EXHIBIT D
EXECUTION COPY
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QUEENSLAND TREASURY CORPORATION
U.S. MEDIUM-TERM NOTE FACILITY
US$500,000,000
Unconditionally Guaranteed by the Treasurer
on behalf of
the Government of Queensland
AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
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Dated as of November 13, 2003
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Table of Contents
SECTION 1. Representations and Warranties of the Corporation and the Guarantor.....................2
SECTION 2. Solicitations as Agent; Purchases as Principal..........................................5
SECTION 3. Covenants of the Corporation and the Guarantor..........................................7
SECTION 4. Payment of Expenses....................................................................11
SECTION 5. Conditions of Obligation...............................................................11
SECTION 6. Additional Covenants of the Corporation................................................14
SECTION 7. Indemnification........................................................................16
SECTION 8. Contribution...........................................................................18
SECTION 9. Status of the Dealers..................................................................19
SECTION 10. Representations, Warranties and Agreements to Survive Delivery.........................19
SECTION 11. Termination............................................................................19
SECTION 12. Notices................................................................................20
SECTION 13. Parties................................................................................20
SECTION 14. Sales of Notes Denominated in a Currency other than U.S. Dollars or of Indexed Notes...20
SECTION 15. Governing Law..........................................................................21
SECTION 16. Consent to Service; Jurisdiction.......................................................21
EXHIBIT A - Form of Dealer Accession Letter..........................................................A-1
EXHIBIT B - Form of Terms Agreement..................................................................B-1
EXHIBIT C - Selling Restrictions.....................................................................C-1
EXHIBIT D - Administrative Procedures................................................................D-1
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Deutsche Bank Securities Inc.
ABN AMRO Incorporated,
Citigroup Global Markets Inc.,
Credit Suisse First Boston Corporation,
RBC Dominion Securities Corporation,
c/o Deutsche Bank Securities Inc.,
00 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000.
Dear Sirs:
Queensland Treasury Corporation (the "Corporation"), a
corporation sole constituted under the laws of the State of Queensland,
Commonwealth of Australia, and the Treasurer on behalf of the Government of
Queensland (the "Guarantor") confirm their agreement with each of you
(hereinafter referred to individually as a "Dealer" and collectively as the
"Dealers") with respect to the issue and sale by the Corporation of its U.S.
Medium-Term Notes, Series A, registered under the registration statement
referred to in Section 1A(a) (the "Notes"), guaranteed pursuant to one or more
Deeds of Guarantee given under Section 33 of the Queensland Treasury Corporation
Act 1988 (the "Act") by the Guarantor (each reference in this Agreement to the
guarantee of the Notes by the Guarantor refers collectively to all such Deeds of
Guarantee). Securities may be sold pursuant to Section 2A of this Agreement or
as contemplated by Section 2B of this Agreement in an aggregate amount not to
exceed the amount of Registered Securities (as defined in Section 1A(a) hereof)
registered pursuant to such registration statement reduced by an aggregate
amount of any of the Registered Securities sold otherwise than pursuant to
Section 2A or Section 2B of this Agreement. The Notes are to be issued under an
amended and restated fiscal agency agreement, dated as of the date hereof (the
"Amended and Restated Fiscal Agency Agreement"), between the Corporation and
Deutsche Bank Trust Company Americas, as Fiscal Agent. The Notes shall have the
maturity dates, interest rates, if any, redemption provisions and other terms
set forth in the Prospectus referred to below as it may be amended or
supplemented from time to time.
Subject to the terms and conditions stated herein, the
Corporation hereby appoints each of you as an agent of the Corporation for the
purpose of soliciting purchases of the Notes from the
Corporation by others. The Corporation shall have the right to appoint
additional agents for the purpose of soliciting purchases of the Notes from the
Corporation by others or purchasing Notes as principal provided that any such
additional agent agrees to comply with the terms and conditions of this
Agreement and shall execute an agreement with the Corporation substantially in
the Form of Exhibit A hereto. Any such appointment may be limited in duration or
restricted to a particular trade or trades, in the Corporation's sole
discretion. Any additional agent so appointed shall be deemed to be a Dealer for
all purposes of this Agreement.
SECTION 1. Representations and Warranties of the Corporation and the Guarantor
A. The Corporation represents and warrants to each Dealer as of the
date hereof, as of the Closing Time (as defined in Section 2F) and each time the
Registration Statement or the Prospectus is amended or supplemented and
represents and warrants to any Dealer which has purchased or solicited the
purchase of Notes as of the times specified in Section 6A(a) hereof (in each
case, the "Representation Date"), as follows:
(a) The Corporation and the Guarantor have filed with the
United States Securities and Exchange Commission (the "Commission")
registration statement No. 333-[ ] relating to the debt securities of
the Corporation and the guarantee thereof by the Guarantor, including
the Notes and the Guarantee, which has become effective under the
Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement, as amended as of the date of this Agreement, meets the
requirements set forth in Release No. 33-6424 (the "Release") and
Schedule B under the 1933 Act and complies in all other material
respects with the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"), the Release and
Schedule B. Registration Statement No. 333-[ ] and any other
registration statement subsequently filed with the Commission with
respect to the debt securities of the Corporation which contains a
prospectus supplement relating to the Notes, in each case as amended and
including the exhibits thereto, are hereinafter referred to as the
"Registration Statement". As is permitted by Rule 429 under the Act, the
Prospectus contained in any subsequent registration statement may
include the debt securities registered thereby and certain debt
securities previously registered by the Corporation. Any debt securities
of the Corporation registered under the Registration Statement are
collectively referred to in this Agreement as the "Registered
Securities". In connection with the sale of the Notes, the Corporation
and the Guarantor have filed and propose in the future to file with the
Commission from time to time pursuant to Rule 424 under the 1933 Act
supplements to the form of prospectus included in the Registration
Statement, which describe certain terms of the Notes and the plan of
distribution thereof, and prior to any such future filing the
Corporation will advise the Dealers of all further information
(financial and other) with respect to the Corporation and the Guarantor
to be set forth therein. The most recent basic prospectus included in
the Registration Statement, as supplemented with respect to the terms of
the Notes and the plan of distribution thereof, is hereinafter referred
to as the "Prospectus". Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include any
documents filed by the Corporation and the Guarantor under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations", and, together with the 1933 Act Regulations, the
"Regulations") and incorporated by reference therein upon reliance on
interpretative letters from the Division of Corporate Finance of
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the Commission, dated May 28, 1987 and November 30, 1987; and any
reference herein to "amend", "amendment" or "supplement" with respect to
the Registration Statement or the Prospectus shall be deemed to refer to
and include the filing by the Corporation and the Guarantor of any
document incorporated therein by reference.
(b) The Registration Statement and the Prospectus, at the
times the Registration Statement became effective, complied, and as of
each applicable Representation Date will comply, in all material
respects with the requirements of the 1933 Act, the 1934 Act and the
Regulations. The Registration Statement, at the times the Registration
Statement became effective did not, and as of the applicable
Representation Date each part of the Registration Statement will not,
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. The Prospectus, at the times the
Registration Statement became effective did not, and as of the
applicable Representation Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to
the Corporation in writing by any Dealer expressly for use in the
Registration Statement or Prospectus.
(c) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Corporation as at the dates indicated and the results of its operations
for the periods specified.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby (i) there has been no
material adverse change in the condition, financial or otherwise, of the
Corporation, or in the earnings, business affairs or business prospects
of the Corporation, whether or not arising in the ordinary course of
business and (ii) there have been no material transactions entered into
by the Corporation other than those in the ordinary course of business.
(e) The Notes have been duly authorized for issuance and
sale pursuant to this Agreement (or will have been so authorized prior
to each issuance of Notes) and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and of the Amended and
Restated Fiscal Agency Agreement against payment of the consideration
therefor in accordance with this Agreement, the Notes will be valid and
legally binding obligations of the Corporation enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles, and will, by virtue of the guarantee to be given by
the Guarantor pursuant to Section 33 of the Act, be guaranteed as to
payment of all amounts owing thereon by the Guarantor, and will be
entitled to the benefits of the Amended and Restated Fiscal Agency
Agreement in the form heretofore delivered to the Dealers; and the Notes
and the Amended and Restated Fiscal Agency Agreement conform in all
material respects to all statements relating thereto contained in the
Prospectus.
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(f) The Corporation has full power and authority to enter
into this Agreement and the Amended and Restated Fiscal Agency Agreement
and to perform and comply with the terms and provisions of the Notes,
this Agreement, and the Amended and Restated Fiscal Agency Agreement;
and the execution and delivery of this Agreement, and the Amended and
Restated Fiscal Agency Agreement, the consummation of the transactions
herein and therein contemplated and the compliance with the terms and
provisions herein and therein do not and will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, the laws of the State of Queensland or the Commonwealth
of Australia or any agreement or instrument to which the Corporation is
a party or by which it is bound.
(g) Subject to compliance with the requirements of Section
128F of the Income Tax Assessment Act 1936 (as amended) of the
Commonwealth of Australia, neither the Corporation nor the Guarantor is
required by any law or regulation or by any relevant taxing authority in
the jurisdiction in which the Corporation or the Guarantor is
constituted or is resident for tax purposes to make any deduction or
withholding from any payment under the Notes or the Guarantee for or on
account of any income, registration, transfer or turnover taxes, customs
or other duties or tax of any kind.
B. The Guarantor represents and warrants to each Dealer as of the
date hereof, as of the Closing Time and each time the Registration Statement or
the Prospectus is amended or supplemented and agrees that each acceptance by the
Corporation of an offer for the purchase of a Note shall be deemed to be an
affirmation that the Guarantor's representations and warranties as of the time
of such acceptance and a covenant that such representations and warranties will
be true and correct at the time of delivery of the Notes as though made at and
as of such time, (in each case the "Guarantor Representation Date") as follows:
(a) The Registration Statement, insofar as it expressly
relates to the Guarantor, at the times the Registration Statement became
effective and as of the applicable Guarantor Representation Date, did
not, and will not, 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. The Prospectus,
insofar as it expressly relates to the Guarantor, at the times the
Registration Statement became effective and as of the applicable
Guarantor Representation Date, did not, and will not, contain any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement made in reliance upon and in conformity with information
furnished to the Corporation or the Guarantor in writing by any Dealer
expressly for use in the Registration Statement or Prospectus.
(b) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby (i) there has been no
material adverse change in the financial, economic or political
conditions of the Guarantor, and (ii) the Guarantor continues to
guarantee the due payment of the Notes as to principal and interest
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when the same shall become due and payable whether at maturity or
otherwise.
(c) The guarantee of the Notes by the Guarantor is given
under Section 33 of the Act; the Act is a valid enactment of the State
of Queensland; the guarantee constitutes the valid, binding and
unconditional guarantee of the Guarantor of all amounts that may become
payable by the Corporation on or in respect of each Note in the manner
provided in such Note, including, without limitation, the principal and
any premium, interest, or additional amounts payable in respect of such
Note, when the same shall become due and payable, whether at maturity or
otherwise; and the guarantee of the Guarantor conforms in all material
respects to all statements relating thereto in the Prospectus.
(d) The Guarantor has full power and authority to enter into
this Agreement, to guarantee the Notes and to perform and comply with
the terms and provisions of this Agreement to be performed and complied
with by it; and the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and the compliance
with the terms and provisions herein, as they each relate to the
Guarantor, do not and will not result in a breach of any of the
provisions of the laws of the State of Queensland or the Commonwealth of
Australia or result in a breach of any of the terms or provisions of or
constitute a default under any agreement or instrument to which the
Guarantor is a party or by which it is bound.
C. Any certificate signed by any officer of the Corporation or any
official of the Guarantor and delivered to any Dealer or counsel to the Dealers
in connection with an offering or sale of Notes shall be deemed a representation
and warranty by the Corporation or the Guarantor, as the case may be, to such
Dealer as to the matters covered thereby.
SECTION 2. Solicitations as Agent; Purchases as Principal
A. Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Dealer severally, and not jointly, agrees to use its best efforts,
as agent for the Corporation, to solicit offers to purchase the Notes upon the
terms and conditions set forth in the Prospectus.
So long as this Agreement shall remain in effect with respect to
any Dealer, the Corporation shall not, without consent of each Dealer, sell
Notes other than to or through the Dealers (including any Dealer appointed by
the Corporation pursuant to the second paragraph of this Agreement), provided,
however, that (i) the Corporation reserves the right to solicit offers to
purchase and to sell Notes (other than Yen Notes) directly to purchasers without
the participation of, or payment of a commission to, any Dealer and (ii) subject
to all of the terms and conditions of this Agreement and any agreement
contemplated by Section 2B hereof, the foregoing shall not be construed to
prevent the Corporation from selling at any time any Notes in a firm commitment
underwriting pursuant to an underwriting agreement that does not provide for
continuous offering of such Notes.
Upon request, the Corporation will inform each Dealer of the
remaining amount of Notes which may be sold pursuant to the Registration
Statement. The
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Corporation reserves the right, in its sole discretion, to suspend solicitation
of offers to purchase Notes commencing at any time for any period of time or
permanently. Upon receipt of instructions from the Corporation, each Dealer will
forthwith suspend solicitation of offers to purchase the Notes from the
Corporation until advised by the Corporation that such solicitation may be
resumed.
