)
City Link Management Limited
Colanera Pty Limited
Colmoro Pty Limited
Coriolis Water
Services (Australia) Pty Limited
Crownlease Pty Limited
D-Auction Internet Pty Limited
Xxxxxx Pty Limited
EDIVISION INVESTMENTS PTY LIMITED
Xxxxxxxxx.xxx Pty Limited
Financial Enrichment Pty Limited
Elytron Pty Limited
XXXXXX PTY LIMITED
Tryptic Pty Limited
GALANTHUS AUSTRALIA PTY LIMITED
Xxxxxxx Pty Limited
Galanthus Leasing Pty Limited
Gatesun Pty Limited
Gemata Pty Limited
Gondor Pty Limited
Hafling Pty Limited
Hills Motorway Management Limited
Xxxxxx No.1 Pty Limited
Horizon Energy Investment Management Limited
Indemco Pty Limited
Infrastructure Investment No. 2 Limited [incorp. in Cayman Islands]
Infrastructure Investments No. 1 Pty Limited
Kallerad Pty Limited
Kepile Pty Limited
Liana Pty Limited
MACFLEET Pty Limited
Mac Fund One Trust
MAC IT 2000 Pty Limited
Macquarie (1 Xxxxxxxxx Street) Nominees Pty Ltd (formerly Xxxxxx No. 3 Pty
Limited)
Macquarie (Arncliffe) Pty Limited
Macquarie (Asia) Pte Limited [incorp. in Singapore]
MACQUARIE (HK) FINANCIAL SERVICES LIMITED * [INCORP. IN HKG]
The Falcon General Partnership (formed 6 December 2001) [formed in HKG]
MACQUARIE ACCEPTANCES LIMITED
BOND STREET INVESTMENTS PTY LIMITED
CH4 Pty Limited (minority interest 10%)
Macquarie Holdings Trust
Macquarie Investment Trust
Macquarie Thirty-Fourth Aviation Leasing Pty Limited
Macquarie Thirty-Seventh Aviation Leasing Pty Limited
Macquarie Thirty-Third Aviation Leasing Pty Limited
Sabco Australia Limited
Chalce Pty Limited
Xxxxxxxx Pty Limited
Xxxxxxx Pty Limited
GLORIOLE PTY LIMITED
LANROD PTY LIMITED
VALCORA PTY LIMITED
Jevington Investments [incorp. in UK]
Macquarie Nominees ACT Pty Limited
Hillsam Nominees Pty Limited
Idameneo (No. 31) Pty Limited
Macquarie (A.C.T. Property Investments) Pty Limited
(formerly Macquarie Thirteenth Aviation Leasing Pty Limited)
MACQUARIE ASSET MANAGEMENT LIMITED
Coldava Limited
Jubilee Pty Limited
Macquarie Deposits Pty Limited
Macquarie Information Technology Pty Limited
MACQUARIE NZ HOLDINGS LIMITED
MACQUARIE GROUP NEW ZEALAND LIMITED [incorp. in NZ]
MACQUARIE NEW ZEALAND LIMITED [incorp. in NZ]
MACQUARIE EQUITIES NEW ZEALAND LIMITED [incorp. In NZ]
Macquarie Equities Custodians Limited [incorp. in NZ]
Macquarie Equities Nominees Limited [incorp. in NZ]
Macquarie Private Portfolio Management (NZ) Pty Limited [incorp.
