PERPETUAL TRUSTEES AUSTRALIA LIMITED
PUMA GLOBAL TRUST NO. [__]
[__] Class [__] Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
[ ]
[ ]
Ladies and Gentlemen:
[Perpetual Trustees Australia Limited (ABN 86 000 000 000), a limited liability
public company under the Corporations Law of New South Wales, Australia
("Perpetual")] in its capacity as trustee of PUMA Global Trust No. [__] (the
"Issuer Trustee") proposes to sell to the several Underwriters listed in
Schedule I hereto (the "Underwriters"), for whom you are acting as
representative (the "Representative"), [__] aggregate principal amount of Class
[__] Mortgage Backed [Floating Rate] Notes, which shall bear interest at
[three-month LIBOR] plus [__]% until the [quarterly] payment date in [__] and
[three-month LIBOR] plus [__]% thereafter (the "Class [__] Notes"), issued by
PUMA Global Trust No. [__] (the "Trust"). Each Class [__] Note will be secured
by the assets of the Trust in accordance with the Security Trust Deed (as
defined herein). The assets of the Trust means all assets held by the Issuer
Trustee from time to time as trustee of the Trust including, among other things,
a pool of variable and/or fixed rate residential housing loans (the "Housing
Loans") originated in the name of Perpetual, in its capacity as trustee of the
PUMA warehouse trust, including all monies received after the Closing Date (as
defined herein) with respect to payments of principal, interest [and rights
under certain insurance policies] with respect to the Housing Loans, any bank
account held by the Issuer Trustee and the rights of the Issuer Trustee under
the Basic Documents (as defined herein). The Trust will be created pursuant to
the Trust Deed, dated July 13, 1990 as amended, modified or supplemented from
time to time (the "Trust Deed") between Perpetual and the person referred to
therein as the Founder and a sub-fund notice, dated [__], from Macquarie
Securitisation Limited, ABN 16 003 297 336 (the "Manager") to the Issuer
Trustee, which sets forth specific provisions regarding the Trust and details
the provisions of the Class [__] Notes (the "Sub-Fund Notice"). The Note Trust
Deed, to be dated on or prior to the Closing Date (as defined herein), by and
among the Issuer Trustee, the Manager and [The Bank of New York, New York
Branch] (the "Note Trustee") provides for the issuance and registration of the
Class [__] Notes in accordance with the terms and conditions attached thereto
(the "Note Trust Deed"). [The Manager and Macquarie Bank Limited, ABN 46 008 583
542 ("Macquarie") are each a "Macquarie Party" and collectively are referred to
herein as the "Macquarie Parties.]"
The assets of the Trust will also secure under the Security Trust Deed among
other things, the A$ Class [__] Notes issued on the Closing Date and any other
A$ Notes (as defined in the Sub-Fund Notice) that may be issued after the
Closing Date.
The Class [__] Notes will be issued in an aggregate principal amount of [__]The
A$ Class [__] Notes issued on the Closing Date will be issued in an aggregate
principal amount of A$[__].
[The Manager has prepared and filed with the Securities and Exchange Commission
(the "Commission") in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement, including a
prospectus, relating to the Class [__] Notes. The registration statement as
amended at the time when it became effective, or, if a post-effective amendment
has been filed with respect thereto, as amended by such post-effective amendment
at the time of its effectiveness (including in each case information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430 or Rule 430A under the Securities Act) is referred to in
this Agreement as the "Registration Statement", the form of base prospectus
included in the Registration Statement as most recently filed with the
Commission is referred to as the "Base Prospectus" and the form of the
prospectus which includes the Base Prospectus and a prospectus supplement
describing the Class [ ] Notes and the offering thereof (the "Prospectus
Supplement") which prospectus is in the form first filed on or after the date of
this Agreement in accordance with Rule 424(b) is referred to in this Agreement
as the "Prospectus".]
When used in this Agreement, "Basic Documents" shall mean the Trust Deed, the
Sub-Fund Notice, the Class [__] Notes, the Security Trust Deed, the Note Trust
Deed, the Currency Swap(s) (as defined in the Sub-Fund Notice), the Redraw
Facility Agreement (as defined in the Sub-Fund Notice) and the Agency Agreement
(as defined in the Sub-Fund Notice) and any other contract, agreement or
instrument which is or is to be entered into by any of the [Macquarie Parties]
or the Issuer Trustee on or prior to the Closing Date or otherwise in connection
with any of the foregoing or this Agreement. To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Prospectus.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the [Macquarie Parties] and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale.
(a) The Issuer Trustee, at the direction of the Manager, agrees to sell the
Class [__] Notes to the several Underwriters as hereinafter provided,
and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter
stated, agrees to purchase, severally and not jointly, from the Issuer
Trustee the respective principal amount of Class [__] Notes set forth
opposite such Underwriter's name in Schedule I hereto at a price equal
to 100% of their principal amount.
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(b) [In connection with such purchase, the Manager will pay in immediately
available funds on the Closing Date to the Underwriters the commissions
payable under the letter agreement relating to fees and expenses
between the Manager and the Representative, dated as of [__] (the "Fee
Letter").]
(c) [__]The Representative agrees to pay for any expenses incurred by the
Macquarie Parties in connection with any "roadshow" presentation to
potential investors.
2. Offering.
The Manager and the Issuer Trustee understand that the Underwriters intend to
make a public offering in the United States (and to make non-public offerings in
other jurisdictions) of their respective portions of the Class [__] Notes, upon
the terms specified in the Prospectus, as soon after the parties hereto have
executed and delivered this Agreement as in the judgment of the Representative
is advisable, provided that the Registration Statement has become effective
prior to the execution of this Agreement.
3. Delivery and Payment.
Payment for the Class [__] Notes shall be made no later than [12:00 noon], New
York City time on [__], by wire transfer in immediately available funds to the
account specified by the Issuer Trustee to the Representative, or at such other
time on the same or such other date, not later than the [fifth] Business Day
thereafter, as the Representative and the Manager may agree upon in writing. The
time and date of such payment are referred to herein as the "Closing Date." As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City, Sydney or London.
Payment for the Class [__] Notes shall be made against delivery to the nominee
of The Depository Trust Company ("DTC") for the account of the Representative
and for the respective accounts of the several Underwriters of one or more fully
registered, global book-entry notes (the "Book-Entry Notes") representing [__]
in aggregate Principal Balance of Class [__] Notes, with any transfer taxes
payable in connection with the transfer to the Underwriters of the Class [__]
Notes duly paid by the Manager. The Book-Entry Notes will be made available for
inspection by the Representative at the office of [Mayer, Brown, Xxxx & Maw, at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000] not later than [1:00 p.m]., New York
City time, on the Business Day prior to the Closing Date. Interests in any
Book-Entry Notes will be held only in book entry form through DTC, except in the
limited circumstances described in the Prospectus.