Each Dealer, in its capacity as agent for the Corporation, is
authorized to solicit offers to purchase the Notes on the terms specified to
such Dealer by the Corporation as provided in the Procedures (as defined in
Section 2E). Each Dealer shall communicate to the Corporation each reasonable
offer to purchase Notes received by it as agent in the manner provided in the
Procedures. Each Dealer shall have the right, in its discretion reasonably
exercised, without notice to the Corporation, to reject in whole or in part any
offer to purchase the Notes received by it, and any such rejection shall not be
deemed a breach of its agreement contained herein.
B. Purchases as Principal. Each Dealer may purchase Notes from the
Corporation as principal. Each sale of Notes to a Dealer as principal shall be
made in accordance with the terms contained herein and, if the Corporation and
such Dealer shall agree, pursuant to a separate agreement providing for the sale
of such Notes to, and the purchase and reoffering thereof by, such Dealer. Each
such separate agreement (which may be an oral agreement) between such Dealer and
the Corporation is herein referred to as a "Terms Agreement". Unless the context
otherwise requires, each reference contained herein to "this Agreement" shall be
deemed to include any applicable Terms Agreement between the Corporation and
such Dealer. Each such Terms Agreement, whether oral or in writing, may address
the information as specified in Exhibit B hereto as well as any other relevant
matters. Such Dealer's commitment to purchase Notes as principal pursuant to any
Terms Agreement or otherwise shall be deemed to have been made on the basis of
the representations and warranties of the Corporation and Guarantor herein
contained and shall be subject to the terms and conditions herein set forth.
Each Terms Agreement may specify the principal amount of Notes to be purchased
by such Dealer pursuant thereto, the price to be paid to the Corporation for
such Notes, the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by purchasers acting together with
such Dealer in the reoffering of the Notes and such other provisions (including
further terms of the Notes) as may be mutually agreed upon. Such Dealer may
utilize a selling or dealer group in connection with the resale of the Notes
purchased. Each Terms Agreement may also specify any requirements with respect
to delivery of officers' certificates, opinions of counsel and comfort letter as
may be agreed to by the parties thereto.
C. Selling Restrictions. In connection with the offering of the
Notes on behalf of the Corporation, each Dealer confirms its awareness of, and
agrees that it will solicit offers to purchase Notes and effect sales of Notes
in the United States only in compliance with the requirements of, applicable
United States law, including without limitation, the 1933 Act, the 1934 Act, the
Regulations and the rules and regulations of the National Association of
Securities Dealers. Additionally, each Dealer represents that it is familiar
with, and agrees that it will observe, the restrictions on the offering of the
Notes and distribution of documents relating to the Notes set forth in Exhibit C
hereto.
D. Commissions. The Corporation does not intend to pay any Dealer a
commission in respect of Notes sold by the Corporation as a result of a
solicitation made by such Dealer as agent for the Corporation. Any decision to
pay such a commission will
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be made on a sale-by-sale basis. Each Dealer shall be entitled to a commission
from the Corporation, if any, only with respect to the solicitation by such
Dealer of an offer to purchase Notes accepted by the Corporation if such
purchase is consummated. If the Corporation shall default on its obligations to
deliver Notes to a purchaser whose offer it has accepted, the Corporation shall
hold the Dealer through which such offer was made harmless against any loss,
claim or damage arising from or as a result of such default by the Corporation
(including any lost commissions, which may be waived by such Dealer). In
addition, if a Dealer has prepaid for Notes that do not settle for any reason
other than the failure of such Dealer to comply with the Procedures, the
Corporation will reimburse the Dealer on a "cost of funds" basis for the use of
the Dealer's funds during the period they were credited to the Corporation's
account.
E. Procedures. Administrative procedures respecting the sale of
Notes shall be agreed upon from time to time by the Dealers and the Corporation
(the "Procedures"). The initial Procedures, which are set forth in Exhibit D
hereto, shall remain in effect until changed by agreement between the
Corporation and the Dealers. The Corporation will furnish a copy of the
Procedures as from time to time in effect to the Fiscal Agent. The Dealers,
severally and not jointly, and the Corporation agree to perform on and after the
Closing Time the respective duties and obligations specifically provided to be
performed by each of them herein and in the Procedures.
F. Delivery. The documents required to be delivered by Section 5
hereof shall be delivered at the office of Xxxxxxxx & Xxxxxxxx, Xxxxx 00, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000, Xxxxxxxxx on November 13, 2003
(Melbourne time), or at such other time as the Dealers and the Corporation may
agree upon in writing (the "Closing Time").
SECTION 3. Covenants of the Corporation and the Guarantor
A. The Corporation covenants with each Dealer as follows:
(a) At any time when a Prospectus is required to be
delivered in connection with the sale of the Notes, the Corporation will comply
with all requirements imposed upon the Corporation by the 1933 Act and the 1934
Act, as now and hereinafter amended, and by the Regulations, as from time to
time in force, so far as necessary to permit the continuance of sale of or a
dealing in the Notes as contemplated by the provisions hereof and by the
Prospectus. If during such period any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser or if it shall be necessary at any such time to
amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act, the 1934 Act or the Regulations,
the Corporation shall give immediate notice, confirmed in writing, to each
Dealer to cease the solicitation of offers to purchase the Notes in its capacity
as agent for the Corporation and to cease sales of any Notes the Dealers may
then own as principal, and if, at the time of any notification to suspend
solicitation, any Dealer shall own any of the Notes with the intention of
reselling them, or the Corporation has accepted an offer to purchase Notes but
the
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related settlement has not occurred, the Corporation and the Guarantor will
promptly prepare and file (at the expense of the Corporation) with the
Commission such amendment or supplement, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement or the
Prospectus, as the case may be, comply with such requirements.
(b) With respect to each sale of Notes, as soon as practicable after
the close of its fiscal year, the Corporation will make generally available to
the holders of the Notes an earnings statement covering a period of at least
twelve months beginning after the effective date of the Registration Statement
which will satisfy the provisions of Section 11(a) of the 1933 Act.
(c) The Corporation will give each Dealer notice of its intention to
file any amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will furnish each Dealer with copies of any such amendment or supplement or
other documents proposed to be filed a reasonable time in advance of filing, and
will afford the Dealers a reasonable opportunity to comment on any such proposed
amendment or supplement before it is filed or used.
(d) The Corporation will notify each Dealer immediately, and confirm
the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or any amendment to the
Registration Statement, (iii) of the receipt of any comments from the Commission
with respect to the Registration Statement or the Prospectus, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (v) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that purpose
and (vi) of the receipt by the Corporation of any notification with respect to
the suspension of the qualification of the Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. The
Corporation will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(e) The Corporation will deliver one manually signed copy of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) to Deutsche Bank
Securities Inc. (the "Lead Dealer", or any successor appointed by the
Corporation from time to time) and as many conformed copies of such documents to
each Dealer as each Dealer may reasonably request. The Corporation will furnish
to each Dealer as many copies of the Prospectus (as amended or supplemented) as
soon as possible and in such quantities as each Dealer shall reasonably request
so long as the Corporation or such Dealer is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
(f) The Corporation will endeavor, in cooperation with the Dealers,
to qualify the Notes for offering and sale and determine their eligibility for
investment under the applicable laws of such states and other jurisdictions of
the
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Xxxxxx Xxxxxx as the Dealers may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Notes; provided, however, that the Corporation shall not be required to
qualify the Notes in any state in which such qualification requires the
Corporation to file a consent to service of process or to qualify to do business
or where such qualification would, in the Corporation's opinion, cause the
Corporation to be subject to taxation by such state. The Corporation will file
such statements and reports as may be required by the laws of each jurisdiction
in which the Notes have been qualified.
(g) So long as any of the Notes are outstanding, the Corporation
will furnish to each Dealer as soon as practicable after the end of each fiscal
year of the Corporation, the annual report of the Corporation, including
financial statements of the Corporation as at the end of and for such year, all
in reasonable detail and reported upon by the Auditor-General of the State of
Queensland, or any successor independent auditor, and, as soon as practicable
after the publication thereof, the annual budget and statement of revenue and
expenditures of the Guarantor.
(h) The Corporation will immediately notify each Dealer by telephone
or facsimile of any downgrading in the rating of the Notes or any other debt
securities of the Corporation, or any proposal to downgrade the rating of the
Notes or any other debt securities of the Corporation, by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the 1933 Act), as soon as the Corporation learns of such
downgrading or proposal to downgrade.
(i) The Corporation shall not issue the Bonds within Australia.
Notwithstanding this, if the Corporation does issue any Bonds within Australia,
then, to the extent that any tax on supply imposed by or through A New Tax
System (Goods and Services Tax) Xxx 0000 or any related tax imposition Act
("GST") is payable in respect of the remuneration payable to the Dealers, the
Corporation shall increase the amount or fees payable to each Dealer under the
Operational Guidelines by an amount equal to the GST payable by each Dealer in
respect of the supply provided that if, for whatever reason, GST is no longer
payable in respect of the supply by a Dealer then, if the Dealer receives a
refund of GST from the Australian Taxation Office, the Dealer shall refund to
the Corporation the additional amount the Corporation paid on account of GST.
The Corporation will not have any obligation to pay any increased consideration
to the Dealers for a supply as a result of this section until:
(1) the Corporation is required to pay an amount to the
Dealers for the supply pursuant to the Operational Guidelines;
(2) the Dealer has given the Corporation a correctly
rendered tax invoice and/or adjustment note in relation to the supply;
and
(3) the Dealer has done all things reasonably necessary upon
request to assist the Corporation to enable it to claim and obtain any
input tax credit available (where entitled) to the Corporation in
respect of the supply.
B. The Guarantor covenants with each Dealer as follows:
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(a) At any time when a Prospectus is required to be
delivered in connection with the sale of the Notes, the Guarantor will
comply with all of the requirements imposed upon the Guarantor by the
1933 Act and 1934 Act, as now and hereafter amended, and by the
Regulations, as from time to time in force, so far as necessary to
permit the continuance of the sale of or a dealing in the Notes as
contemplated by the provisions hereof and by the Prospectus. If during
such period, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser or if it shall be
necessary at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of
the 1933 Act, the 1934 Act or the Regulations, the Corporation or the
Guarantor shall give immediate notice, confirmed in writing, to each
Dealer to cease the solicitation of offers to purchase the Notes in the
Dealer's capacity as Dealer and to cease sales of any Notes the Dealers
may then own as principal, and then if, at the time of any notification
to suspend solicitations, any Dealer shall own any of the Notes with the
intention of reselling them, or the Corporation has accepted an offer to
purchase Notes but the related settlement has not occurred, the
Guarantor will promptly prepare, or assist the Corporation in preparing,
and file with the Commission such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus, as the case may be, comply
with such requirements.
(b) With respect to each sale of Notes and as soon as
practicable after the close of its fiscal year, the Guarantor will make
generally available to the holders of the Notes a statement of its
revenues and expenses, covering a period of at least twelve months
beginning after the effective date of the Registration Statement, which
will satisfy the provisions of Section 11(a) of the 1933 Act.
(c) The Guarantor will give each Dealer notice, or cause the
Corporation to give each Dealer notice, of its intention to file any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish each Dealer, or will cause the Corporation to
furnish each Dealer, with copies of any such amendment or supplement or
other documents proposed to be filed in either case a reasonable time in
advance of filing, and will afford the Dealers a reasonable opportunity
to comment on any such proposed amendment or supplement before it is
filed or used.
(d) The Guarantor will notify each Dealer immediately, and
confirm the notice in writing, or will cause the Corporation to notify
each Dealer immediately and confirm such notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of
the mailing or the delivery to the Commission for filing of any
supplement to the Prospectus or any amendment to the Registration
Statement, (iii) of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus, (iv) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the
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Registration Statement or the initiation of any proceedings for that
purpose and (vi) of the receipt by the Guarantor of any notification
with respect to the suspension of the qualification of the Notes for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purposes. The Guarantor, in cooperation with the
Corporation, will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(e) The Guarantor will assist, in cooperation with the
Dealers and the Corporation, in qualifying the Notes for offering and
sale and determining their eligibility for investment under the
applicable laws of such states and other jurisdictions of the United
States as the Dealers may designate, and will assist in maintaining such
qualifications in effect for as long as may be required for the
distribution of the Notes. The Guarantor will file such statements and
reports as may be required by the laws of each jurisdiction in which the
Notes have been qualified; provided, however, that the Guarantor shall
not be obligated to file a consent to service of process in any
jurisdiction.
SECTION 4. Payment of Expenses
The Corporation, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all reasonable
expenses incidental to the performance of the obligations of the Corporation and
the Guarantor hereunder, will pay the expenses (including fees and disbursements
of counsel) incurred by the Dealers in connection with the matters referred to
in Section 3A(f) hereof and the preparation of memoranda relating thereto, and
will pay any fees charged by investment rating agencies for rating the Notes,
the cost of furnishing to the Dealers copies of the Registration Statement, the
Prospectus and each amendment and supplement thereto, in such numbers as the
Dealers may reasonably request, the reasonable fees and disbursements of its
U.S. legal counsel, the costs and charges of the Fiscal Agent relating to its
duties under the Amended and Restated Fiscal Agency Agreement and the Notes,
NASD filing fees and expenses, out-of-pocket expenses of the Dealers in
connection with delivery of the Prospectus and the cost of preparing, issuing
and delivering the Notes. The Corporation shall not in any event be liable to
the Dealers for loss of anticipated profits from the transactions covered by
this Agreement.