in NZ]
Macquarie Infrastructure (NZ) Limited [incorp. in NZ]
(formerly Macquarie Property (NZ) Limited)
New Zealand Cash Management Trust Limited [incorp. in NZ]
Macquarie PH (UK) Limited [incorp. In UK]
Parsees Pty Limited
Telbane Pty Limited
Totara Pty Limited
Tywyn Pty Limited
UTOPIA PTY LIMITED (MINORITY INTEREST 43%)
CORPORATE CAPITAL EQUIPMENT FINANCING PTY LIMITED
Decally Pty Limited
Fragola Pty Limited
Mendlesham Corporation Pty Limited
Naysin Pty Limited
Old Brampton Corporation Pty Limited
Ophidian Pty Limited
Ornate Pty Limited
Poltava Pty Limited
PRAEN PTY LIMITED
Grosvenor Office Equipment Hire Pty Limited
Reconnoitre Pty Limited
Residium Pty Limited
Resinal Pty Limited
Second Resinal Pty Limited
Dalou Pty Limited
Fortescue Gardens Pty Limited
Rovenda Pty Limited
Rovny Pty Limited
Samspin Limited
Shadoof Pty Limited
Macquarie Asset Services (Qld) Pty Limited
Macquarie Asset Services (Vic) Pty Limited
MACQUARIE AUSTRALIA PTY LIMITED
Macquarie Investment (Hong Kong) Limited [incorp. in HKG]
Sucette Pty Limited
Macquarie Bank Superannuation (No. 2) Pty Limited
Macquarie Bank Superannuation Pty Limited
MACQUARIE DIRECT INVESTMENT LIMITED
Macquarie Direct Investment A Limited
Macquarie Direct Investment B Limited
Macquarie First Aviation Leasing Pty Limited
Macquarie Funds Management Limited
MACQUARIE INVESTMENT MANAGEMENT LIMITED
Macquarie-IMM Investment Management Limited [incorp. in Korea]
(minority interest 35%)
Macquarie Lease Management Pty Limited
Macquarie Lease Nominees Pty Limited
MACQUARIE LEASING QLD PTY LIMITED
Gabija Pty Limited
Riverut Pty Limited
Macquarie Leasing Vic. Pty Limited
MBL River Links Pty Limited
(formerly Macquarie Mortgage Management Pty Limited)
Macquarie Office Management Limited
Macquarie Property Services Pty Limited
Macquarie Risk Management Pty Limited
Macquarie Thirty-Ninth Aviation Leasing Pty Limited
Macquarie Twelfth Aviation Leasing Pty Limited
Macquarie Twentieth Aviation Leasing Pty Limited
Macquarie Twenty-Eighth Aviation Leasing Pty Limited
Macquarie Twenty-Seventh Aviation Leasing Pty Limited
Macquarie Twenty-Third Aviation Leasing Pty Limited
MBL Realty Investment Management Pty Limited
Memnon Pty Limited
Olary Pty Limited
Oxton Pty Limited
RISK AVERSE MONEY MANAGERS PTY LIMITED
Australian Index Money Managers Limited
Macquarie Admin Services Pty Limited
Macquarie Airports Management Limited
(formerly Bulwer Island Cogen Limited)
Macquarie Alliances Pty Limited
MACQUARIE ASIA HOLDINGS PTY LIMITED
MACQUARIE INDONESIA HOLDINGS PTY LIMITED
PT Macquarie Konsultan Indonesia [incorp. in Indonesia]
Macquarie Asia Limited [incorp. in HKG]
Macquarie Asia Property Advisors Limited [incorp. in Bermuda]
Macquarie Asiawide Management Limited [incorp. in HKG]
Macquarie Asset Services (ACT) Pty Limited
Macquarie Asset Services (WA) Pty Limited
Macquarie Asset Services Limited
MACQUARIE AUSTRALIA (HK) LIMITED [incorp. in HK]
Macquarie Pacific Management Limited [incorp. in Xxxx Islands]
Macquarie Australia Corporate Finance Limited
Macquarie Australia Infrastructure Pty Limited
Macquarie Australia Lease Management Pty Limited
Macquarie Australia Management Services Pty Limited
Macquarie Australia Securities Limited
Macquarie Australia Technology Pty Limited
Macquarie Business Broking Services Pty Limited
Macquarie Capital Markets Nominees Pty Limited
MACQUARIE COMMERCIAL LEASING VIC. PTY LIMITED
Softwood View Pty Limited
MACQUARIE COMMUNICATIONS INFRASTRUCTURE LIMITED