4. Representations and Warranties of the [Macquarie Parties] and the Issuer
Trustee.
I. The Issuer Trustee represents and warrants to each Underwriter and the
[Macquarie Parties] as of the date of this Agreement and as of the Closing
Date, and agrees with each Underwriter and the [Macquarie Parties], that:
(a) since the respective dates as of which information is provided in the
Registration Statement and the Prospectus, there has not been any
material adverse change or any development involving a prospective
material adverse change in or affecting the general affairs, business,
prospects, management, results of operations, or condition (financial
or otherwise) of the Issuer Trustee
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except as disclosed in the Prospectus, which is material in the
context of the Issuer Trustee performing its obligations and duties
under the Class [__] Notes and each Basic Document to which it is or
is to be a party;
(b) it has been duly incorporated and is validly existing as a corporation
under the laws of the Commonwealth of Australia, with the power and
authority (corporate and other) to conduct its business as described in
the Prospectus and to issue the Class [__] Notes and to act as required
by each Basic Document to which it is or is to be a party and by law to
comply with the requirements of any legislation and subordinate
legislation (including, without limitation and to the extent relevant,
any Consumer Credit Code) and no other thing is required to be done by
the Issuer Trustee (including without limitation the making of any
filing or registration) in order to issue the Class [__] Notes or to
execute and act as required by each Basic Document to which it is or is
to be a party;
(c) it has been duly qualified for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
conducts any business so as to require such qualification, other than
where the failure to be so qualified and in good standing would not
have a material adverse effect on the transactions contemplated herein
or in the Basic Documents;
(d) this Agreement has been duly authorized, executed and delivered by the
Issuer Trustee;
(e) the Class [__] Notes have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, they will have been
duly executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Issuer Trustee, entitled to the
benefits provided by the Note Trust Deed and the Security Trust Deed,
subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws or general principles affecting the enforcement of
creditors rights generally and to general equitable principles. The
execution, delivery and performance by the Issuer Trustee of each of
the Basic Documents to which it either is, or is to be, a party and
this Agreement has been duly authorized by the Issuer Trustee, and,
when executed and delivered by it and, each of the other parties
thereto, each of the Basic Documents will constitute a legal, valid and
binding obligation of the Issuer Trustee, enforceable against it in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws or general principles affecting the
enforcement of creditors rights generally and to general equitable
principles;
(f) it is not, nor with the giving of notice or lapse of time or both will
be, in violation of or in default under, its (i) constitution or (ii)
any indenture, mortgage, deed of trust, loan agreement or any other
agreement or instrument to which it is a party or by which it or any of
its properties is bound, except in the case of (ii), for violations and
defaults which individually and in the aggregate would not have a
material adverse effect on the transactions contemplated herein or in
the Basic Documents; the issue and sale of the Class
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[__] Notes and the performance by it of all of the provisions of its
obligations under the Class [__] Notes, the Basic Documents and this
Agreement and the consummation of the transactions herein and therein
contemplated will not (I) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or any other
agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets of the Trust is subject; (II)
result in any violation of the provisions of its constitution or any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over it, or any of
its properties; or (III) result in the creation or imposition of any
lien or encumbrance upon any of its property pursuant to the terms of
any lien or encumbrance upon any of its property pursuant to the terms
of any indenture, mortgage, contract or other instrument other than
pursuant to the Basic Documents; and no consent, approval,
authorization, order, license, registration or qualification of or with
any such court or governmental agency or body is required by the Issuer
Trustee for the issue and sale of the Class [__] Notes or the
consummation by the Issuer Trustee of the transactions contemplated by
this Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
thereunder (the latter, including such applicable rules and
regulations, the "Trust Indenture Act") and as may be required under
state securities or "Blue Sky" laws in connection with the purchase and
distribution of the Class [__] Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus, there are
no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting the
Issuer Trustee or the Trust or, to which it is or may be a party or to
which it or any property of the Trust is or may be the subject, (i)
asserting the invalidity of this Agreement or of any of the Basic
Documents in relation to the Issuer Trustee, (ii) seeking to prevent
the issuance of the Class [__] Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the Basic
Documents by the Issuer Trustee, (iii) that may adversely affect the
United States Federal or Australian Federal or state income, excise,
franchise or similar tax attributes of the Class [__] Notes, (iv) that
could materially and adversely affect the Issuer Trustee's performance
of its obligations under, or the validity or enforceability of, this
Agreement or any of the Basic Documents against the Issuer Trustee or
(v) which could individually or in the aggregate reasonably be expected
to have a material adverse effect on the interests of the holders of
any of the Class [__] Notes;
(h) the representations and warranties of the Issuer Trustee contained in
the Basic Documents are true and correct in all material respects;
(i) to the Issuer Trustee's knowledge, no event has occurred which would
entitle the Manager to direct the Issuer Trustee to retire as trustee
of the Trust under clause [19] of the Trust Deed;
5
(j) It has not taken any corporate action and (to the best of its knowledge
and belief having made reasonable inquiry and investigation) no other
steps have been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator,
provisional liquidator or similar officer of it or of any or all of its
assets;
(k) subject to compliance with [Section 128F] of the Income Tax Assessment
Act (1936) (the "Australian Tax Act") in relation to payments under the
Class [__] Notes, no withholding or deduction for any taxes, duties,
assessments or governmental charges of whatever nature will be imposed
or made for or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind, levied,
collected, withheld or assessed by or within, the Commonwealth of
Australia, in connection with the authorization, execution or delivery
of any of the Basic Documents to which it is or is to be a party or
with the authorization, execution, issue, sale or delivery of the Class
[__] Notes or the performance by the Issuer Trustee of any of its
obligations under the Basic Documents to which it is or is to be a
party or the Class [__] Notes, other than any stamp duty payable with
respect to the execution of the Basic Documents;
(l) the Class [__] Notes and the obligations of the Issuer Trustee under
the Note Trust Deed will be secured (pursuant to the Security Trust
Deed) by a first floating charge over the assets of the Trust subject
to the Prior Interest (as defined in the Security Trust Deed); and
(m) no event has occurred or circumstances arisen which, had the Class [__]
Notes already been issued, would (whether or not with the giving of
notice or direction and/or the passage of time and/or the fulfillment
of any other requirement) oblige it to retire as Issuer Trustee or
constitute grounds for its removal as Issuer Trustee under any Basic
Document or constitute an Event of Default (as defined in the Security
Trust Deed).