SECTION 5. Conditions of Obligation
The obligations of each Dealer to solicit, or to act as the
Corporation's agent in receiving, offers to purchase the Notes in its capacity
as agent of the Corporation or to consummate any purchase by it as principal of
Notes from the Corporation as contemplated by Section 2B hereof will be subject
to the accuracy of the representations and warranties on the part of the
Corporation and the Guarantor herein contained, to the accuracy of the
statements of any duly authorized officer or official of the Corporation or the
Guarantor made in any certificate furnished pursuant to the provisions of
Section 5(b)(1), 5(c) or 6A(b), to the performance and observance by the
Corporation and the Guarantor of all their respective covenants and other
obligations hereunder and to the following further conditions:
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(a) (1) No stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission; and
(2) subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there shall not have been any material adverse
change in the financial position, results of operation, business
affairs or business prospects of the Corporation or the
financial, political or economic conditions of the Government of
Queensland except as set forth in or contemplated by the
Prospectus (which, in the case of a sale of Notes to a Dealer as
principal, shall be the Prospectus as supplemented or amended as
of the date of the agreement for such sale between the
Corporation and the Dealer).
(b) At the Closing Time, and at such other times specified in
and subject to the provisions of Section 6A(b) and (c) hereof the
Dealers shall have received:
(1) A certificate or certificates, dated as of such
times, signed by the Chairman, Chief Executive or Acting Chief
Executive of the Corporation in respect of the Corporation and
by the Under Treasurer or Acting Under Treasurer of the State of
Queensland in respect of the Guarantor, in which such persons,
to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the
Corporation and the Guarantor in this Agreement are true and
correct, that the Corporation and the Guarantor have complied
with all agreements and satisfied all conditions on their part
to be performed or satisfied hereunder at or prior to such time,
that no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been no
material adverse change in the financial position, results of
operation, business affairs or business prospects of the
Corporation or the financial, political or economic conditions
of the Government of Queensland except as set forth in or
contemplated by the Prospectus or as described in such
certificate.
(2) An opinion, dated as of such times, of the Crown
Solicitor for the State of Queensland, with respect to the
incorporation of the Corporation, the validity of the Notes and
the guarantee of the Notes by the Guarantor, the Registration
Statement, the Prospectus and other related matters as they may
require, and the Corporation and the Guarantor shall have
furnished to such counsel such documents as he requests for the
purpose of enabling him to pass upon such matters. In rendering
such opinions, such counsel may rely on the opinion of Xxxxxxxx
& Xxxxxxxx (or other counsel satisfactory to the Dealers
receiving such opinions) as to all matters governed by United
States law.
(3) An opinion, dated as of such times, of Xxxxxxxx &
Xxxxxxxx,
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or such other counsel satisfactory to the Dealers receiving such
opinions, with respect to the validity under the laws of New
York and the United States of America of the Notes and the
guarantee of the Notes by the Guarantor, the Registration
Statement, the Prospectus and other related matters as they may
require, and the Corporation and the Guarantor shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In giving
their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of
the Crown Solicitor as to all matters governed by Queensland and
Australian law.
(4) From the Auditor-General of the State of Queensland,
or any successor independent auditor, a letter, dated as of such
times, and delivered at such times, in the form heretofore
agreed to.
(c) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange or the Australian Stock Exchange Limited;
(ii) a general moratorium on commercial banking activities (A) in New
York declared by either U.S. federal or New York State regulatory
authorities or (B) in Australia declared by the Australian regulatory
authorities; (iii) any outbreak or escalation of hostilities, other
insurrections or armed conflict in which the United States of America or
the Commonwealth of Australia is involved or any declaration of a
national emergency or war by either of such countries, or any other
calamity or crisis or materially adverse change in general economic,
political or financial conditions having an effect on the U.S. financial
markets; or (iv) any downgrading in the rating of any debt securities of
the Corporation by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933
Act), which, in the case of any of the events described in clauses (i)
through (iv) above, individually or in the aggregate, in the sole
judgment of such Dealer, makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase Securities, or the
consummation of the purchase of Notes by such Dealer as principal for
resale to others, as the case may be, on the terms and in the manner
contemplated in the Prospectus as then amended or supplemented.
(d) At the Closing Time and at such other times specified in
Sections 6A(b) and (c), Xxxxxxxx & Xxxxxxxx, or such other counsel
satisfactory to the Dealers receiving such opinions, shall have been
furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Corporation and the Guarantor in connection with the issuance and sale
of the Notes as herein contemplated shall be satisfactory in form and
substance to the Dealers and their counsel.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement or, if
applicable, any agreement for the sale of Notes to a Dealer as principal, may be
terminated by any affected Dealer with respect to such Dealer by notice to the
Corporation at any time at or prior to the Closing Time or the time of
settlement of such sale of Notes to a Dealer as principal, as the case may be,
and such termination shall be without liability of any party to any other party,
except that the
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covenants set forth in Section 3A(d) hereof, the provisions of Section 4 hereof,
the indemnity and contribution agreement set forth in Sections 7 and 8 hereof,
and the provisions of Sections 10 and 13 hereof shall remain in effect.
SECTION 6. Additional Covenants of the Corporation
A. The Corporation covenants and agrees that:
(a) Each acceptance by it of an offer for the purchase of
Notes, and each agreement for the sale of Notes to a Dealer as
principal, shall be deemed to be an affirmation that the representations
and warranties of the Corporation contained in this Agreement and in any
certificate theretofore delivered to the Dealers pursuant to Sections
5(b)(1) hereof which was last furnished to the Dealers are true and
correct at the time of such acceptance or sale, as the case may be, and
such representations and warranties of the Corporation will be true and
correct at the time of delivery to the purchaser or his agent, or such
Dealer, as the case may be, of the relevant Notes as though made at and
as of each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and the Prospectus
as amended and supplemented to each such time). Each such acceptance by
the Corporation of an offer for the purchase of Notes, and each
agreement for the sale of Notes to a Dealer as principal, shall be
deemed to constitute an additional representation, warranty and
agreement by the Corporation that, as of the settlement date for the
sale of such Notes, after giving effect to the issuance of such Notes,
of any other Notes to be issued on or prior to such settlement date and
of any other debt securities to be issued and sold by the Corporation on
or prior to such settlement date, (i) the aggregate principal amount of
all outstanding Notes which have been issued and sold by the Corporation
pursuant to this Agreement will not exceed US$500,000,000 or its
equivalent (calculated as described in the Prospectus) (or such other
amount as may from time to time be agreed upon in writing among the
Corporation, the Guarantor and the Dealers) and (ii) the aggregate
amount of debt securities (including any Notes) to which the
Registration Statement relates which have been issued and sold by the
Corporation in transactions which require such debt securities to be
registered under the 1933 Act will not exceed the amount of debt
securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment
or supplement providing solely for change in the interest rate, purchase
price or maturities of the Notes remaining to be sold or similar
changes) or another Registration Statement is filed with the Commission
with respect to the Notes, the Corporation shall furnish or cause to be
furnished to the Dealers forthwith a certificate or certificates in form
satisfactory to the Dealers to the effect that the statements made on
behalf of the Corporation and the Guarantor and contained in the
certificates referred to in Section 5(b)(1) hereof which were last
furnished to the Dealers are true and correct at the time of such
amendment or supplement or filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended
and supplemented to such time) or, in lieu of such certificate,
certificates of the same tenor as the certificates referred to in said
Section 5(b)(1), modified as necessary to
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relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificates.
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment
or supplement providing solely for a change in the interest rate,
purchase price or maturities of the Notes remaining to be sold or
similar changes), or another Registration Statement is filed with the
Commission with respect to the Notes, the Corporation shall furnish or
cause to be furnished forthwith to the Dealers and the counsel for the
Dealers a written opinion of the Crown Solicitor of the State of
Queensland and Xxxxxxxx & Xxxxxxxx, or other counsel satisfactory to the
Dealers receiving such opinions, dated the date of delivery of such
opinions, in form satisfactory to the Dealers receiving such opinions,
of the same tenor as the opinions referred to in Section 5(b)(2) and
(3), hereof but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion or, in lieu of any such opinion, counsel last
furnishing such opinions to the Dealers shall furnish to any Dealer
entitled to receive such opinion a letter to the effect that such Dealer
may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance).
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include additional
financial information, the Auditor-General of the State of Queensland
shall furnish the Dealers a letter, dated the date of filing of such
amendment, supplement or document with the Commission, of the same tenor
as the portions of the letter referred to in Section 5(b)(4) hereof but
modified to relate to the Registration Statement and Prospectus, as
amended and supplemented to the date of such letter.
(e) The Corporation agrees that any obligation of a person
who has agreed to purchase Notes to make payment for and take delivery
of such Notes shall be subject to (i) the accuracy, on the related
settlement date fixed pursuant to the Procedures, of the Corporation's
representation and warranty deemed to be made to the Dealers pursuant to
the last sentence of Section 6A(a), and (ii) the satisfaction, on such
settlement date, of each of the conditions set forth in Section 5(a).
(f) The Corporation, as co-registrant with the Guarantor,
will file an annual report on Form 18-K with the Commission within nine
months after the close of each of its fiscal years.
(g) As soon as practicable after the occurrence of a
material development in the operations or financial position of the
Corporation, the Corporation will disclose such material development by
filing a report on Form 18-K/A amending its most recent annual report on
Form 18-K filed as co-registrant with the Guarantor.
(h) In respect of any Tranche of Notes which must be
redeemed before the first anniversary of the date of its issue, the
Corporation will issue such Notes
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only if the following conditions apply (or the Notes can otherwise be
issued without contravention of Section 19 of the United Kingdom
Financial Services and Markets Act 2000 (the "FSMA"):
(a) the relevant Dealer covenants in the terms set
out in paragraph (iv) of Exhibit C hereto; and
(b) the redemption value of each Note is not less
than (pound)100,000 (or an amount of equivalent value
denominated wholly or partly in a currency other than sterling),
and no part of any Note may be transferred unless the redemption
value of that part is not less than (pound)100,000 (or such an
equivalent amount).
B. The Guarantor covenants and agrees that:
(a) The Guarantor, as co-registrant with the Corporation,
will file an annual report on Form 18-K with the Commission within nine
months after the close of each of its fiscal years.
(b) As soon as practicable after the occurrence of a
material development in the financial, political or economic condition
of the Guarantor, the Guarantor will disclose such material development
by filing a report on Form 18-K/A amending its most recent annual report
on Form 18-K filed as co-registrant with the Corporation.
SECTION 7. Indemnification
(a) Each of the Corporation and the Guarantor agrees to
indemnify and hold harmless each Dealer and each person, if any, who
controls each Dealer within the meaning of Section 15 of the 1933 Act as
follows:
(1) against any and all loss, liability, claim,
damage and expense arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Prospectus or any amendment or supplement
thereto or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission was made in
reliance upon and in conformity with written information
furnished to the Corporation or the Guarantor by any Dealer
expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or
supplement thereto);
(2) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon
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any such untrue statement or omission, or any such alleged
untrue statement or omission (except as made in reliance upon
and in conformity with information furnished by any Dealer as
aforesaid) if such settlement is effected with the written
consent of the Corporation and the Guarantor; and
(3) against any and all expense whatsoever
(including, subject to Section 7(c) hereof, the reasonable fees
and disbursements of counsel chosen by the Dealers) reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission (except as made in reliance
upon and in conformity with information furnished by Dealer as
aforesaid), to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that the foregoing indemnity with respect to
any untrue statement contained in or omission from a preliminary
prospectus shall not inure to the benefit of the Dealer (or any
person controlling such Dealer) from whom the person asserting
any such loss, liability, claim or damage purchased any of the
Notes which are the subject thereof if such untrue statement or
omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the
Prospectus (or the Prospectus as amended or supplemented) and a
copy of such Prospectus shall have been furnished to such Dealer
at or prior to the written confirmation of the sale of such
Notes to such person but a copy of such Prospectus shall not
have been furnished to such person at or prior to such time.
(b) Each Dealer agrees to indemnify and hold harmless each
of the Corporation and the Guarantor, each of the Corporation's
officials, officers and representatives who signed the Registration
Statement, and each person, if any, who controls the Corporation within
the meaning of Section 15 of the 1933 Act against any and all loss,
liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Corporation or the Guarantor by such Dealer expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or
any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have
otherwise than on account of this indemnity agreement. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying
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party), and after notice from the indemnifying party to such indemnified
party as to its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation unless the indemnified party shall
have been advised by counsel that representation of the indemnified
party by counsel provided by the indemnifying party pursuant to the
foregoing would be inappropriate due to actual or potential conflicting
interests between the indemnifying party and the indemnified party,
including situations in which there are one or more legal defenses
available to the indemnified party that are different for or additional
to those available to the indemnifying party. In no event shall the
indemnifying parties be liable for the fees and expenses of more than
one counsel separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, except to the extent that the local
counsel, in addition to its regular counsel, is required in order to
effectively defend against such action or proceeding.