(formerly Metropolitan Transit Limited)
Broadcast Australia Finance Pty Ltd (incorporated 6 May 2002)
MACQUARIE COMMUNICATIONS INFRASTRUCTURE HOLDINGS PTY LIMITED
(formerly MCIL Holdings Pty Limited)
NTL BELGIUM SPRL (acquired 2 April 2002)
Broadcast Australia Holdings (Vic) Pty Limited (incorporated 2
July 2002) (formerly Macquarie Utilities (No. 2) Pty Limited)
Broadcast Australia Holdings Pty Limited (consolidated) (acquired 2
April 2002) (formerly ntl Australia Holdings Pty Limited)
Macquarie Communications Infrastructure Management Limited
(formerly South Coast Motorway Limited)
Macquarie Computer Leasing Pty Limited
Macquarie Concept Blue Pty Limited
Macquarie Coolibah Management Limited
Macquarie Corporate Finance (USA) Inc. [incorp. in USA]
MACQUARIE CORPORATE FINANCE HOLDINGS PTY LIMITED
(formerly Macquarie Twenty-Ninth Aviation Leasing Pty Limited)
MACQUARIE CORPORATE FINANCE LIMITED
Airport Motorway Infrastructure No. 3 Limited
Airport Motorway Infrastructure No. 4 Limited
Macquarie (Hong Kong) Limited [incorp. in HKG]
MACQUARIE (JAPAN) LIMITED * [incorp. in Japan]
JPF Investment Ltd (incorporated 4 June 2002)
MJL Ace Limited * [incorp. in Japan]
MJL Bay Limited * [incorp. in Japan]
MJL Cookie Limited (incorp. in Japan)
Macquarie (Malaysia) Sdn Bhd [incorp. in Malaysia]
Macquarie Africa (Proprietary) Limited [incorp. in South Africa]
Macquarie Asset Finance Limited
Macquarie Aviation (No. 1) Limited
Macquarie Corporate Finance International Limited
Macquarie France Holdings Pty Limited
Macquarie Infrastructure Limited
Macquarie Infrastructure No. 2 Limited
Macquarie Infrastructure No. 4 Pty Limited
(formerly Macquarie Infrastructure No. 4 Limited)
MACQUARIE NORTH AMERICA LIMITED * [INCORP. IN CANADA]
Macquarie Canadian Infrastructure Management Limited [incorp. in Canada]
Macquarie North America Securities Limited [incorp. in Canada]
Macquarie Transmission Alberta Limited [incorp. in Canada]
(formerly 941534 Alberta Limited)
Macquarie Securitisation (OBU) Pty Limited
(formerly Macquarie Securitisation (OBU) Limited, Bulwer Island Cogen
Holdings Limited)
Tadina Pty Limited
Tegny Pty Limited
Tenata Pty Limited
Macquarie CountryWide Management Limited
Macquarie Development Capital II Pty Limited
Macquarie Development Capital Pty Limited
Macquarie Development Direction Pty Limited
MACQUARIE DIRECT PROPERTY MANAGEMENT LIMITED
Principle Holdings No. 2 Pty Limited
Macquarie Distribution Pty Limited
MACQUARIE DIVERSIFIED INVESTMENTS NO 2 PTY LTD
Macquarie Investments No. 2 Limited Partnership
MACQUARIE DIVERSIFIED INVESTMENTS NO 3 PTY LTD
Macquarie Investments No. 3 Limited Partnership
MACQUARIE DIVERSIFIED PORTFOLIO INVESTMENTS PTY LIMITED
MACQUARIE DIVERSIFIED INVESTMENTS LIMITED PARTNERSHIP
Macquarie Diversified Investment Services Pty Limited
Macquarie Domestic Hedge Fund Management Limited
Macquarie Equipment Finance Pty Limited
Macquarie Equities (Asia) Limited [incorp. in HKG]
MACQUARIE EQUITIES (AUSTRALIA) LIMITED
Belike Nominees Pty Limited
Buttonwood Nominees Pty Limited
Elise Nominees Pty Limited
Macquarie Securities (Asia) Pty Limited
Nanway Nominees Pty Limited
Rema Nominees Pty Limited
Woodross Nominees Pty Limited
MACQUARIE EQUITIES (US) HOLDINGS PTY LIMITED
Macquarie Equities Brasil Limitada [incorp. in Brazil]
MACQUARIE HOLDINGS (USA) INC. [incorp. in USA]
Macquarie Americas Corp [incorp. in USA]
Macquarie Brasil Limitada [incorp. in Brazil]
Macquarie Electronics USA Inc.