II. The Manager represents and warrants to each Underwriter and the Issuer
Trustee, as of the date of this Agreement and as of the Closing Date, that:
(a) no order preventing or suspending the use of any preliminary prospectus
has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with
the Securities Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided
that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Manager in writing by such
Underwriter directly or through the Representative expressly for use
therein;
(b) the Registration Statement has been declared effective under the
Securities Act by the Commission; no stop order suspending the
effectiveness of the
6
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Manager,
threatened by the Commission; and the Registration Statement and the
Prospectus (as amended or supplemented if the Manager shall have
furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act and do not and will not, as
of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus, as amended or supplemented, if applicable, at the
Closing Date will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Note Trustee under the Trust Indenture
Act, (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Manager in writing by such
Underwriter directly or through the Representative expressly for use
therein, and (iii) the information under the heading "Prepayment and
Yield Considerations" in the Registration Statement and the Prospectus
Supplement;
(c) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Manager, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, which is material in
the context of the Manager performing its obligations and duties under
each Basic Document to which it is or is to be a party;
(d) the Manager is a corporation duly incorporated and validly existing
under the Corporations Xxx 0000 of the Commonwealth of Australia, the
Manager has the power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement and the
Basic Documents to which it is a party and to carry out the
transactions contemplated by such Basic Documents; the Manager has been
duly qualified or licensed for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require
such qualification or licensing, other than where the failure to be so
qualified or licensed or in good standing would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents;
(e) this Agreement has been duly authorized, executed and delivered by the
Manager;
7
(f) each of the Basic Documents to which it is or is to be a party has been
duly authorized by it, the Note Trust Deed has been duly qualified
under the Trust Indenture Act and, when executed and delivered by the
Manager and each of the other parties thereto, each of the Basic
Documents will constitute a legal, valid and binding obligation of the
Manager, enforceable against the Manager in accordance with its terms,
subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors rights generally
and to general equitable principles; and the Class [__] Notes and the
Basic Documents each will conform to the descriptions thereof in the
Prospectus;
(g) the Manager is not, nor with the giving of notice or lapse of time or
both would it be, in violation of or in default under, its constitution
or any indenture, mortgage, deed of trust, loan agreement or any other
agreement or instrument to which it is a party or by which it or any of
its properties is bound, except for violations and defaults which
individually and in the aggregate would not have a material adverse
effect on the transactions contemplated herein or in the Basic
Documents; the issue and sale of the Class [__] Notes and the
performance by the Manager of all of the provisions of its obligations
under the Class [__] Notes, the Basic Documents and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or any other agreement or instrument to
which the Manager is a party or by which the Manager is bound or to
which any of the property or assets of the Manager is subject, nor will
any such action result in any violation of the provisions of the
constitution of the Manager or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Manager, or any of its properties; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Class [__] Notes or the
consummation by the Manager of the transactions contemplated by this
Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act
and as may be required under state securities or "Blue Sky" laws of the
United States in connection with the purchase and distribution of the
Class [__] Notes by the Underwriters;
(h) other than as set forth or contemplated in the Prospectus, there are no
legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Manager, threatened against or
affecting the Manager or its properties or, to which the Manager is or
may be a party or to which the Manager or any property of the Manager
is or may be the subject, (i) asserting the invalidity of this
Agreement or of any of the Basic Documents, (ii) seeking to prevent the
issuance of the Class [__] Notes or the consummation of any of the
transactions contemplated by this Agreement or any of the Basic
Documents, (iii) that may adversely affect the United States Federal or
8
Australian income, excise, franchise or similar tax attributes of the
Class [__] Notes, (iv) that could materially and adversely affect the
performance of the Manager of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents or (v)
which could individually or in the aggregate reasonably be expected to
have a material adverse effect on the interests of the holders of the
Class [__] Notes or the marketability of the Class [__] Notes; and
there are no statutes, regulations, contracts or other documents that
are required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(i) the representations and warranties of the Manager contained in the
Basic Documents are true and correct in all material respects;
(j) [PricewaterhouseCoopers ("PWC")] are independent public accountants
with respect to the Manager within the meaning of the Securities Act;
(k) the Manager owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all Australian
and United States federal, state, local and other governmental
authorities (including United States regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to perform its obligations under this
Agreement and the Basic Documents, and the Manager has not received any
actual notice of any proceeding relating to revocation or modification
of any such license, permit, certificate, consent, order, approval or
other authorization; and the Manager is in compliance with all laws and
regulations necessary for the performance of its obligations under this
Agreement and the Basic Documents;
(l) no event has occurred which would entitle the Manager to direct
[Perpetual] to retire as trustee of the Trust under clause [19] of the
Trust Deed;
(m) the Manager has not taken any corporate action nor (to the best of its
knowledge and belief) have any other steps been taken or legal
proceedings been started or threatened against the Manager for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator
or similar officer of it or of any or all of its assets;
(n) no stamp or other duty is assessable or payable, and, subject only to
compliance with [Section 128F] of the Australian Tax Act in relation to
payments under the Class [__] Notes, no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction,
in connection with the authorization, execution or delivery of the
Basic Documents to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Class [__] Notes and the
performance
9
of the Manager's obligations under the Basic Documents to which it is,
or is to be, a party and the Class [__] Notes except for any of the
Basic Documents on which stamp duty is payable;
(o) no event has occurred or circumstances arisen which, had the Class [__]
Notes already been issued, would (whether or not with the giving of
notice and/or the passage of time and/or the fulfillment of any other
requirement) constitute an Event of Default (as defined in the Security
Trust Deed).
III. [Macquarie represents and warrants to each Underwriter and the Issuer
Trustee, as of the date of this Agreement and as of the Closing Date, that:
(a) Macquarie is a company incorporated in the Australian Capital
Territory;
(b) this Agreement has been duly authorized, executed and delivered by
Macquarie;
(c) the representations and warranties of Macquarie contained in the Basic
Documents are true and correct in all material respects; and
(d) since the respective dates as of which information is provided in the
Registration Statement and the Prospectus, there has been no material
adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise) of Macquarie,
which is material in the context of Macquarie performing its
obligations and duties under each Basic Document to which it is or is
to be a party.]