SECTION 8. Contribution
If the indemnification provided for in Section 7 is unavailable or
insufficient to hold harmless an indemnified party under Sections 7 (a) or (b)
(otherwise than pursuant to the express terms thereof), then the indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in Section
7 (a) or (b) (i) in such proportion as is appropriate to reflect the relative
benefits received by the Corporation and the Guarantor, on the one hand, and any
Dealer, on the other, from the offering pursuant to this Agreement of the Notes
which are the subject of the action or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Corporation and the Guarantor, on the
one hand, and any Dealer, on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Corporation and the Guarantor, on the one hand, and any Dealer, on the
other, shall be deemed to be in the same proportions as the total net proceeds
from the offering pursuant to this Agreement of the Notes which are the subject
of the action (before deducting expenses) received by the Corporation bear to
the total discounts and commissions received by such Dealer from the offering of
such Notes pursuant to this Agreement. The relative fault 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 Corporation and the Guarantor or such
Dealer and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statements or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this Section. Notwithstanding the provisions of this Section 8,
no Dealer shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes which are the subject of the action and
which were distributed to the public through it
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pursuant to this Agreement or upon resale of Notes purchased by it from the
Corporation exceeds the amount of any damages which such Dealer 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each Dealer in this Section to contribute
are several, in the same proportion which the amount of the Notes which are the
subject of the action and which were distributed to the public through such
Dealer pursuant to this Agreement bears to the total amount of such Notes
distributed to the public through all of the Dealers pursuant to this Agreement,
and not joint.
SECTION 9. Status of the Dealers
In soliciting purchases of the Notes from the Corporation (other than
purchases as principal), each Dealer is acting solely as agent for the
Corporation and not as principal. Each Dealer will make reasonable efforts to
assist the Corporation in obtaining performance by each purchaser whose offer to
purchase Notes from the Corporation has been solicited by such Dealer and
accepted by the Corporation but such Dealer shall not have any liability to the
Corporation in the event any such purchase is not consummated for any reason.
Nothing herein contained shall constitute the Dealers an association,
joint venture or partnership, with the Corporation or the Guarantor or with each
other.
SECTION 10. Representations, Warranties and Agreements to Survive Delivery
All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Corporation or the
Guarantor submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of any Dealer or any controlling person, or by or on behalf
of the Corporation or the Guarantor, and shall survive each delivery of and
payment for any of the Notes.
SECTION 11. Termination
This Agreement may be terminated (with respect to the participation of
any party hereto) for any reason at any time by the Corporation, the Guarantor,
or by any Dealer, upon the giving of written notice of such termination to the
other parties hereto. In the event of any such termination by any party hereto,
no other party will have any liability to such party and such party will not
have any liability to any other party hereto, except that (i) in the case of a
termination pursuant to this Section 11, the Dealers shall be entitled to any
commissions earned in accordance with the fourth paragraph of Section 2A hereof,
(ii) if at the time of termination (A) the Dealers shall own any of the Notes
with the intention of reselling them or (B) an offer to purchase any of the
Notes has been accepted by the Corporation or an agreement for the sale of Notes
has been entered into between the Corporation and a Dealer but the time of
delivery to the purchaser or his agent of the Notes has not occurred, the
covenants set forth in Sections 3 and 6 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, and (ii) the covenant
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set forth in Section 3A(a) and 3B(a) hereof, the provisions of Section 4 hereof,
the indemnity agreement set forth in Section 7 hereof, the contribution
agreement set forth in Section 8 hereof, and the provisions of Sections 10 and
13 hereof shall remain in effect.
SECTION 12. Notices
All notices and other communications hereunder shall be delivered in
person, sent by registered airmail post or by telex or facsimile transmission or
communicated by telephone (subject in the case of communication by telephone to
confirmation within 24 hours by letter delivered by one of the foregoing means)
and shall be effective upon receipt, provided always that the failure of any
letter, facsimile or telex confirmation to be delivered to or received by the
party to whom it is addressed shall not invalidate the telephone communication
in respect whereof it is sent. Notices to the Dealers shall be directed in the
case of Deutsche Bank Securities Inc. to: 1251 Avenue of the Xxxxxxxx, 00xx
Xxxxx Xxx Xxxx, Xxx Xxxx 00000 (facsimile no. (000) 000-0000), attention: Xxxxx
Xxxxxx; in the case of any other Dealer, to such Dealer in care of Deutsche Bank
Securities Inc. at the foregoing address; notices to the Corporation shall be
directed to: Queensland Treasury Corporation, Minerals and Energy Centre, 00
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, 0000, Xxxxxxxxx (facsimile no. (61-7)
3210-0262), attention: Chief Executive: and notices to the Guarantor shall be
directed to: Queensland Treasury, Executive Building, 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 0000, Xxxxxxxxx, attention: Under Treasurer (facsimile no.
(00) 0000-0000 ).
SECTION 13. Parties
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and the Dealers' respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein or therein contained. This Agreement and all conditions
and provisions hereof and thereof (except for the conditions set forth in
Section 6A(e) hereof) are intended to be for the sole and exclusive benefit of
the parties hereto and their respective successors and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Notes shall
be deemed to be a successor by reason merely of such purchase.
SECTION 14. Sales of Notes Denominated in a Currency other than U.S. Dollars or
of Indexed Notes
A. If at any time the Corporation and any of the Dealers shall
determine to issue and sell Notes denominated in a currency other than U.S.
dollars, which other currency may include a currency unit, or Indexed Notes (as
defined below), the Corporation, the Guarantor and any such Dealer may execute
and deliver a supplement to this Agreement for the purpose of making any
appropriate additions to and modifications of the terms of this Agreement (and
the Procedures) applicable to such Notes and the offer
-20-
and sale thereof.
B. Each Dealer agrees, with respect to any Note denominated in a
currency other than U.S. dollars, that it will not (i) as agent, directly or
indirectly, solicit offers to purchase or (ii) as principal under any Terms
Agreement or otherwise, directly or indirectly, offer, sell or deliver, such
Note in, or to residents of, the country issuing such currency, except as
permitted by applicable law.
C. As used in this Section 14, the term "Indexed Notes" shall refer
to Notes in respect of which (i) the amount of principal repayable at maturity
and/or (ii) the amount of interest payable on each interest payment date and at
maturity is determined by reference to one or more indices or formulas,
including, without limitation, currencies, currency units and financial indices.
D. The Corporation, the Guarantor and each Dealer hereby agrees not
to solicit or accept any offers for, or otherwise to enter into any agreement
providing for, the purchase on any day of Indexed Notes having the same interest
rate or interest rate formula, if any, Stated Maturity, Issue Date and other
terms unless the aggregate Face Amount of such Indexed Notes is equal to or
greater than US$2,500,000 (or, in the case of Indexed Notes denominated in a
currency other than U.S. dollars (the "Denominated Currency"), the equivalent
thereof in the Denominated Currency based upon the noon buying rate on the date
the Corporation agrees to issue such Indexed Notes in New York City for cable
transfer in such Denominated Currency as certified for customs purposes by the
Federal Reserve Bank of New York). Each of the Dealers, in soliciting offers for
Indexed Notes, hereby undertakes to market such Indexed Notes subject to the
minimum aggregate amount described in the preceding sentence. In addition, each
of the Dealers hereby agrees not to market any Indexed Notes as being or having
the characteristics of a futures contract or commodity option, except to the
extent necessary to describe the operation of the instrument or to comply with
applicable disclosure requirements.
SECTION 15. Governing Law
This Agreement shall be governed by the laws of the State of New York
without reference to the principles of conflicts of laws thereof, except that
all matters governing authorizations and executions by the Corporation and the
Guarantor shall be governed by the laws of the State of Queensland.
SECTION 16. Consent to Service; Jurisdiction
Each of the Corporation and the Guarantor hereby appoints Deutsche Bank
Trust Company Americas of 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and its
authorized successors as its authorized agent (the "Authorized Agent") upon
which process may be served in any action by any Dealer, or by any person
controlling any Dealer, arising out of or based upon this Agreement which may be
instituted in any State or Federal court in The City or State of New York, and
expressly accepts the jurisdiction of any such court in respect of any such
action. Such appointment shall be irrevocable as long as any of the Notes remain
outstanding except that if, for any reason, such agent ceases to act in such
capacity, each of the Corporation and the Guarantor will appoint another person
in New York, selected in its discretion, as such Authorized Agent.
-21-
Notwithstanding the foregoing, each of the Corporation and the Guarantor reserve
the right to appoint another person located or with an office in New York,
selected in its discretion without the consent of the Authorized Agent, as a
successor Authorized Agent, and upon acceptance of such appointment by such a
successor the appointment of the prior Authorized Agent shall terminate. Each of
the Corporation and the Guarantor will take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment or appointments in full force and effect as aforesaid.
Service of process upon the Authorized Agent, together with written notice of
such service mailed or delivered to the Corporation or the Guarantor, as the
case may be, at the addresses set forth in Section 12 hereof shall be deemed in
every respect effective service of process upon the Corporation or the
Guarantor, as the case may be. Notwithstanding the foregoing, any action by any
Dealer, or by any person controlling any Dealer, arising out of or based upon
this Agreement may be instituted in any competent court in the State of
Queensland or any court in the Commonwealth of Australia competent to hear
appeals therefrom. Each of the Corporation and the Guarantor hereby waives
irrevocably any immunity from jurisdiction (but not execution or attachment or
process in the nature thereof) to which it might otherwise be entitled in any
action arising out of or based upon this Agreement which may be instituted as
provided in this Section in any State or Federal court in The City or the State
of New York or in any competent court in the State of Queensland or any court in
the Commonwealth of Australia competent to hear appeals therefrom.
-22-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
QUEENSLAND TREASURY CORPORATION
By:
-------------------------------------
Name: Xxxxxxx Rochester
Title: Chief Executive
THE TREASURER ON BEHALF OF
THE GOVERNMENT OF QUEENSLAND
By:
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Treasurer
-23-
CONFIRMED AND ACCEPTED, as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
By: By:
-------------------------------- -----------------------------
Name: Name:
Date: Date:
ABN AMRO INCORPORATED
By:
--------------------------------
Name:
Date:
CITIGROUP GLOBAL MARKETS INC.
By:
--------------------------------
Name:
Date:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
--------------------------------
Name:
Date:
ROYAL BANK OF CANADA EUROPE LIMITED
By:
--------------------------------
Name:
Date:
RBC DOMINION SECURITIES CORPORATION
By:
--------------------------------
Name:
Date:
-24-
EXHIBIT A
FORM OF DEALER ACCESSION LETTER
[Name of Dealer]
Dear Sirs:
Attached hereto is a copy of the Amended and Restated Distribution Agreement,
dated November 13, 2003, among Queensland Treasury Corporation, a corporation
sole constituted under the laws of the State of Queensland, Commonwealth of
Australia (the "Corporation"), the Treasurer on behalf of the Government of
Queensland (the "Guarantor"), and the several Dealers named therein (the
"Amended and Restated Distribution Agreement"), and, to the extent applicable,
the provisions thereof are incorporated by reference herein and deemed to be
part of this letter agreement to the same extent as if such provisions had been
set forth in full herein. All capitalized terms used but not defined herein
shall have the meanings assigned in the Agreement.
The Corporation and the Guarantor hereby request that you act as a Dealer in the
Notes, subject in all respects to the terms and conditions set forth in the
Amended and Restated Distribution Agreement, as from ________, [until _________]
[INSERT IF REVERSE INQUIRY -- solely for the purpose of offering and selling up
to an aggregate principal amount of the Notes] and you hereby agree so to act.
The Corporation and the Guarantor hereby confirm to you their respective
representations and warranties in the Amended and Restated Distribution
Agreement as if made as of the date hereof.
This letter agreement shall be governed by the laws of the State of New York
without reference to the principles of conflicts of laws thereof, except that
all matters governing authorizations and executions by the Corporation and the
Guarantor shall be governed by the laws of the State of Queensland.
By execution hereof, you agree that you shall be subject to the same obligations
[for the purposes of the offer and sale of such Notes] that you would have had
if you had been a Dealer named in the Amended and Restated Distribution
Agreement.
A-1
Please sign and return to us a counterpart of this letter to acknowledge your
agreement to the terms hereof.
Yours faithfully,
QUEENSLAND TREASURY CORPORATION
By:
-------------------------------------
Name:
Title:
THE TREASURER ON BEHALF OF
THE GOVERNMENT OF QUEENSLAND
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, this day of _______, ____
[NAME OF DEALER]
By:
-------------------------------------
Name:
Title:
A-2
SECTION 17. EXHIBIT B
FORM OF TERMS AGREEMENT
The following terms, if agreed to by the Presenting Dealer and the Corporation,
may be specified in any Terms Agreement:
Principal Amount: US$________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Redemption Date(s):
Redemption Percentage(s):
Redemption Date(s):
(Option of Holder)
Redemption Percentage(s):
(Option of Holders)
Date of Maturity:
Purchase Price: ____%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
[INSERT IF APPLICABLE -- The obligation of the Presenting Dealer to purchase
Notes hereunder is subject to the satisfaction, at such Settlement Date, of each
of the conditions
B-1
set forth in Section 5(b) of the Amended and Restated Distribution Agreement,
dated as of November 13, 2003, between the Corporation and the Dealers named
therein (it being understood that each document so required to be delivered
shall be dated such Settlement Date).]
B-2
EXHIBIT C
SELLING RESTRICTIONS
Each Dealer will (to the best of its knowledge and belief) comply with
all applicable laws and regulations in force in any jurisdiction in which it
purchases, offers or sells the Notes or possesses or distributes the Prospectus
and will obtain any consent, approval or permission required by it for the
purchase, offer or sale by it of the Notes under the laws and regulations in
force in any jurisdiction to which it is subject or in which it makes such
purchases, offers or sales and neither the Corporation nor any other Dealer
shall have responsibility therefor.