MACQUARIE REAL ESTATE INC. [incorp. in USA]
(formerly Macquarie (Delaware) Inc.)
MACQUARIE MORTGAGES USA INC. [incorp. in USA]
Macquarie Mortgages Financing Inc. [incorp. in USA]
Macquarie Real Estate Finance Inc. [incorp. in USA]
Macquarie Equities (USA) Inc. [incorp. in USA]
MACQUARIE INC. [incorp. in USA]
Macquarie Futures Inc. [incorp. in USA]
Macquarie Real Estate Finance Consulting Inc. [incorp. in USA]
MACQUARIE EQUITIES LIMITED
Dexin Nominees Pty Limited
Equitas Nominees Pty Limited
Idameneo (No. 79) Nominees Pty Limited
Uphill Nominees Pty Limited
Macquarie Equity Capital Markets Limited
MACQUARIE EUROPEAN HOLDINGS PTY LIMITED
Macquarie Equities (UK) Limited [incorp. in UK]
Macquarie Filmed Investments Pty Limited
MACQUARIE FINANCE LIMITED
Macquarie Syndication (No. 4) Pty Limited
Macquarie Finance (NZ) Limited [incorp. in NZ]
Macquarie Financial Products Management Limited
Macquarie Fleet Finance Pty Limited
Macquarie Fleet Leasing Pty Limited
Macquarie Fourteenth Aviation Leasing Pty Limited
Macquarie Funds Management Hong Kong Limited [incorp. In HKG]
MACQUARIE HEALTH ACQUISITIONS PTY LTD (INCORPORATED 10 MAY 2002)
Macquarie Health Funding Pty Ltd (incorporated 10 May 2002)
Macquarie Health Holdings Pty Ltd (incorporated 10 May 2002)
Macquarie IB Limited
Macquarie Infrastructure Debt Management Limited
Macquarie Infrastructure Funds Management Limited
Macquarie Infrastructure Investment Management (UK) Limited [incorp. in UK]
MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED
AMT Management Limited
Macquarie International Capital Advisors Pty Limited
(formerly Koorileah Pty Limited)
Macquarie International Capital Markets Limited [incorp. in HKG]
MACQUARIE INTERNATIONAL LIMITED [incorp. in UK]
Macquarie Finance (UK) Limited [incorp. in UK]
Macquarie International Property Services Pty Limited
MACQUARIE INTERNATIONALE HOLDINGS LIMITED [INCORP. IN UK]
(formerly Macquarie Corporate Finance (UK) Limited)
MACQUARIE CAPITAL LIMITED [incorp. in United Kingdom]
Macquarie Capital GmbH [incorp. in Austria]
Macquarie Capital Korea Co Limited
(formerly Macquarie IT Korea Co Limited)
Macquarie Specialised Infrastructure Management Co., Limited (incorporated
17 October 2002)
Macquarie Investment Services Limited
Macquarie Korea Co. Limited [incorp. in Korea]
MACQUARIE LEASING NSW PTY LIMITED
Acuba Pty Limited
Macquarie Leasing Pty Limited
Macquarie Leasing (NZ) Limited [incorp. in NZ]
Macquarie Leasing (UK) Limited [incorp. in UK]
Macquarie Leisure Management Limited
Macquarie Life Limited
Macquarie Marinas Management Limited
(formerly Macquarie Implemented Property Service Limited)
Macquarie Mortgages Pty Limited
Macquarie N.T. Leasing Pty Limited
Macquarie Options Pty Limited
Macquarie Photonics Pty Limited
Macquarie Portfolio Services Pty Limited
Macquarie PRISM Pty Limited
Macquarie Private Portfolio Management Limited
Macquarie Private Wealth Management Pty Limited
Macquarie Project Finance Pty Limited
Macquarie Property Development Finance Limited
MACQUARIE PROPERTY INTERNATIONAL PTY LIMITED
MACQUARIE PROPERTY CHINA PTY LIMITED
Macquarie (Tianjin) Property Services Co. Limited [incorp. in China]
Sedulous Investments Pty Limited
Macquarie Property Finance Limited [incorp. in NZ]
Macquarie Property (OBU) Pty Limited
Macquarie Real Estate Asia Limited
(formerly Macquarie Property Management (International) Limited)
Macquarie R&D No. 1 Pty Limited
Macquarie R&D No. 7 Pty Limited
Macquarie Realty Services Pty Limited
MACQUARIE REGIONAL SHAREHOLDINGS (UK) LIMITED
Ropemaker Street Investments Limited
Macquarie Risk Management Advisory Pty Limited
MACQUARIE SCIENCE HOLDINGS LIMITED
Ensenaba Pty Limited
Garachine Pty Limited
Sucrafeed No. 1 Pty Limited