5. Covenants and Agreements.
I. The Manager covenants and agrees with each of the several Underwriters as
follows:
(a) to file, if required, the final Prospectus with the Commission within
the time periods specified by [Rule 424(b)] and [Rule 430A] under the
Securities Act, and to furnish copies of the Prospectus to the
Underwriters, provided that the distribution of such copies shall be at
the Underwriters' expense, in New York City prior to [10:00 a.m]., New
York City time, on the Business Day next succeeding the date of this
Agreement in such quantities as the Representative may reasonably
request;
(b) to deliver, at the expense of the Manager, to the Representative upon
its request up to [5 ]signed copies of the Registration Statement and
each post-effective amendment thereto, in each case including exhibits,
and to each other Underwriter a conformed copy of the Registration
Statement and each post-effective amendment thereto, in each case
without exhibits and, during the period mentioned in paragraph (e)
below, to each of the Underwriters, as many copies of the Prospectus
(including all amendments and supplements thereto) as the
Representative may reasonably request, provided that the distribution
of such copies shall be at the Underwriter's expense;
(c) before filing any amendment or supplement to the Registration Statement
or the Base Prospectus and the Prospectus Supplement, after the
Registration Statement became effective, to furnish to the
Representative a copy of the
10
proposed amendment or supplement for review and not to file any such
proposed amendment or supplement to which the Representative reasonably
objects;
(d) to advise the Representative promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement has been
filed or becomes effective, (ii) when any amendment to the Prospectus
has been filed and to furnish the Representative with copies thereof,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any [preliminary
prospectus] or the Prospectus or the initiation or threatening of any
proceeding for that purpose, (v) of the occurrence of any event, within
the period referenced in paragraph (e) below, as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, and (vi) of the receipt by the Manager of any notification
with respect to any suspension of the qualification of the Class [__]
Notes for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order, or of any order
preventing or suspending the use of [any preliminary prospectus or] the
Prospectus, or of any order suspending any such qualification of the
Class [__] Notes, or notification of any such order thereof and, if
issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the public
offering of the Class [__] Notes, as in the opinion of counsel for the
Underwriters, a prospectus relating to the Class [__] Notes is required
by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to
amend the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend the
Prospectus to comply with law, forthwith to prepare and furnish, at the
expense of the Manager, to the Underwriters and to the dealers (whose
names and addresses the Representative will furnish to the Manager) to
which Class [__] Notes may have been sold by the Representative on
behalf of the Underwriters and to any other dealers upon request, such
amendments to the Prospectus as may be necessary so that the statements
in the Prospectus as so amended will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Class [__] Notes for offer and sale under
the securities or Blue Sky laws of such states or territories of the
United States as the Representative shall reasonably request and to
continue such qualification in effect so long as reasonably required
for distribution of the Class [__]
11
Notes; provided that the Manager shall not be required to file a
general consent to service of process in any jurisdiction;
(g) to make generally available to the holders of the Class [__] Notes and
to the Representative as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Trust occurring after the effective date of the
Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(h) so long as the Class [__] Notes are outstanding, to furnish to the
Representative (i) copies of each certificate, the annual statements of
compliance and the annual independent certified public accountant's
audit report on the financial statements furnished to the Issuer
Trustee pursuant to the Basic Documents by first class mail as soon as
practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic
Documents, (iii) on each day preceding a [Quarterly] Payment Date or as
soon thereafter as practicable, notice by telex or facsimile to the
Representative of the Note Factor (as defined in the note conditions
set out in Schedule 2 of the Note Trust Deed, the "Note Conditions")
(iv) copies of all reports or other communications (financial or other)
furnished to holders of the Class [__] Notes, and copies of any reports
and financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities
exchange in connection with the Class [__] Notes, and (v) from time to
time such other information concerning the Trust or the Manager as the
Representative may reasonably request;
(i) to the extent, if any, that the ratings provided with respect to the
Class [__] Notes by [Xxxxx'x Investors Service, Inc., Standard & Poor's
Ratings Group, A Division of The XxXxxx-Xxxx Companies, Inc. and Fitch
Ratings] (the "Rating Agencies") are conditional upon the furnishing of
documents or the taking of any other action by the Manager, the Manager
shall use its best efforts to furnish such documents and take any other
such action;
(j) to assist the Representative to make arrangements with DTC, Euroclear
and Clearstream, Luxembourg concerning the issue of the Class [__]
Notes and related matters;
(k) to not take, or cause to be taken, any action and will not knowingly
permit any action to be taken which it knows or has reason to believe
would result in the Class [__] Notes not being assigned the ratings
referred to in Section 6(m) below;
(l) to pay all fees, costs and expenses incident to the performance of its
obligations hereunder, including commissions payable, in immediately
available funds to the Underwriters for the performance of their
obligations under this Agreement whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is
terminated, as set forth in the Fee Letter; provided that such payments
shall be made without prejudice to
12
the rights or remedies of the Manager related to any termination of
this Agreement; and
(m) to cause the charges created by or contained in the Security Trust Deed
to be registered within all applicable time limits in accordance with
the [Australian Corporations Act 2001] (and any regulations related
thereto).
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the [Macquarie Parties] as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of
the Class [__] Notes pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the [Macquarie Parties] promptly after
it becomes actually aware of any matter which would make any of its
representations and warranties in this Agreement untrue if given at any
time prior to payment being made to the Issuer Trustee on the Closing
Date and take such steps as may be reasonably requested by the
Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added or
similar tax, fee or duty (including court fees) in relation to the
execution of, or any transaction carried out pursuant to, the Basic
Documents or in connection with the issue and distribution of the Class
[__] Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable efforts to procure satisfaction on or before the
Closing Date of the conditions referred to in Section 6 below and, in
particular (i) the Issuer Trustee shall execute those of the Basic
Documents not executed on the date hereof on or before the Closing
Date, and (ii) the Issuer Trustee will assist the Representative to
make arrangements with DTC, Euroclear and Clearstream, Luxembourg
concerning the issue of the Class [__] Notes and related matters;
(e) to perform all of its obligations under each of the Basic Documents to
which it is a party which are required to be performed prior to or
simultaneously with the closing on the Closing Date;
(f) not to take, or cause to be taken, any action or knowingly permit any
action to be taken which it knows or has reason to believe would result
in the Class [__] Notes not being assigned the ratings referred to in
Section 6(m) below; and
(g) not, prior to or on the Closing Date, amend the terms of any Basic
Document nor execute any of the Basic Documents other than in the
agreed form without the consent of the Underwriters.