Each of the Dealers, severally and not jointly, represents and warrants
to, and agrees with, the Corporation that, in connection with its solicitation
of offers to purchase Notes or its initial distribution of any Notes purchased
by it as principal:
(i) It will not offer or sell Notes, directly or indirectly, in the
Commonwealth of Australia, its territories and possessions ("Australia") and
that:
(A) it has not directly or indirectly offered for subscription
or purchase or issued invitations to subscribe for or buy or sell any
Notes; and
(B) it will not directly or indirectly offer for subscription or
purchase or issue invitations to subscribe for or buy or sell any Notes;
and
(C) it has not distributed and will not distribute any draft or
final form offering memorandum, advertisement or other offering material
relating to any Notes
in Australia or to any person that the employees of the Dealer acting in
connection with the offer or sale know or have reasonable grounds to suspect is
an Offshore Associate of the Corporation other than one acting in the capacity
of a dealer, manager or underwriter in relation to the placement of the Notes or
in the capacity of a clearing house, custodian, funds manager or responsible
entity of a registered scheme (within the meaning of the Corporations Xxx 0000
(Australia).
(ii) (A) It will co-operate with the Corporation with a view to
ensuring that Notes are offered for sale in such a manner which will allow
payments of interest or amounts in the nature of interest on the Notes to be
exempt from Australian withholding tax under section 128F of the Income Tax
Assessment Act 1936 (Australia).
(B) It hereby represents and warrants to and for the benefit of
the Corporation that at the date of this Agreement:
C-1
(1) in performing its obligations under this Agreement, it
is and will be acting in the course of carrying on a
business of providing finance, or investing or dealing
in securities in the course of operating in financial
markets;
(2) except as disclosed to the Corporation, it is not, so
far as it is aware, an associate (within the meaning of
section 128F of the Income Tax Assessment Act 1936
(Australia)) of any other Dealer.
(C) It agrees to notify the Corporation promptly of any act,
condition, matter or thing of which it is aware and which renders the
representations and warranties contained in clause (ii)(B) of this
Exhibit untrue or inaccurate in any material respect if repeated with
reference to the facts and circumstances then subsisting.
(D) It represents and agrees that it will not sell Notes or an
interest in Notes to any person who is known or reasonably suspected by
the employees of the Dealer acting in connection with the offer or sale
to be an Offshore Associate other than one acting in the capacity of a
dealer, manager or underwriter in relation to the placement of the Notes
or in the capacity of a clearing house, custodian, funds manager or
responsible entity of a registered scheme (within the meaning of the
Corporations Xxx 0000 (Australia).
(E) The Corporation:
(1) will place and maintain on an Electronic Source
the following information:
(a) the name of the Corporation;
(b) the name of the Programme;
(c) such other information in connection with
the Programme as the Corporation wishes
(subject to this Agreement); and
(2) will distribute to each Dealer such number of
copies of the Prospectus as the Dealer
reasonably requests.
(F) Each Dealer may place on an Electronic Source the following
information:
(1) the name of the Corporation;
(2) the name of the Programme;
(3) the Dealer's name and contact details; and
C-2
(4) such other information agreed between the
Corporation and Dealer with the exception of
information relating to indicative pricing and
secondary trading which may be placed on an
Electronic Source by a Dealer without the
consent of the Corporation.
(G) In connection with any Note issued, unless a Dealer has
confirmed in writing to the Corporation that the initial issue to the
Dealer of Notes was a result of negotiations initiated pursuant to an
Electronic Source, each Dealer will, for the purpose of placing the
Notes, within 30 days of issue:
(1) offer for sale any Notes issued to it and
procure that negotiations for sale are initiated
pursuant to an Electronic Source; or
(2) offer any Notes issued to at least 10 persons
each carrying on a business of providing finance
or investing or dealing in securities in the
course of operating in financial markets and not
known or reasonably suspected by the Dealer to
be an associate (within the meaning of section
128F of the Income Tax Xxxxxxxxxx Xxx 0000
(Xxxxxxxxx)) of any other person covered by this
paragraph; or
(3) offer any Notes issued to it to at least 100
persons whom it is reasonable for the Dealer to
regard as having acquired securities similar to
the Notes in the past or being likely to be
interested in acquiring such instruments.
This undertaking does not apply where the issue of the
Notes resulted from their being offered for issue as a
result of being accepted for listing on a stock exchange
where the Corporation had previously entered into an
agreement with the Dealer, in relation to the placement
of the Notes, requiring the Corporation to seek such
listing.
(H) In connection with any Note issued, each Dealer will
provide to the Corporation, within 14 days of receipt of a
request from the Corporation, such information of which it is
aware in relation to any such Note as is reasonably required for
the purposes of assisting the Corporation to demonstrate that
the public offer test under section 128F of the Income Tax
Assessment Act 1936 (Australia) has been satisfied but no Dealer
is obliged to disclose the identity of the purchaser of any Note
or any information from which such identity might or would be
capable of being ascertained, or any information the disclosure
of which would be contrary to or prohibited by any relevant law,
regulation or directive. In connection with any Note issued and
within 14 days of receipt of a request from the Corporation,
each Dealer will provide directly to the Australian Taxation
Office on a confidential basis information necessary to
demonstrate its compliance with the provisions of clause (ii)(G)
of this Exhibit.
C-3
(I) In this Exhibit, "Electronic Source" means an
electronic financial markets information source:
(a) operated by Reuters or Bloomberg; or
(b) which has been approved in writing by the
Corporation,
access to which is available to market participants.
(J) In this Exhibit, "Offshore Associate" means an
associate (as defined in Section 128F) of the Corporation that
is either a non-resident of the Commonwealth of Australia which
does not acquire the Notes in carrying on a business at or
through a permanent establishment in Australia or,
alternatively, is a resident of Australia that acquires the
Notes in carrying on a business at or through a permanent
establishment outside of Australia.
(iii) in relation to Notes which have a maturity of one year or more
it has not offered or sold and, prior to the expiry of the period of six months
from the Issue Date specified in the pricing supplement for such Notes, will not
offer or sell any such Notes to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
United Kingdom Public Offers of Securities Regulations 1995;
(iv) in relation to any Notes which have a maturity of less than one
year, (i) it is a person whose ordinary activities involve it in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of its business and (ii) it has not offered or sold and will not offer
or sell any Notes other than to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or as
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 where the issue of the Notes would otherwise
constitute a contravention of Section 19 of the United Kingdom Financial
Services and Markets Act 2000 (the "FSMA") by the Corporation;
(v) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the FSMA)
received by it in connection with the issue of any Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Corporation or the
Guarantor; and
(vi) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to any Notes in,
from or otherwise involving the United Kingdom.
(vii) in connection with the offering of Notes on behalf of the
Corporation denominated in Japanese Yen or payable in Japanese Yen ("Yen Notes")
each Dealer confirms that if it purchases such Yen Notes, it will make such
purchases for its own account, and it will not solicit offers to purchase Yen
Notes, effect sales of Yen Notes or
C-4
deliver Yen Notes directly or indirectly in Japan or to any person resident in
Japan or to or for the benefit of any Japanese person (which term as used herein
means any person resident in Japan, including any corporation or any other
entity organized under the laws of Japan) or to others for reoffering, resale or
delivery, directly or indirectly, in Japan or to or for the benefit of any
Japanese person except in circumstances which will result in compliance with any
applicable laws, regulations and ministerial guidelines of Japan taken as a
whole. Each Dealer agrees to provide any necessary information on Yen Notes to
the Corporation (which shall not include the name of the clients) so that the
Corporation may make any required reports to the Kanto Local Finance Bureau,
Japan, the Minister of Finance of Japan, or any other competent governmental
authority in Japan.
C-5
EXHIBIT D
ADMINISTRATIVE PROCEDURES
The U.S. Medium-Term Notes, Series A, due from nine months to 30 years
from their issue date (the "Notes") are to be offered on a continuing basis by
Queensland Treasury Corporation (the "Issuer"). Deutsche Bank Securities Inc.,
ABN AMRO Incorporated, Credit Suisse First Boston Corporation, RBC Dominion
Securities Corporation and Citigroup Global Markets Inc., as agents
(individually, a "Dealer" and collectively, the "Dealers"), have each agreed to
use best efforts to solicit offers to purchase the Notes. The Dealers will not
be obligated to purchase Notes for their own account. The Notes are being sold
pursuant to an Amended and Restated Distribution Agreement, dated November 1,
2002 (the "Amended and Restated Distribution Agreement"), among the Issuer, The
Treasurer on behalf of the Government of Queensland (the "Guarantor") and the
Dealers, and will be issued pursuant to an Amended and Restated Fiscal Agency
Agreement, dated November 1, 2002 (the "Amended and Restated Fiscal Agency
Agreement"), between the Issuer and Deutsche Bank Trust Company Americas, as
fiscal agent (the "Fiscal Agent"). The Notes will be unconditionally guaranteed
by the Guarantor pursuant to one or more Deeds of Guarantee given under Section
33 of the Queensland Treasury Corporation Act 1988 (the "Guarantee"), and the
Notes and the Guarantee will rank pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer and the Guarantor, respectively, and
will have been registered under the U.S. Securities Act of 1933 (the "Act"). For
a description of the terms of the Notes and the Guarantee and the offering and
sale thereof, see the sections entitled "Description of Notes and Guarantee",
"Special Provisions and Risks Relating to Foreign Currency Notes", "Plan of
Distribution of Notes" and "Glossary" in the Prospectus Supplement relating to
the Notes, dated November 1, 2002 attached hereto and hereinafter referred to as
the "Prospectus Supplement", and the sections entitled "Description of
Securities and Guarantee", "United States Federal Taxation" and "Plan of
Distribution" in the Prospectus relating to the Notes, dated November 1, 2002,
attached hereto and hereinafter referred to as the "Prospectus". Defined terms
used herein but not defined herein shall have the meanings assigned to them in
the Amended and Restated Distribution Agreement, the Prospectus or the
Prospectus Supplement, or if different, in the applicable Pricing Supplement.
The Notes will be represented either by Global Notes delivered to The
Depository Trust Company ("DTC") or its nominee and recorded in the book-entry
system maintained by DTC or such nominee ("Book-Entry Notes") or by certificates
delivered to the Holders thereof or Persons designated by such Holders
("Certificated Notes"). Notes for which interest is calculated on the basis of a
fixed interest rate are referred to herein as "Fixed Rate Notes". Notes for
which interest is calculated at a rate or rates determined by reference to an
interest rate formula are referred to herein as "Floating Rate Notes".
Notes which are issued at a price lower than the principal amount
thereof and which provide that upon redemption or acceleration of the Maturity
thereof an amount less than the principal thereof shall become due and payable
are referred to herein as "Original Issue Discount Notes". For special
provisions relating to Original Issue Discount Notes and other Notes issued at a
discount for tax purposes, see the section entitled "United States Holders --
Original Issue Discount" in the Prospectus.
Unless otherwise indicated in the applicable Pricing Supplement, the
Notes will be denominated in U.S. dollars and payments of principal of and any
premium and interest on the Notes will be made in U.S. dollars in the manner
indicated in the Prospectus and the Prospectus Supplement. Notes denominated in
one or more currencies or currency units other than U.S. dollars are referred to
herein as "Foreign Currency Notes". For special provisions relating to Foreign
Currency Notes, see the sections entitled "Special Provisions Relating to
Foreign Currency Notes" in the Prospectus Supplement. Specific information
concerning the foreign currency or currency unit in which a particular Foreign
Currency Note is denominated, including historical exchange rates and a
description of the currency and any exchange controls, shall be contained in a
Pricing Supplement to the Prospectus Supplement reflecting the terms of such
Note.
D-1
Notes which provide that amounts payable by the Issuer in respect of
principal of or any premium or interest on the Notes shall be determined by
reference to the value, rate or price of one or more specified indices, and are
referred to herein as "Indexed Notes". Specific information pertaining to the
method for determining the principal amounts payable, an historical comparison
of the value, rate or price of the specified index, indices and the face amount
of the Indexed Note and certain additional tax considerations will be described
in the applicable Pricing Supplement.
Administrative procedures and specific terms of the offering are
explained below. Part I indicates procedures applicable to all Notes; Part II
indicates specific procedures for Certificated Notes; and Part III indicates
specific procedures for Book-Entry Notes. The Issuer will advise the Dealers in
writing of those persons handling administrative responsibilities with whom the
Dealers are to communicate regarding offers to purchase Notes and the details of
their delivery.
PART I: PROCEDURES APPLICABLE TO ALL NOTES
Issue Date
Each Note will be dated the date of its authentication. Each Note will
also bear an original issue date (the "Issue Date") which, with respect to any
such Note (or portion thereof), shall mean the date of its original issuance and
shall be specified therein. The Issue Date will remain the same for all Notes
subsequently issued upon transfer, exchange or substitution of a Note,
regardless of their dates of authentication.
Price to Public
Except as otherwise specified in a Pricing Supplement, each Note will be
issued at 100% of principal amount.
Maturities; Minimum Purchase;
Each Note will mature on a date, selected by the purchaser and agreed to
by the Issuer, which will be at least nine months but not more than 30 years
after its Issue Date. Except as otherwise specified in a Pricing Supplement, the
minimum aggregate amount of Notes which may be offered to any purchaser will be
$100,000 or, in the case of Notes issued in Japanese Yen, at least (Y)1,000,000.
In the case of Notes issued on terms that they
D-2
must be redeemed before their first anniversary will, if the proceeds of the
issue are accepted in the United Kingdom, constitute deposits for the purposes
of the prohibition on accepting deposits contained in section 19 of the United
Kingdom Financial Services and Markets Act 2000 unless they are issued to a
limited class of professional investors and have a denomination of at least
(pound)100,000 or its equivalent, see "Exhibit C-Selling Restrictions".