Sucrafeed No. 2 Pty Limited
MACQUARIE SECURITIES LIMITED [incorp. in NZ]
MACQUARIE CAPITAL (NZ) LIMITED
(formerly Ojai Holdings Limited)
Macquarie I.T. (NZ) Limited [incorp. in NZ]
Worldwide Parking Group Limited (incorp. 27 March 2002) [incorp. in NZ]
Macquarie Securities Management Pty Limited
MACQUARIE SECURITISATION (HONG KONG) LIMITED [incorp. in HKG]
Macquarie Securitisation Limited
Macquarie Services (Hong Kong) Limited [incorp. in HKG]
Macquarie Specialised Asset Management 2 Limited
Macquarie Specialised Asset Management Limited
Macquarie Strata Services Pty Limited
Macquarie Structured Equities Pty Limited
Macquarie Structured Products Australia Limited
(formerly MAST Management Limited)
Macquarie Syndicate Management Pty Limited
Macquarie Syndicate Nominee Pty Limited
Macquarie Syndication (No. 7) Pty Limited
Macquarie Syndication (No. 12) Pty Limited
Macquarie Syndication (No. 22) Pty Limited
MACQUARIE TECHNOLOGY GROUP PTY LIMITED
MACQUARIE TECHNOLOGIES (MALAYSIA) SDN BHD [incorp. in Malaysia]
Macquarie IT Sdn Bhd [incorp. in Malaysia]
Macquarie Technology Investments Limited
Macquarie Technology Ventures Nominee Pty Limited
Macquarie Technology Ventures Pty Limited
MACQUARIE TELECOMMUNICATIONS HOLDINGS PTY LIMITED (incorporated 28 May 2002)
NTL TELECOMMUNICATIONS HOLDINGS PTY LIMITED (acquired 2 April 2002)
ntl Telecommunications Pty Limited (acquired 2 April 2002)
Macquarie Tourism & Leisure Pty Limited
Macquarie Treasury Management Limited [incorp. in Bermuda]
Macquarie Treasury Nominees Pty Limited
Macquarie Treasury Private Trustee Company Limited [incorp. in Bermuda]
Macquarie Vue Nominee Pty Limited
Macquarie-ProLogis Mexico Trust Inc [incorp. in USA]
Macquarie-ProLogis US Trust Inc [incorp. in USA]
MAIL HOLDINGS LIMITED
CASL Financial Services Pty Limited
MACQUARIE AUSTRALIA INTERNATIONAL LIMITED
Develop Co Pty Limited
(formerly CASL Nominees Pty Limited)
Macquarie Risk Advisory Services Limited
Margin Lending Nominees Pty Limited
MCF Leasing Pty Limited
MECML Nominees Pty Limited
Melbourne Airlink Pty Limited
Merit Management No. 1 Pty Limited
Merit No. 1 Pty Limited
Oarale Pty Limited
PACIFIC RIM OPERATIONS LIMITED
Macquarie ProLogis Management Limited (incorporated 15 April 2002)
PARAY PTY LIMITED
Macquarie Syndication (No. 23) Pty Limited
Placate Pty Limited
PUMA Management Pty Limited
Q Rent Pty Limited
Residco Pty Limited
Royal Parade Apartments Pty Limited
Rugarno Pty Limited
Sanlucar Pty Limited
Santorini One Pty Limited
SECURE Australia Management Pty Limited
Secure Australia II Limited
Southern Cross Australian Airports Pty Limited
SPAL Limited
Structured Prime Asset Receivables (SPARS) No.1 Pty Limited
Subscriber Television Asset Rentals Pty Limited
SYNDICATED ASSET MANAGEMENT PTY LIMITED
RP Developments Pty Limited
Talamba Pty Limited
Taralie Pty Limited
Tegensee Pty Limited
TERRITORY AIRPORT LIMITED
Xxxxx Airport Limited
Xxxxxxx Airport Limited
Territory Airport Management Limited
The Victorian Rolling Stock Leasing Company Pty Limited
(formerly The Victorian Rolling Stock Leasing Company Limited)
TranSA Pty Limited
TranSA Sevices Pty Limited
URBAN PACIFIC LIMITED
Alloca (No. 4) Pty Limited
UPL River Links Investments Pty Ltd
(formerly Xxxxxx No. 2 Pty Limited)
Kensington Banks Pty Limited
Mont Park Development Company Pty Limited
SMR Developments Pty Limited
UPL Developments Pty Limited
UPL (SA) Pty Limited
UPL (WA) Pty Limited
Urban Pacific Springthorpe Investment Pty Limited
Vue Apartments Pty Limited
Vanne Pty Limited
VicWire Partnership Pty Limited
Wealth Nominees Pty Limited
Wuxta Pty Limited
Zoffanies Pty Limited
B) List of Associates : Joint Ventures / Partnerships
000 Xxxxxxx Xxxxxx Trust