6. Conditions to the Obligations of the Underwriters.
The several obligations of the Underwriters hereunder are subject to the
performance by the [Macquarie Parties] and the Issuer Trustee of their
obligations hereunder and to the following additional conditions:
13
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than [5:00 p.m.], New York City time, on the date hereof; and no
stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment shall be in effect, and no proceedings
for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been filed with the Commission
pursuant to [Rule 424(b)] within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with [Section 5(I)(a)] hereof; and all requests for
additional information by the Representative with respect thereto shall
have been complied with to the satisfaction of the Representative;
(b) the representations and warranties of the [Macquarie Parties] and the
Issuer Trustee contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and the
representations and warranties of the [Macquarie Parties] in the Basic
Documents will be true and correct on the Closing Date; and each
[Macquarie Party] and the Issuer Trustee shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder and under the Basic Documents at or prior to the Closing
Date;
(c) since the respective dates as of which information is given in the
Prospectus, there shall not have been any material adverse change or
any development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
each Macquarie Party, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment of
the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Class [__] Notes on the
Closing Date on the terms and in the manner contemplated in the
Prospectus;
(d) the Representative shall have received on and as of the Closing Date a
certificate of an executive officer of each [Macquarie Party], with
specific knowledge about financial matters of such [Macquarie Party],
satisfactory to the Representative to the effect set forth in
subsections (a) through (c) of this Section;
(e) [Xxxxxxx Xxx], Australian counsel for Macquarie and the Manager, shall
have furnished to the Representative their written opinion, dated on or
prior to the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(f) [Xxxxxxx Xxx], Australian tax counsel for Macquarie and the Manager
shall have furnished to the Representative their written opinion, dated
on or prior to the Closing Date, in form and substance satisfactory to
the Representative, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
14
(g) the Representative on or prior to the Closing Date shall have received
letters, dated the date thereof, from (i) [PWC], in form and substance
satisfactory to the Representative and counsel for the Underwriters,
confirming that they are independent public accountants within the
Securities Act and the applicable rules and regulations related thereto
and stating in effect that they determine that certain information of
an accounting, financial or statistical nature set forth in the
Registration Statement and the Prospectus (and any amendments thereto),
agrees with the accounting records of the Manager, excluding any
questions of legal interpretation, and (ii) [PWC], in form and
substance satisfactory to the Representative and counsel for the
Underwriters, stating in effect that they have performed certain
specified proceedings with respect to the Housing Loans to be acquired
by the Trust on the Closing Date;
(h) [XxXxx Xxxxxx LLP], special United States counsel to the Underwriters,
shall have furnished to the Underwriters their written opinion, dated
the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(i) [Mayer, Brown, Xxxx & Maw], United States counsel for Macquarie and the
Manager, shall have furnished to the Representative their written
opinion, dated on or before the Closing Date, in form and substance
satisfactory to the Representative, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters, to the effect that:
(i) The Note Trust Deed has been duly qualified under the Trust
Indenture Act;
(ii) To the best of such counsel's knowledge, there are no material
contracts, indentures, or other documents of a character
required to be described or referred to under either the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto;
(iii) The Trust is not, and will not as a result of the offer and
sale of the Class [__] Notes as contemplated in this
Agreement, or as a result of the consummation of the
transactions contemplated by the terms of the Basic Documents
become, required to be registered as an "investment company",
under the Investment Company Act of 1940, as amended;
(iv) No consent, approval, authorization or order of any United
States federal court or governmental agency or body is
required (i) for the consummation by Macquarie or the Manager
of the transactions contemplated by the terms of the Basic
Documents or (ii) for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Class [__] Notes by the Issuer Trustee, except,
in each case, (a) such as have been obtained under the
Securities Act and the Trust Indenture Act and (b) such as
15
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and the offer and sale of the
Class [__] Notes, as to which such counsel will express no
opinion;
(v) The Registration Statement has become effective under the
Securities Act as of the date and time specified in such
opinion, and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued or threatened under [Section 8(d)]
of the Securities Act;
(vi) The Registration Statement and the Prospectus, as of their
respective effective or issue date, other than financial or
statistical information contained therein, complied as to form
in all material respects with the requirements of the
Securities Act and the applicable rules and regulations
thereunder;
(vii) Such counsel shall have no reason to believe that the
Registration Statement, as of the effective date thereof or as
of the date of such opinion, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein not misleading or that the Prospectus, as of the date
thereof or as of the date of such opinion, contained or
contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, provided that such
counsel shall express no opinion as to the financial
statements or other financial data contained in the
Registration Statement or the Prospectus;
(viii) The statements in the Prospectus Supplement under the caption
"Description of the Offered Notes" insofar as it purports to
summarize certain terms of the Class [__] Notes and the
applicable Basic Documents, constitute a fair summary of the
provisions purported to be summarized; and
(ix) To the extent that the execution and delivery of this
Agreement, is a matter to be determined under New York law,
this Agreement has been duly and validly executed and
delivered and constitutes the legal, valid and binding
obligation of each of Macquarie, the Issuer Trustee and the
Manager, provided that such counsel shall express no opinion
regarding any severability provision in this Agreement or
regarding the legal, valid and binding effect or the
enforceability of any indemnification provisions in this
Agreement to the extent that any such provisions may be deemed
to cover matters under the federal securities laws.
(j) [Mayer, Brown, Xxxx & Maw], United States federal income tax counsel
for [Macquarie] and the Manager, shall have furnished to the
Representative their written opinion, dated on or prior to the Closing
Date, in form and substance satisfactory to the Representative, and
such counsel shall have received such
16
papers and information as they may reasonably request to enable them to
pass upon such matters;
(k) [Mallesons Xxxxxxx Xxxxxx] counsel for the Issuer Trustee, the Security
Trustee and the Note Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(l) the Representative shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in
connection with the transaction described in this Agreement which
opinion is not otherwise described in this Agreement allowing the
Representative to rely on such opinion as if it were addressed to the
Representative;
(m) at the Closing Date, the Class [__] Notes shall have been rated ["AAA"
by Standard & Poor's Ratings Group, A Division of The XxXxxx-Xxxx
Companies, Inc. and Fitch Ratings and "Aaa" by Xxxxx'x Investors
Service, Inc.], as evidenced by letters from the Rating Agencies;
(n) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
(o) on or prior to the Closing Date, the Macquarie Parties and the Issuer
Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably
request; and
(p) the Representative shall have received evidence satisfactory to it and
its counsel that on or prior to the Closing Date A$ Class [__] Notes in
the principal amount required to be issued on the Closing Date in
accordance with the terms thereof have been duly authorized and issued
pursuant to the Basic Documents.