Interest Payments
Interest on each interest-bearing Note will be calculated and paid in
the manner described in such Note and in the Prospectus Supplement and the
applicable Pricing Supplement. Unless otherwise set forth therein, interest on
Fixed Rate Notes (including interest for partial periods) will be calculated on
the basis of a 360-day year of twelve 30-day months and will not accrue on the
31st day of any month. Interest on Floating Rate Notes, except as otherwise set
forth therein, will be calculated on the basis of actual days elapsed and a year
of 360 days, except that in the case of a Floating Rate Note for which the Base
Rate is the Treasury Rate, interest will be calculated on the basis of the
actual number of days in the year.
On the fifth Business Day immediately preceding each Interest Payment
Date, the Fiscal Agent will furnish the Issuer with the total amount of interest
payments (whether in U.S. dollars or other currencies or currency units) to be
made on such Interest Payment Date. The Fiscal Agent will provide monthly, to
the Issuer, a list of the principal and any premium and interest to be paid on
Notes maturing in the next succeeding month. The Fiscal Agent will assume
responsibility for withholding taxes on interest paid as required by law.
Redemption/Repayment
If indicated in the applicable Pricing Supplement, the Notes of a
particular tenor will be subject to redemption in whole or in part (subject to
applicable minimum denominations), at the option of the Issuer on and after an
initial redemption date as set forth in the applicable Pricing Supplement and in
the applicable Note. The redemption price will be set forth in the applicable
Pricing Supplement and in the applicable Note.
If indicated in the applicable Pricing Supplement, the Notes of a
particular tenor will be subject to repayment at the option of the Holders
thereof in accordance with the terms of the Notes on a repayment date as set
forth in the applicable Pricing Supplement and in the applicable Note. The
repayment date or dates and repayment price will be set forth in the applicable
Pricing Supplement and in the applicable Note.
Procedures for Establishing the Terms of the Notes
The Issuer and the Dealers will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of offers
by the Dealers. Once any Dealer has recorded any indication of interest in Notes
upon certain terms, and communicated with the Issuer, if the Issuer plans to
accept an offer to purchase Notes upon such terms, it will prepare a Pricing
Supplement to the Prospectus, as then amended or supplemented, reflecting the
terms of such Notes and, after confirmation of the description of the terms of
such Note in the Pricing Supplement by the Dealer who
D-3
presented the offer (the "Presenting Dealer"), will arrange to have 10 copies of
the Pricing Supplement filed with, or transmitted by a means reasonably
calculated to result in filing with, the Securities and Exchange Commission (the
"Commission") pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Act")./1/ The Issuer will supply at least 10 copies of the Prospectus, as
then amended or supplemented, and bearing such Pricing Supplement, to the
Presenting Dealer. No settlements with respect to Notes upon such terms may
occur prior to such transmitting or filing and the Dealers will not, prior to
such transmitting or filing, mail confirmations to customers who have offered to
purchase Notes upon such terms. After such transmitting or filing, sales,
mailing of confirmations and settlements may occur with respect to Notes upon
such terms, subject to the provisions of "Delivery of Prospectus" below.
If the Issuer decides to post rates and a decision has been reached to
change interest rates, the Issuer will promptly notify each Dealer. Each Dealer
will forthwith suspend solicitation of purchases. At that time, the Dealers will
recommend and the Issuer will establish rates to be so "posted". Following
establishment of posted rates and prior to the transmitting or filing described
in the preceding paragraph, the Dealers may only record indications of interest
in purchasing Notes at the posted rates. Once any Dealer has recorded any
indication of interest in Notes at the posted rates and communicated with the
Issuer, if the Issuer plans to accept an offer at the posted rate, it will
prepare a Pricing Supplement reflecting such posted rates and, after approval
from the Presenting Dealer, will arrange to have 10 copies of the Pricing
Supplement filed with, or transmitted by means reasonably calculated to result
in filing with the Commission and will supply at least 10 copies of the
Prospectus, as then amended or supplemented, accompanied by such Pricing
Supplement, to the Presenting Dealer. No settlements at the posted rates may
occur prior to such transmitting or filing and the Dealers will not, prior to
such transmitting or filing, mail confirmations to customers who have offered to
purchase Notes at the posted rates. After such transmitting or filing, sales,
mailing of confirmations and settlements may resume, subject to the provisions
of "Delivery of Prospectus" below.
Outdated Pricing Supplements, and copies of the Prospectus to which they
are attached (other than those retained for files), will be destroyed.
Notwithstanding the foregoing the Issuer shall have the right to discuss
possible issues of Notes or post rates for certain Notes, with one or some of
the Dealers rather than all of the Dealers.
Suspension of Solicitation; Amendments or Supplements
As provided in the Amended and Restated Distribution Agreement, the
Issuer may instruct the Dealers to suspend solicitation of offers to purchase at
any time, and upon receipt of at least one Business Day's prior notice from the
Issuer, the Dealers will
--------
/1/ If clause (b)(3) of Rule 424 is applicable, such filing shall be made no
later than the fifth business day following the earlier of the date of
determination of the settlement information described below or the date
such Pricing Supplement is first used. If clause (b)(2) or (b)(5) of
Rule 424 is applicable, such filing shall be made no later than the
second business day following the earlier of the date of determination
of the settlement information or the date such Pricing Supplement is
first used.
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each forthwith suspend solicitation until such time as the Issuer has advised
them that solicitation of offers to purchase may be resumed.
If the Dealers receive the notice from the Issuer or the Guarantor
contemplated by Section 3A(a) or 3B(a) of the Amended and Restated Distribution
Agreement, they will promptly suspend solicitation and will only resume
solicitation as provided in the Amended and Restated Distribution Agreement. If
the Issuer or the Guarantor, as the case may be, is required, pursuant to
Section 3A(a) or 3B(a) of the Amended and Restated Distribution Agreement, to
prepare an amendment or supplement, it will promptly furnish each Dealer with
the proposed amendment or supplement; if the Issuer or the Guarantor, as the
case may be, decides to amend or supplement the Registration Statement or the
Prospectus relating to the Notes, it will promptly advise each Dealer and will
furnish each Dealer with the proposed amendment or supplement, in each case in
accordance with the terms of the Amended and Restated Distribution Agreement.
The Issuer or the Guarantor, as the case may be, will file such amendment or
supplement with the Commission, provide the Dealers with copies of any such
amendment or supplement, confirm to the Dealers that such amendment or
supplement has been filed with the Commission and advise the Dealers that
solicitation may be resumed.
Any such suspension shall not affect the Issuer's and Guarantor's
respective obligations under the Amended and Restated Distribution Agreement;
and in the event that at the time the Issuer or the Guarantor, suspends
solicitation of offers to purchase there shall be any offers already accepted by
the Issuer outstanding for settlement, the Issuer will have the sole
responsibility for fulfilling such obligations. The Issuer will in addition
promptly advise the Dealer and the Fiscal Agent in writing if such offers are
not to be settled and if copies of the Prospectus as in effect at the time of
the suspension may not be delivered in connection with the settlement of such
offers.
Acceptance of Offers
Each Dealer will promptly advise the Issuer, at its option orally or in
writing, of each reasonable offer to purchase Notes received by it. Each Dealer
may, in its discretion reasonably exercised, without notice to the Issuer,
reject any offer received by it, in whole or in part. The Issuer will have the
sole right to accept offers to purchase Notes and may reject any such offer, in
whole or in part. If the Issuer accepts or rejects an offer, in whole or in
part, the Issuer will promptly so notify the Presenting Dealer.
Confirmation
For each accepted offer, the Presenting Dealer will issue a confirmation
to the purchaser, with a separate confirmation to the Issuer, setting forth the
Purchase Information (as defined under II below with respect to Certificated
Notes and III below with respect to Book-Entry Notes) and delivery and payment
instructions; provided, however, that, in the case of the confirmation issued to
the purchaser, no confirmation shall be delivered to the purchaser prior to the
delivery of the Prospectus referred to below.
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Determination of Settlement Date
The receipt of immediately available funds by the Issuer in payment for
a Note and (i) in the case of Certificated Notes, the authentication and
issuance of such Note and (ii) in the case of Book-Entry Notes, entry by the
Presenting Dealer of an SDFS deliver order through DTC's Participant Terminal
System to credit such Note to the account of a Participant purchasing, or acting
for the purchase of, such Note, shall, with respect to such Note, constitute
"settlement". All offers accepted by the Issuer will be settled on the fifth
Business Day next succeeding the date of acceptance unless otherwise agreed by
the purchaser and the Issuer. The settlement date shall be specified upon
receipt of an offer to purchase. Prior to 11:00 a.m., New York City time, on the
settlement date, the Issuer will instruct the Fiscal Agent in writing as
provided in the Amended and Restated Fiscal Agency Agreement to authenticate and
deliver the Notes no later than 2:15 p.m., New York City time, on that date.
Delivery of Prospectus
A copy of the Prospectus as most recently amended or supplemented on the
date of delivery thereof (except as provided below) must be delivered to a
purchaser prior to or together with the earlier of the delivery of (i) the
written confirmation provided for above, and (ii) any Note purchased by such
purchaser. (For this purpose, entry of an SDFS deliver order through DTC's
Participant Terminal System to credit a Note to the account of a Participant
purchasing, or acting for the purchaser of, a Note shall be deemed to constitute
delivery of such Note.) Subject to the foregoing, it is anticipated that
delivery of the Prospectus, confirmation and Notes to the purchaser will be made
simultaneously at settlement. The Issuer shall ensure that the Presenting Dealer
receives copies of the Prospectus and each amendment or supplement thereto
(including appropriate Pricing Supplements) in such quantities and within such
time limits as will enable the Presenting Dealer to deliver such confirmation or
Note to a purchaser as contemplated by these procedures and in compliance with
the first sentence of this paragraph. If, since the date of acceptance of a
purchaser's offer, the Prospectus shall have been supplemented solely to reflect
any sale of Notes on terms different from those agreed to between the Issuer and
such purchaser or a change in posted rates not applicable to such purchaser,
such purchaser shall not receive the Prospectus as supplemented by such new
supplement, but shall receive the Prospectus as supplemented to reflect the
terms of the Notes being purchased by such purchaser and otherwise as most
recently amended or supplemented on the date of delivery of the Prospectus.
Authenticity of Signatures
The Issuer will cause the Fiscal Agent to furnish the Dealers from time
to time with the specimen signatures of each of the Fiscal Agent's officers,
employees or dealers who have been authorized by the Fiscal Agent to
authenticate Notes, but no Dealer will have any obligation or liability to the
Issuer, the Guarantor or the Fiscal Agent in respect of the authenticity of the
signature of any officer, employee or dealer of the Issuer, the Guarantor or the
Fiscal Agent on any Note or the Global Note (as defined in Part III).
Advertising
The Issuer will determine with the Dealers the amount of advertising
that may be appropriate in offering the Notes.
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Business Day
"Business Day" means any day which is not a Saturday or Sunday and is
not a day on which banking institutions are generally authorized or obligated by
law or executive order to close in The City of New York and, with respect to
LIBOR notes, a London Banking Day. "London Market Day" means any day on which
dealings in deposits in U.S. Dollars are transacted in the London interbank
market.
Fiscal Agent Not to Risk Funds
Nothing herein shall be deemed to require the Fiscal Agent to risk or
expend its own funds in connection with any payment made to the Issuer, the
Guarantor, the Dealers, DTC or any Noteholder, it being understood by all
parties that payments made by the Fiscal Agent to the Issuer, the Guarantor, the
Dealers, DTC or any Holder of a Note shall be made only to the extent that funds
are provided to the Fiscal Agent for such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Form and Denominations
Unless otherwise specified in the applicable Pricing Supplement, the
Certificated Notes shall be issued only in fully registered form in
denominations of $100,000 and integral multiples of $1,000 in excess thereof,
or, in the case of Foreign Currency Notes, in such minimum denomination, not
less than the equivalent of $100,000, and such greater denomination or
denominations in excess thereof, as shall be set forth in the applicable Pricing
Supplement.
Transfers and Exchanges
A Certificated Note may be presented for transfer or exchange at the
principal corporate trust office of the Fiscal Agent in The City of New York.
Certificated Notes will be exchangeable for other Certificated Notes of any
authorized denominations and of like tenor and in a like aggregate principal
amount, upon surrender of the Certificated Notes to be exchanged at the
corporate trust office of the Fiscal Agent. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Payment at Maturity
Upon presentation of each Certificated Note at Maturity, the Fiscal
Agent (or a duly authorized Paying Agent) will pay the principal amount thereof,
together with any premium and accrued interest due at Maturity. Such payment
will be made in immediately available funds, provided that the Certificated Note
is presented in time for the Fiscal Agent or such Paying Agent to make payment
in such funds in accordance with its normal procedures. The Issuer will provide
the Fiscal Agent (and any Paying Agent) with funds available for immediate use
for such purpose. Certificated Notes presented at Maturity will be canceled by
the Fiscal Agent as provided in the Amended and Restated Fiscal Agency
Agreement. For special provisions relating to Foreign Currency Notes, see the
section entitled "Special Provisions Relating to Foreign Currency Notes" in the
Prospectus Supplement.
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Details for Settlement
For each offer for Certificated Notes accepted by the Issuer, the
Presenting Dealer shall communicate to the Issuer no later than 3:00 p.m., New
York City time, on the second Business Day preceding the settlement date, by
telephone, telex, facsimile transmission or other acceptable means, the
following information (the "Purchase Information"):
1. Exact name in which the Note or Notes are to be registered
("registered owner").