AmInvestment Management Sdn Bhd
AmInvestment Services Bhd
Artsim Pty Limited
August Trading Limited
Austian (Tianjin) Real Estate Development Co. Limited
Bondi Beach Railway Limited
China Housing Investment Fund No. 6
Develop Co Pty Limited
First China Property Group Limited
Four Corners Capital Management LLC
Green Square Joint Venture
Helmsman Funds Management Limited
Helmsman Funds Management Pty Limited
Helmsman Nominees Pty Limited
ICA Property Development Fund No. 1 Pty Limited
ICA Property Development Fund No. 2 Pty Limited
Innofin Pty Limited
International Retail Limited
Macquarie Capital Partners LLC
Macquarie CCY Feeder Fund
Macquarie FX Feeder Fund
Macquarie FX Feeder Fund No. 2
Macquarie Xxxxxxx Management Limited
Macquarie Offshore Feeder Fund
Macquarie Offshore Feeder Fund Xx. 0
Xxxxxxxxx Xxxxxxxx Xxxxxx Xxxx Xx. 0
Macquarie Pro-Logis Management LLC
Macquarie Real Estate Equity Fund No. 1 Pty Limited
Macquarie Securitisation Shanghai Co. Limited
Macquarie-IMM Asset Management Co Limited
Medallist Developments Pty Limited
Medallist Golf Developments Trust
Medallist Holdings Inc.
Mining Equipment Company Pty Limited MP Management LLC MPI Private Trustee
Limited OMNI Investments Pty Limited River Links Development Pty Limited
SecuriClear Limited Shinhan Macquarie Financial Advisory Co Limited
Southern African Infrastructure Fund Managers (Proprietary) Limited
Tasman Economics Pty Limited
The Cannery Unit Trust
The Financial Arena Pty Limited
Tianjin Macquarie Property Development Management Company Limited
Vytel Spectrum Pty Limited
TABLE OF CONTENTS
1. Purchase and Sale...................................................................................2
2. Offering............................................................................................3
3. Delivery and Payment................................................................................3
4. Representations and Warranties of the Macquarie Parties and the Issuer Trustee......................3
5. Covenants and Agreements...........................................................................11
6. Conditions to the Obligations of the Underwriters..................................................14
7. Indemnification and Contribution...................................................................18
8. Termination........................................................................................22
9. Effectiveness of Agreement; Default of Underwriters................................................22
10. Expenses upon Termination..........................................................................23
11. Fee Letter.........................................................................................23
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process.........................23
13. Foreign Taxes......................................................................................24
14. Waiver of Immunities...............................................................................24
15. Judgment Currency..................................................................................24
16. Selling Restrictions...............................................................................25
17. Certain Matters Relating to the Issuer Trustee.....................................................26
18. Successors.........................................................................................27
19. Actions by Representative; Notices.................................................................27
20. Counterparts: Applicable Law.......................................................................28
Schedule I
Schedule II
Schedule III