7. Indemnification and Contribution.
(a) Each of [Macquarie] and the Manager, jointly and severally, agrees to
indemnify and hold harmless each Underwriter, each affiliate of an
Underwriter that assists such Underwriter in the distribution of the
Class A Notes, and each person, if any, that controls any Underwriter
within the meaning of either [Section 15] of the Securities Act or
[Section 20] of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted) caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended
if the Manager shall have furnished any amendments thereto) (other than
to the extent any losses, claims, damages or liabilities arise as a
result of any information under the heading "Prepayment and Yield
Considerations"), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not
17
misleading, except (i) insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with information relating to any Underwriter furnished to a [Macquarie
Party] in writing by such Underwriter directly or through the
Representative expressly for use therein or (ii) that such indemnity
with respect to the Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling any Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased
the Class [__] Notes which are the subject thereof if such person did
not receive a copy of the Prospectus (as amended) at or prior to the
confirmation of the sale of such Class [__] Notes to such person in any
case where such delivery is required by the Securities Act and the
untrue statement or omission of a material fact contained in such
Prospectus was corrected in the Prospectus (as amended).
(b) To the extent that any payment of damages by a [Macquarie Party]
pursuant to [subsection 7(a)] above is determined to be a payment of
damages pursuant to [Prudential Standard APS 120 "Funds Management and
Securitisation", paragraph 15 of Guidance Note AGN 120.3, "Purchase and
Supply of Assets (including Securities issued by SPVs)", being Guidance
Note to Prudential Standard APS 120 "Funds Management and
Securitisation" or any successor thereto, such payment shall be subject
to the terms therein (or the terms of any equivalent provision in any
replacement of Prudential Standard APS 120 "Funds Management and
Securitisation").]
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and [Macquarie] and each
person that controls any of the [Macquarie Parties] or the Issuer
Trustee within the meaning of [Section 15] of the Securities Act and
[Section 20] of the Exchange Act to the same extent as the foregoing
indemnity from the [Macquarie Parties] or the Issuer Trustee to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to a [Macquarie Party] in writing by such
Underwriter directly or through the Representative expressly for use in
the Registration Statement, the Prospectus, or any amendment thereto.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant
to subsections (a) or (c) above, such person (the "Indemnified Person")
shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate
in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary, (ii) the
18
Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties)
include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the
distribution of the Class [__] Notes, and such control persons of
Underwriters shall be designated in writing by the Representative and
any such separate firm for the Manager, its directors, its officers who
sign the Registration Statement, the Issuer Trustee and [Macquarie] and
such control persons of any of the [Macquarie Parties] or the Issuer
Trustee shall be designated in writing by the Manager. The Indemnifying
Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by
the third sentence of this subsection (d), the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior
to the date of such settlement. No Indemnifying Person shall, without
the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which
any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless
such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(e) If the indemnification provided for in subsections (a) or (c) above is
unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying
Person under such subsection, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the [Macquarie Parties] and the Issuer
Trustee on the one hand, and the Underwriters on the other, from the
offering of the Class [__] Notes, and (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
[Macquarie Parties] and the Issuer Trustee on the one hand, and of the
Underwriters on the other, in connection
19
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the [Macquarie
Parties] and the Issuer Trustee on the one hand, and the Underwriters
on the other, shall be deemed to be in the same respective proportions
as the net proceeds from the offering (before deducting expenses)
received by the [Macquarie Parties] and the Issuer Trustee and the
total underwriting discounts and the commissions received by the
Underwriters in respect thereof respectively bear to the aggregate
public offering price of the Class [__] Notes. The relative fault of
the [Macquarie Parties] and the Issuer Trustee on the one hand and the
Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the [Macquarie Parties] or the
Issuer Trustee or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The [Macquarie Parties], the Issuer Trustee and the Underwriters agree
that it would not be just and equitable if contribution pursuant to
this Section were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in this subsection
(e) shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this [Section 7], in no event shall
an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Class [__] Notes
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section [11(f)] of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section [7]
are several in proportion to the respective principal amount of Class
[__] Notes set forth opposite their names in Schedule I hereto, and not
joint.
The remedies provided for in this Section [7] are not exclusive and
shall not limit any rights or remedies which may otherwise be available
to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section [7]
and the representations and warranties of the [Macquarie Parties], the
Issuer Trustee and the Underwriters set forth in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the [Macquarie
20
Parties] or the Issuer Trustee, its officers or directors or any other
person controlling the Macquarie Parties or the Issuer Trustee and
(iii) acceptance of and payment for any of the Class [__] Notes.
8. Termination.
Notwithstanding anything herein contained, this Agreement may be terminated in
the absolute discretion of the Representative, by notice given to the Manager,
if after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by the New York Stock Exchange, (ii) trading of any securities of or guaranteed
by any of the [Macquarie Parties] or the Issuer Trustee shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York, Sydney, Australia or
London, England shall have been declared by either United States Federal, New
York State, Commonwealth of Australia, New South Wales State or related United
Kingdom authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of the Representative, is material and adverse and
which, in the judgment of the Representative, makes it impracticable to market
the Class [__] Notes on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness of Agreement; Default of Underwriters.
This Agreement shall become effective upon the later of (x) execution and
delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall fail or refuse
to purchase Class [__] Notes which it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of Class [__] Notes which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Class [__]
Notes to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Class [__] Notes set
forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Class [__] Notes set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representative
may specify, to purchase the Class [__] Notes which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Class [__] Notes that any
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section [9] by an amount in excess of one-ninth of such principal amount
of Class [__] Notes without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Class [__] Notes which it or they have agreed to purchase hereunder on such
date, and the aggregate principal amount of Class [__] Notes with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Class [__] Notes to be purchased on such date, and arrangements
satisfactory to the Representative and the Manager for the purchase of such
Class [__] Notes are not made within [36] hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Manager. In any such case either you or the Manager shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may
21
be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Expenses upon Termination.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the [Macquarie Parties] or the
Issuer Trustee to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason any of the [Macquarie Parties] or the
Issuer Trustee shall be unable to perform its obligations under this Agreement
or any condition of the Underwriters' obligations cannot be fulfilled,
[Macquarie] agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Fee Letter.
Notwithstanding any term or provision herein in relation to fees and expenses,
any obligation of reimbursement of such fees or expenses by a [Macquarie Party]
shall be subject to, and where applicable, superceded by, the terms and
provisions of the Fee Letter.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process.