2. Exact address of registered owner and, if different, the address
for delivery, notices and payment of principal and any premium
and interest.
3. Taxpayer identification number of registered owner.
4. Principal amount of each Note in authorized denominations to be
delivered to registered owner.
5. In the case of Fixed Rate Notes, the interest rate of each Note;
in the case of Floating Rate Notes, the interest rate formula,
the Interest Rate Basis, the Spread and/or Spread Multiplier (if
any), the Computation Period, the maximum or minimum interest
rate limitation (if any), the Calculation Agent, the Calculation
Dates, the Initial Interest Rate, the Interest Payment Period,
the Interest Payment Months, the Interest Payment Dates, the
Regular Record Dates, the Index Maturity, the Interest
Determination Dates, the Interest Reset Months and the Interest
Reset Dates, in each case, to the extent applicable with respect
to each Note.
6. Stated Maturity of each Note.
7. Redemption and/or repayment provisions, if any, of each Note.
8. The Exchange Rate Agent, if applicable.
9. The Regular Record Date, if applicable.
10. Trade date of each Note.
11. Settlement date (Issue Date) of each Note.
12. Presenting Dealer's commission (to be paid in the form of a
discount from the proceeds remitted to the Issuer upon
settlement).
13. Price.
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14. Currency or currency unit in which each Note is to be
denominated and exchange rate applicable to purchase Foreign
Currency Notes to be paid for in U.S. dollars.
15. Any additional applicable terms of each Note.
The Issue Date of, and the settlement date for, Certificated Notes will
be the same. Before accepting any offer to purchase Certificated Notes to be
settled in less than three Business Days, the Issuer shall verify that the
Fiscal Agent will have adequate time to prepare and authenticate the Notes.
Immediately after receiving the details for each offer for Certificated
Notes from the Presenting Dealer, the Issuer will, after recording the details
and any necessary calculations, communicate the Purchase Information by
telephone, telex, facsimile transmission or other acceptable means confirmed in
writing, to the Fiscal Agent no later than 10:00 a.m. New York City time on the
Business Day preceding the Settlement Date. Each such instruction given by the
Issuer to the Fiscal Agent shall constitute a continuing representation and
warranty by the Issuer and the Guarantor to the Fiscal Agent and the Dealers
that (i) the issuance and delivery of such Notes and the Guarantee thereof have
been duly and validly authorized by the Issuer and the Guarantor, respectively,
and (ii) when completed, authenticated and delivered, such Notes and the
Guarantee thereof shall constitute the valid and legally binding obligation of
the Issuer and the Guarantor, respectively. The Fiscal Agent will assign to and
enter on each Note a transaction number.
The Issuer will deliver to the Fiscal Agent a pre-printed four-ply
packet for such Certificated Note, which packet will contain the following
documents in forms that have been approved by the Issuer, the Dealers and the
Fiscal Agent:
1. Certificated Note with customer confirmation.
2. Stub One - For the Fiscal Agent.
3. Stub Two - For the Presenting Dealer.
4. Stub Three - For the Issuer.
The Fiscal Agent will complete such Certificated Note and will
authenticate such Certificated Note and deliver it (with the confirmation) and
Stubs One and Two to such Dealer, and such Dealer will acknowledge receipt of
the Note by stamping or otherwise marking Stub One and returning it to the
Fiscal Agent. The Fiscal Agent will send Stub Three to the Issuer by first-class
mail.
Settlement; Note Deliveries and Cash Payment
The Issuer will deliver to the Fiscal Agent at the commencement of the
program and from time to time thereafter a supply of duly executed Certificated
Notes with pre-printed control numbers adequate to implement the program. Upon
the receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Officers' Certificate and verification thereof,
the Fiscal Agent will cause the
D-9
Certificated Notes to be completed and authenticated and hold the Certificated
Notes for delivery against payment.
The Fiscal Agent will deliver the Certificated Notes, in accordance with
instructions from the Issuer, to the Presenting Dealer, as the Issuer's dealer,
for the benefit of the purchaser only against receipt. The Presenting Dealer
will acknowledge receipt of the Notes through a broker's receipt. Delivery of
the Certificated Notes by the Fiscal Agent will be made only against such
acknowledgement of receipt from the Presenting Dealer. Upon the Presenting
Dealer's determination that such Note has been authenticated, delivered and
completed as aforesaid, the Presenting Dealer will make, or cause to be made,
payment to the Issuer at such account of the Issuer as it may specify in
writing, in immediately available funds, of an amount equal to the principal
amount of such Notes, less the applicable commission. If the Presenting Dealer
in any instance advances its own funds, the Issuer shall not use any of the
proceeds of such sale to acquire securities.
The Presenting Dealer, as the Issuer's agent, will deliver the Notes
(with the written confirmation provided for above) to the purchaser thereof
against payment therefor by such purchaser in immediately available funds.
Delivery of any confirmation or Note will be made in compliance with "Delivery
of Prospectus" in Part I above.
Fails
In the event that a purchaser shall fail to accept delivery of and make
payment for a Certificated Note on the settlement date, the Presenting Dealer
will notify the Fiscal Agent and the Issuer, by telephone, confirmed in writing.
If such Certificated Note has been delivered to the Presenting Dealer, as the
Issuer's dealer, the Presenting Dealer shall return such Note to the Fiscal
Agent. If funds have been advanced for the purchase of such Note, the Fiscal
Agent will, immediately upon receipt of such Note, debit the account of the
Issuer for the amount so advanced and the Fiscal Agent shall refund the payment
previously made by the Presenting Dealer in immediately available funds. Such
payments will be made on the settlement date, if possible, and in any event not
later than the Business Day following the settlement date. If the fail shall
have occurred for any reason other than the failure of the Presenting Dealer to
provide the Purchase Information to the Issuer or to provide a confirmation to
the purchaser, the Issuer will reimburse the Presenting Dealer on an equitable
basis for its loss of the use of funds during the period when the funds were
credited to the account of the Issuer.
Immediately upon receipt of the Certificated Note in respect of which
the fail occurred, the Fiscal Agent will make appropriate entries in its records
to reflect the fact that the Note was never issued and the Note will be canceled
and disposed of as provided in the Amended and Restated Fiscal Agency Agreement.
PART III: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Fiscal Agent will
perform the custodial, document control and administrative functions described
below, in accordance with its obligations under a Letter of Representations (the
"Letter") from the Issuer and the Fiscal Agent to DTC dated as of March 20,
2001, and a Medium-Term Note Certificate
D-10
Agreement between the Fiscal Agent and DTC dated as of October 21, 1988, and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Form, Denominations and Registration
All Book-Entry Notes of the same tenor and having the same Issue Date,
will be represented initially by a single Note (a "Global Note") in fully
registered form without coupons. Book-Entry Notes will represent Notes
denominated in U.S. dollars and will be entitled to the benefits of the
Guarantee. Unless otherwise specified in the applicable Pricing Supplement,
Global Notes will be issued in denominations of $100,000 and integral multiples
of $1,000 in excess thereof. Each Global Note will be registered in the name of
Cede & Co., as nominee for DTC, on the Security Register maintained under the
Amended and Restated Fiscal Agency Agreement. The beneficial owner of a
Book-Entry Note (or one or more indirect participants in DTC designated by such
owner) will designate one or more participants in DTC (with respect to such
Note, the "Participants") to act as agent or agents for such owner in connection
with the book-entry system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such Participants, a credit
balance with respect to such Note in the account of such Participants. The
ownership interest of such beneficial owner in such Note will be recorded
through the records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
CUSIP Numbers
The Issuer has arranged with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the reservation of a series
of CUSIP numbers (including tranche numbers), such series consisting of
approximately 900 CUSIP numbers and relating to Global Notes representing
Book-Entry Notes. The Issuer has obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers and has delivered it to the Fiscal
Agent and DTC. The Fiscal Agent will assign CUSIP numbers serially to Global
Notes as described below under "Details for Settlement". DTC will notify the
CUSIP Service Bureau periodically of the CUSIP numbers that the Fiscal Agent has
assigned to Global Notes. The Fiscal Agent will notify the Issuer at the time
when fewer than 100 of the reserved CUSIP numbers remain unassigned to the
Global Notes; and the Issuer will reserve an additional 900 CUSIP numbers for
assignment to Global Notes representing Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Issuer shall deliver a list of such additional
CUSIP numbers to the Fiscal Agent and DTC.
Transfers and Exchanges for the Purpose of Consolidation
Transfers of a Book-Entry Note will be accomplished by book entries made
by DTC and, in turn, by Participants (and, in certain cases, one or more
indirect participants in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
The Fiscal Agent may upon notice to the Issuer deliver to DTC and the
CUSIP Service Bureau at any time a written notice (a copy of which shall be
attached to the Global Note resulting from such exchange) specifying (i) the
CUSIP numbers of two or more outstanding Global Notes that represent Book-Entry
Notes of the same tenor and
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having the same Issue Date, and for which interest (if any) has been paid to the
same date, (ii) a date occurring at least thirty days after such written notice
is delivered and at least thirty days before the next Interest Payment Date (if
any) for such Notes, on which such Global Notes shall be exchanged for a single
replacement Global Note and (iii) a new CUSIP number to be assigned to such
replacement Global Note. Upon receipt of such a notice, DTC will send to its
Participants (including the Fiscal Agent) a written reorganization notice to the
effect that such exchange will occur on such date. Prior to the specified
exchange date, the Fiscal Agent will deliver to the CUSIP Service Bureau a
written notice setting forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP numbers of the Global Notes to
be exchanged will no longer be valid. On the specified exchange date, the Fiscal
Agent will exchange such Global Notes for a single Global Note bearing the new
CUSIP number and the CUSIP numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be canceled and not immediately
reassigned.
Notice of Interest Payment Dates and Regular Record Dates
To the extent then known, on the first Business Day of March, June,
September, and December of each year, the Fiscal Agent will deliver to the
Issuer and DTC a written list of Record Dates and Interest Payment Dates that
will occur with respect to Floating Rate Book-Entry Notes during the six-month
period beginning on such first Business Day.
Payments of Principal and Interest
(a) Payments of Interest Only. Promptly after each Regular Record
Date, the Fiscal Agent will deliver to the Issuer and DTC a written notice
specifying by CUSIP number the amount of interest to be paid on each Global Note
on the following Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts. The Issuer will confirm
with the Fiscal Agent the amount payable on each Global Note on such Interest
Payment Date. DTC will confirm the amount payable on each Global Note on such
Interest Payment Date by reference to the daily or weekly bond reports published
by Standard & Poor's Corporation. The Issuer will pay to the Fiscal Agent the
total amount of interest due on such Interest Payment Date (other than at
Maturity), and the Fiscal Agent will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment".
(b) Payments at Stated Maturity. On or about the first Business Day
of each month, the Fiscal Agent will deliver to the Issuer and DTC a written
list of principal and interest to be paid on each Global Note maturing in the
following month. The Issuer, the Fiscal Agent and DTC will confirm the amounts
of such principal and interest payments with respect to each such Global Note on
or about the fifth Business Day preceding the Stated Maturity of such Global
Note. The Issuer will pay to the Fiscal Agent, as the paying agent, the
principal amount of such Global Note, together with interest due at such Stated
Maturity. Upon surrender of a Global Note, the Fiscal Agent will pay such
amounts to DTC at the times and in the manner set forth below under "Manner of
Payment". If any Stated Maturity of a Global Note representing Book-Entry Notes
is not a Business Day, the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on such payment for the
period from and after such Stated Maturity. Promptly after payment to DTC of the
principal and any interest due at the Stated Maturity of such Global Note, the
Fiscal Agent will cancel and destroy
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such Global Note and issue a certificate of destruction to the Issuer in
accordance with the terms of the Amended and Restated Fiscal Agency Agreement.
(c) Payment upon Redemption. The Fiscal Agent will comply with the
terms of the Letter with regard to redemptions or repayments of the Book-Entry
Notes. In the case of Book-Entry Notes stated by their terms to be redeemable
prior to Stated Maturity, at least 60 calendar days before the date fixed for
redemption (the "Redemption Date"), the Issuer shall notify the Fiscal Agent in
writing of the Issuer's election to redeem such Book-Entry Notes in whole or in
part and the principal amount of such Book-Entry Notes to be so redeemed. At
least 30 calendar days but not more than 60 calendar days prior to the
Redemption Date, the Fiscal Agent shall notify DTC of the Issuer's election to
redeem such Book-Entry Notes. The Fiscal Agent shall notify the Issuer and DTC
of the CUSIP numbers of the particular Book-Entry Notes to be redeemed either in
whole or in part. The Issuer, the Fiscal Agent and DTC will confirm the amounts
of such principal and any premium and interest payable with respect to each such
Book-Entry Note on or about the fifth Business Day preceding the Redemption Date
of such Book-Entry Note. The Issuer will pay the Fiscal Agent, in accordance
with the terms of the Amended and Restated Fiscal Agency Agreement, the amount
necessary to redeem each such Book-Entry Note or the applicable portion of each
such Book-Entry Note. The Fiscal Agent will pay such amount to DTC at the times
and in the manner set forth herein. Promptly after payment to DTC of the amount
due on the Redemption Date for such Book-Entry Note, the Fiscal Agent shall
cancel and destroy any such Book-Entry Note redeemed in whole and shall deliver
a certificate of destruction to the Issuer. If a Global Note is to be redeemed
in part, the Fiscal Agent will cancel such Global Note and issue a Global Note
which shall represent the remaining portion of such Global Note and shall bear
the CUSIP number of the canceled Global Note.