[Each of the Macquarie Parties] and the Issuer Trustee hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. [Each of the
Macquarie Parties] irrevocably appoints ]Macquarie Equities (USA) Inc., 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000], and the Issuer Trustee
irrevocably appoints [CT Corporation, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000], to act as authorized agents for the [Macquarie Parties] and the
Issuer Trustee, respectively, in the Borough of Manhattan in The City of New
York upon which process may be served in any such suit or proceeding, and agrees
that service or process upon such agent, and written notice of said service to
it by the person servicing the same to the address provided in Section [19],
shall be deemed in every respect effective service of process upon it in any
such suit or proceeding. Each of the [Macquarie Parties] and the Issuer Trustee
further agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for so long
as the Class [__] Notes remain outstanding.
The obligation of any of the [Macquarie Parties] or the Issuer Trustee in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in
a currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
[each of the Macquarie Parties] and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
22
13. Foreign Taxes.
All payments to be made by the Issuer Trustee and the [Macquarie Parties]
hereunder shall be made without withholding or deduction for or on account of
any present or future taxes, duties or governmental charges whatsoever unless
the Issuer Trustee or such [Macquarie Party], as applicable, is compelled by law
to deduct or withhold such taxes, duties or charges. In that event, the Issuer
Trustee or such [Macquarie Party], as applicable, shall pay such additional
amounts as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been received
if no withholding or deduction had been made.
14. Waiver of Immunities.
To the extent that any of the Issuer Trustee or [any of the Macquarie Parties]
or any of their properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any respect thereof, from setoff or counterclaim, from
the jurisdiction of any court, from service or process, from attachment upon or
prior to judgment, from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, the Issuer Trustee and each of the [Macquarie Parties], as
applicable, hereby irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity and consents to such relief and enforcement.
15. Judgment Currency.
If any judgment or order in any legal proceeding against any of the Issuer
Trustee or any of the [Macquarie Parties] is given or made for any amount due
hereunder and such judgment or order is expressed and paid in a currency (the
"Judgment Currency") other than United States dollars and there is any variation
as between (i) the rate of exchange (the "Judgment Rate") at which the United
States dollar amount is converted into Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange (the "Market Rate") at which
the person to whom such amounts is paid (the "Payee") is able to purchase United
States dollars with the amount of the Judgment Currency actually received by the
holder, then the difference, expressed in United States dollars, between such
amount calculated at the Judgment Rate and such amount calculated at the Market
Rate shall be indemnified (a) if negative by the Issuer Trustee and the
[Macquarie Parties], as applicable, to the Payee and (b) if positive by the
Payee to the Issuer Trustee and the [Macquarie Parties], as applicable. The
foregoing indemnity shall constitute separate and independent obligations of the
Issuer Trustee and the [Macquarie Parties] or the Payee, as the case may be, and
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate or exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
16. Selling Restrictions.
(a) No prospectus in relation to the Class [__] Notes has been lodged with,
or registered by, the Australian Securities and Investments Commission
or the Australian Stock Exchange Limited. Accordingly, each of the
Underwriters,
23
severally and not jointly, represents and agrees that it has not
offered and will not offer, for issue, and has not invited and will not
invite applications for the issue of the Class [__] Notes or offer the
Class [__] Notes for sale or invite offers to purchase the Class A
Notes to, a person, unless the minimum amount payable to the relevant
Underwriter for the Class [__] Notes, after disregarding any amount
paid or payable or lent by the relevant Underwriter or any associate
(as determined under sections [10] to [17] of the Australian
Corporations Act 2001) of that Underwriter, on acceptance of the offer
by that person is at least [A$500,000] (or the equivalent thereof in
any other currency).
(b) Each Underwriter, severally and not jointly, agrees with the Issuer
Trustee that, within [30] days of the date of this Agreement, it will
offer the Class [__] Notes for sale, or invite or induce offers to buy
the Class [__] Notes, by:
(i) making the Prospectus available for inspection on a Bloomberg
source and inviting potential investors to access the
Prospectus available on that Bloomberg source; or
(ii) making hard copies of the Prospectus for the Class[ ] Notes
available for collection from the Underwriter in at least its
principal office in New York City or London and, in the case
of purchasers in the United States, by sending or giving
copies of the Prospectus to those purchasers.
(c) Each Underwriter agrees that it will not sell Class [__] Notes to, or
invite or induce offers for Class [__] Notes from:
(i) [any associate of the Issuer Trustee or a Macquarie Party
specified in Schedule II or Schedule III]; or
(ii) any other associate from time to time specified in writing to
the Underwriter by the Issuer Trustee or a Macquarie Party.
(d) Each Underwriter, severally and not jointly, agrees to: (i) provide
written advice to the Issuer Trustee and the Manager within [40] days
of the issue of the Class [__] Notes specifying that it has complied
with section 16(b); and (ii) cooperate with reasonable requests from
the Issuer Trustee for information for the purposes of assisting the
Issuer Trustee to demonstrate that the public offer test under section
[128F] of the Australian Tax Act has been satisfied in respect of the
Class [__] Notes; provided that no Underwriter shall be obliged to
disclose any information the disclosure of which would be contrary to
or prohibited by any relevant law, regulation or directive.
(e) Each Underwriter (severally and not jointly) agrees that:
(i) it has not offered or sold and, prior to the expiry of the
period of six months from the Closing Date, will not offer or
sell any Class [__] 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
24
their businesses or who it is reasonable to expect will
acquire, hold, manage or dispose of investments (as principal
or agent) for the purposes of their businesses, or otherwise
in circumstances that have not resulted and will not result in
an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995,
as amended;
(ii) it has complied and will comply with all applicable provisions
of the Financial Services and Markets Xxx 0000 with respect to
anything done by it in relation to the Class [__] Notes in,
from or otherwise involving the United Kingdom;
(iii) it is a person of a kind described in Articles 19 or 49 of the
Financial Services and Markets Xxx 0000 (Financial Promotion)
Order 2001, as amended; and
(iv) it has only communicated or caused to be communicated, and
will only communicate or cause to be communicated, in the
United Kingdom any document received by it in connection with
the issue of the Class [__] Notes to a person who is of a kind
described in Articles 19 or 49 of the Financial Services and
Markets Xxx 0000 (Financial Promotion) Order 2001, as amended,
or who is a person to whom such document may otherwise
lawfully be communicated.