(d) Manner of Payment. The total amount of any principal and
interest due on Global Notes on any Interest Payment Date or at Maturity shall
be paid by the Issuer to the Fiscal Agent in immediately available funds on such
date. The Issuer will make such payment on such Global Notes by wire transfer to
the Fiscal Agent. The Issuer will confirm instructions regarding payment in
writing to the Fiscal Agent. Prior to 10:00 a.m., New York City time, on each
date of Maturity of a Book-Entry Note or as soon as possible thereafter, the
Fiscal Agent will pay by separate wire transfer (using Fedwire message entry
instructions in a form previously specified by DTC) to an account at the Federal
Reserve Bank of New York previously specified by DTC in funds available for
immediate use by DTC, each payment of principal (together with interest thereon)
due at Maturity on Book-Entry Notes. On each Interest Payment Date, interest
payment shall be made to DTC in same day funds in accordance with existing
arrangements between the Fiscal Agent and DTC. Thereafter, on each such date,
DTC will pay, in accordance with its SDFS operating procedures then in effect,
such amounts in funds available for immediate use to the respective Participants
in whose names the Book-Entry Notes represented by such Global Notes are
recorded in the book-entry system maintained by DTC. NEITHER THE ISSUER NOR THE
FISCAL AGENT SHALL HAVE ANY DIRECT RESPONSIBILITY OR LIABILITY FOR THE PAYMENT
BY DTC TO SUCH PARTICIPANTS OF THE PRINCIPAL OF AND ANY PREMIUM AND INTEREST ON
THE BOOK-ENTRY NOTES.
(e) Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a Book-Entry Note
will be determined
D-13
and withheld by the Participant, indirect participant in DTC or other person
responsible for forwarding payments and materials directly to the beneficial
owner of such Note.
Details for Settlement; Settlement; Global Note Delivery and Cash Payment
The Issuer will deliver to the Fiscal Agent at the commencement of the
program and from time to time thereafter a supply of duly executed Global Notes
with pre-printed control numbers adequate to implement the program. Upon the
receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Officers' Certificate and verification thereof,
the Fiscal Agent will cause the Global Note to be completed and authenticated
and hold the Global Note for delivery against payment.
Settlement Procedures with regard to each Book-Entry Note sold by the
Issuer shall be as follows:
A. For each offer for Book-Entry Notes accepted by the Issuer, the
Presenting Dealer shall communicate to the Issuer by telephone, telex, facsimile
transmission or other acceptable means, the following information (the "Purchase
Information"):
1. Exact name in which the Notes are to be registered
("registered owner").
2. Exact address of registered owner and, if different, the
address for delivery, notices and payment of principal
and any premium and interest.
3. Taxpayer identification number of registered owner.
4. Principal amount of the Notes.
5. Authorized denominations of the Notes, if applicable.
6. Stated Maturity of the Notes.
7. In the case of Fixed Rate Notes, the interest rate of
the Notes; in the case of Floating Rate Notes, the
interest rate formula, the Interest Rate Basis, the
Spread and/or Spread Multiplier (if any), the
Computation Period, the maximum or minimum interest rate
limitation (if any), the Calculation Agent, the
Calculation Dates, the Initial Interest Rate, the
Interest Payment Period, the Interest Payment Months,
the Interest Payment Dates, the Regular Record Dates,
the Index Maturity, the Interest Determination Dates,
the Interest Reset Months and the Interest Reset Dates,
in each case, to the extent applicable with respect to
the Notes.
8. Redemption and/or repayment provisions, if any, of the
Notes.
D-14
9. The Exchange Rate Agent, if applicable.
10. The Regular Record Date, if applicable.
11. Trade date of the Notes.
12. Settlement date (Issue Date) of the Notes.
13. Presenting Dealer's commission (to be paid in the form
of a discount from the proceeds remitted to the Issuer
upon settlement).
14. Price.
15. Currency or currency unit in which the Notes are to be
denominated and exchange rate applicable to purchase
Foreign Currency Notes payable in U.S. dollars.
16. Any additional applicable terms of the Notes.
The Issue Date of, and the settlement date for, Book-Entry Notes will be
the same. Before accepting any offer to purchase Book-Entry Notes to be settled
in less than two Business Days, the Issuer shall verify that the Fiscal Agent
will have adequate time to prepare and authenticate the Global Notes.
If the initial interest rate for a Floating Rate Book-Entry Note has not
been determined at the time that the foregoing procedure is completed, the
procedures described below in Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no later than 12:00 Noon
and 2:00 p.m., as the case may be, on the Business Day before the settlement
date.
B. The Issuer will, after recording the details and any necessary
calculations, communicate the Purchase Information by telephone, telex,
facsimile transmission or other acceptable means, with confirmation in writing
to the Fiscal Agent. Each such instruction given by the Issuer to the Fiscal
Agent shall constitute a continuing representation and warranty by the Issuer
and the Guarantor to the Fiscal Agent and the Dealers that (i) the issuance and
delivery of such Notes and the Guarantee thereof have been duly and validly
authorized by the Issuer and the Guarantor, respectively, and (ii) when
completed, authenticated and delivered, such Notes and the guarantee thereof
shall constitute the valid and legally binding obligations of the Issuer and the
Guarantor, respectively.
C. The Fiscal Agent will assign a CUSIP number to the Global Note
representing such Book-Entry Note and will telephone the Issuer and the
Presenting Dealer and advise the Issuer and the Presenting Dealer of such CUSIP
number. The Fiscal Agent will enter a pending deposit message through DTC's
Participant Terminal System, providing the following settlement information to
DTC (which shall route such information to Standard & Poor's Corporation) and
the relevant Dealer:
1. The applicable Purchase Information.
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2. Initial Interest Payment Date for each Book-Entry Note, number
of days by which such date succeeds the Regular Record Date
which shall be the Regular Record Date (as defined in the Note),
and, if known, the amount of interest payable on such Interest
Payment Date per $1,000 principal amount of Book-Entry Notes.
3. Identification as either a Fixed Rate Note or a Floating Rate
Note.
4. CUSIP number of the Global Note representing such Note.
5. Whether such Global Note will represent any other Book-Entry
Note (to the extent known at such time).
6. Interest payment periods.
7. Numbers of the participant accounts maintained by DTC on behalf
of the Fiscal Agent and the Dealers.
Standard & Poor's Corporation will use the information received in the
pending deposit message to include the amount of any interest payable and
certain other information regarding the related Global Note in the appropriate
daily or weekly bond report published by Standard & Poor's Corporation.
D. The Fiscal Agent, as fiscal agent, will authenticate the Global
Note representing such Book-Entry Notes.
E. DTC will credit such Note to the Fiscal Agent's participant
account at DTC.
F. The Fiscal Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Note to the Fiscal
Agent's participant account and credit such Note to the Presenting Dealer's
participant account and (ii) debit the Presenting Dealer's settlement account
and credit the Fiscal Agent's settlement account for an amount equal to the
price of such Note less such Dealer's commission (in accordance with SDFS
operating procedures in effect on the Settlement Date). The entry of such a
deliver order shall constitute a representation and warranty by the Fiscal Agent
to DTC that (i) the Global Note representing such Note has been executed,
delivered and authenticated and (ii) the Fiscal Agent is holding such Global
Note pursuant to the Medium-Term Note Certificate Agreement between the Fiscal
Agent and DTC.
G. The Presenting Dealer will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit such Note to such
Dealer's participant account and credit such Note to the Participant accounts of
the Participants with respect to such Note and (ii) to debit the settlement
accounts of such Participants and credit the settlement account of such Dealer
for an amount equal to the price of such Note (in accordance with SDFS operating
procedures in effect on the settlement date).
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Transfers of funds are subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events specified in the
SDFS operating procedures in effect on the settlement date.
H. The Fiscal Agent, upon confirming receipt of such funds, will
wire transfer the amount transferred to the Fiscal Agent, in funds available for
immediate use, for the account of ________________, to account no. __________ at
[name of bank], [location of bank] (ABA No. __________).
I. The Issuer will deliver to the Fiscal Agent a pre-printed
four-ply packet for such Global Note, which packet will contain the following
documents in forms that have been approved by the Issuer, the Dealers and the
Fiscal Agent:
1. Global Note.
2. Stub One - For the Fiscal Agent.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Issuer.
The Fiscal Agent will complete such Global Note and will authenticate
such Global Note and hold such Global Note pursuant to the Certificated
Agreement. The Fiscal Agent will deliver Stubs One and Two to such Dealer, and
such Dealer will acknowledge receipt of the Note by stamping or otherwise
marking Stub One and returning it to the Fiscal Agent. The Fiscal Agent will
send Stub Three to the Issuer by first-class mail. Periodically, the Fiscal
Agent will send to the Issuer a statement setting forth the principal amount of
Notes outstanding as of that date under the Amended and Restated Fiscal Agency
Agreement and setting forth a brief description of any sales of which the Issuer
has advised the Fiscal Agent but which have not yet been settled.
J. Such Agent will deliver to the purchaser a copy of the most
recent Prospectus applicable to the Note with or prior to any written offer of
Notes and the confirmation and payment by the purchaser of the Note. Such Agent
will confirm the purchase of such Note to the purchaser either by transmitting
to the Participants with respect to such Note a confirmation order or orders
through DTC's institutional delivery system or by mailing a written confirmation
to such purchaser.
Settlement Procedures Timetable:
For orders of Book-Entry Notes solicited by an Agent, as agent, and
accepted by the Issuer for settlement on the first Business Day after the sale
date, Settlement Procedure "A" through "J" set forth above shall be completed as
soon as possible but not later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
----------- ----
A 5:00 P.M. on the sale date
B 9:00 A.M. on the second Business Day next
succeeding the sale date
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C 2:00 P.M. on the second Business Day next
succeeding the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:00 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedure "A" shall be completed as soon as practicable but no
later than 6:00 p.m. on the sale date, and Settlement Procedures "B" and "C"
shall be completed as soon as practicable but no later than 2:00 P.M. may be, on
the first Business Day after the sale date. If the initial interest rate for a
Floating Rate Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement Procedures "B" and "C" shall
be completed as soon as such rate has been determined but no later than 11:00
A.M. and 12:00 Noon, respectively, on the second Business Day before the
settlement date. Settlement Procedure "H" is subject to extension of Fedwire
closing deadlines and in the other events specified in the SDFS operating
procedures in effect on the settlement date.
Fails
If settlement of a Book-Entry Note is rescheduled or cancelled, the
Issuer shall notify the Fiscal Agent, and upon receipt of such notice, the
Fiscal Agent will deliver to DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than 2:00 p.m., New York City
time, on the Business Day immediately preceding the scheduled settlement date.
If the Fiscal Agent has not entered an SDFS deliver order with respect
to a Book-Entry Note, then upon written request (which may be evidenced by
telecopy transmission) of the Issuer, the Fiscal Agent shall deliver to DTC,
through DTC's Participant Terminal System, as soon as practicable, but no later
than 2:00 p.m. on any Business Day, a withdrawal message instructing DTC to
debit such Note to the Fiscal Agent's participant account. DTC will process the
withdrawal message, provided that the Fiscal Agent's participant account
contains a principal amount of the Global Note representing such Note that is at
least equal to the principal amount to be debited. If withdrawal messages are
processed with respect to all the Book-Entry Notes represented by a Global Note,
the Fiscal Agent will xxxx such Global Note "cancelled" and destroy such Global
Note, make appropriate entries in the Fiscal Agent's records and send a
certificate of destruction to the Issuer. The CUSIP number assigned to such
Global Note shall, in accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If withdrawal messages are processed
with respect to one or more, but not all, of the Book-Entry Notes represented by
a Global Note, the Fiscal Agent will exchange such Global Note for two Global
Notes, one of which shall represent such Book-Entry Note or Notes and shall be
cancelled immediately after issuance and the other of which shall represent the
remaining
D-18
Book-Entry Notes previously represented by the surrendered Global Note and shall
bear the CUSIP number of the surrendered Global Note.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Presenting Dealer may enter an
SDFS deliver order through DTC's Participant Terminal System debiting such Note
to such Dealer's participant account and crediting such Note [free] to the
participant account of the Fiscal Agent and shall notify the Fiscal Agent and
the Issuer thereof. Thereafter, the Fiscal Agent, (i) will immediately notify
the Issuer, once the Fiscal Agent has confirmed that such Note has been credited
to its participant account, and the Issuer shall immediately transfer by Fedwire
(in immediately available funds) to the Presenting Dealer an amount equal to the
price of such Note which was previously sent by wire transfer to the account of
the Issuer maintained at _______________, and (ii) the Fiscal Agent will deliver
the withdrawal message and take the related actions described in the preceding
paragraph. Such debits and credits will be made on the settlement date, if
possible, and in any event not later than 5:00 p.m. on the following Business
Day. If the fail shall have occurred for any reason other than failure of the
Presenting Dealer to provide the Purchase Information to the Issuer or to
provide a confirmation to the purchaser, the Guarantor will reimburse the
Presenting Dealer on "cost of funds" for its loss of the use of funds during the
period when the funds were credited to the account of the Issuer.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Note, the Fiscal Agent will provide for the
authentication and issuance of a Global Note representing the other Book-Entry
Notes to have been represented by such Global Note and will make appropriate
entries in its records.
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