(f) Each Underwriter, severally and not jointly, acknowledges that no
action has been taken to permit an offering of the Class [__] Notes in
any jurisdiction outside the United States where any action would be
required to be taken for that purpose. Each Underwriter will comply
with all applicable securities laws and regulations in each
jurisdiction in which it purchases, offer, sells or delivers Class [__]
Notes or has in its possession or distributes the Prospectus or any
other offering material, in all cases at its own expense.
17. Certain Matters Relating to the Issuer Trustee.
The Issuer Trustee enters into this Agreement only in its capacity as trustee of
the Trust and in no other capacity. A liability arising under or in connection
with this Agreement is limited to and can be enforced against the Issuer Trustee
only to the extent to which it can be satisfied out of assets of the Trust out
of which the Issuer Trustee is actually indemnified for such liability. This
limitation of the Issuer Trustee's liability described in this Section applies
despite any other provision of this Agreement to the contrary and extends to all
liabilities and obligations of the Issuer Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction related to
this Agreement.
(a) The parties other than the Issuer Trustee may not xxx the Issuer
Trustee in respect of liabilities incurred by the Issuer Trustee acting
in its capacity as Issuer Trustee of the Trust in any capacity other
than as trustee of the Trust, including seeking the appointment of a
receiver (except in relation to the assets of the Trust) or a
liquidator, an administrator or any other similar person to the Issuer
Trustee or prove in any liquidation, administration or arrangements of
or affecting the Issuer Trustee (except in relation to the assets of
the Trust).
25
(b) The provisions of this Section [17] shall not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Trust Deed, this Agreement or any other
Basic Document or by operation of law there is a reduction in the
extent of the Issuer Trustee's indemnification or exoneration out of
the assets of the Trust as a result of the Issuer Trustee's fraud,
negligence or willful default.
(c) It is acknowledged that the Relevant Parties (as defined in the Note
Conditions) are responsible under the Basic Documents for performing a
variety of obligations relating to the Trust. No act or omission of the
Issuer Trustee (including any related failure to satisfy its
obligations under the Basic Documents) will be considered fraudulent,
negligent or a willful default for the purpose of this Agreement to the
extent to which the act or omission was caused or contributed to by any
failure by any Relevant Party or any other person who provides services
in respect of the Trust to fulfill its obligations relating to the
Trust or by any other act or omission of a Relevant Party or any other
such person regardless of whether the act or omission is purported to
be on behalf of the Issuer Trustee.
(d) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Agreement has authority to act on behalf of the
Issuer Trustee in a way that exposes the Issuer Trustee to any
liability in excess of that contemplated in this Section [17], and no
act or omission of any such person will be considered the Issuer
Trustee's fraud, negligence or willful default.
(e) The Issuer Trustee is not obligated to do anything or refrain from
doing anything under or in connection with this Agreement (including
incur a liability) unless the Issuer Trustee's liability is limited in
the same manner as set out in this Section [17].
18. Successors.
This Agreement shall inure to the benefit of and be binding upon the [Macquarie
Parties], the Issuer Trustee, the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Class [__]
Notes, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Class [__] Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
19. Actions by Representative; Notices.
Any action by the Underwriters hereunder may be taken by the Representative on
behalf of the Underwriters, and any such action taken by the Representative
shall be binding upon and enforceable against the Underwriters. All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to [__]. Notices
to the Manager shall be given to it at Macquarie Securitisation Limited, [Level
23, 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, Facsimile: +61 2
8232-4755, Attention: The Treasurer]; to the Issuer Trustee shall be given to it
at [Perpetual Trustees
26
Australia Limited, Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
XXX 0000, Facsimile: x00 0 0000 0000, Attention: Manager Securitisation]; [and
to Macquarie shall be given to it c/o [Macquarie Securitisation Limited, Level
23, 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, Facsimile: +61 2
8232-4755, Attention: The Treasurer].
20. Counterparts: Applicable Law.
This Agreement may be signed in counterparts, each of which shall be an original
and all of which together shall constitute one and the same instrument. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without giving effect to the conflicts of laws provisions
thereof.
27
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
MACQUARIE SECURITISATION LIMITED
By:
-----------------------------
Name:
Title:
[PERPETUAL TRUSTEES AUSTRALIA LIMITED]
By:
-----------------------------
Name:
Title:
[MACQUARIE BANK LIMITED
By:
-----------------------------
Name:
Title:]
28
Accepted: [__]
[__].
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
By:
-----------------------------
Name:
Title:]
By:
-----------------------------
Name:
Title:]
29
SCHEDULE I
UNDERWRITER PRINCIPAL AMOUNT OF CLASS
[__] NOTES TO BE PURCHASED
[__]........................................... Class [__] $[__]
[__]........................................... Class [__] $[__]
[__]........................................... Class [__] $[__]
Total.................................. $[__]
SCHEDULE II
List of Section 128F(9) Associates of the Issuer Trustee
[ACT Nominees Limited
ASX Perpetual Registrars Limited
Australian Trustees Limited
Australian Trustees Pty Limited
Charleville Leasing Ltd
Commonwealth Trustees Pty Limited
Hunter Nominees Pty Ltd
Investor Marketplace Limited
Midway Nominees Pty Ltd
Perpetrust Nominees Pty Ltd
Perpetual Asset Management Ltd
Perpetual Assets Pty Ltd
Perpetual Australia Property Services (WA) Pty Ltd
Perpetual Australia Pty Limited
Perpetual Custodians Ltd
Perpetual Custodians WA Pty Ltd
Perpetual Executors Nominees Ltd
Perpetual Fund Services Limited
Perpetual Investment Management Limited
Perpetual Nominees Limited
Perpetual Property Services Australia Pty Ltd.
Perpetual Service Network Pty Limited
Perpetual Services Pty Limited
Perpetual Superannuation Limited
Perpetual Trust Services Limited
Perpetual Trustee Company (Canberra) Limited)
Perpetual Trustee Company Limited
Perpetual Trustees Nominees Limited
Perpetual Trustees Queensland Ltd
Perpetual Trustees S A Limited
Perpetual Trustees Victoria Limited
Perpetual Trustees W.A. Ltd
PT Limited
Queensland Trustees Pty Limited
Selwest Pty Ltd
Terrace Guardians Ltd
Xxxxxx Xxxxxxxx Finance Pty Limited
Xxxxxx Xxxxxxxx Limited
Xxxxxx Xxxxxxxx Partnership Pty Ltd]
SCHEDULE III
List of Section 128F(9) Associates of the Macquarie Parties
[A) List of Associates : Companies
Abalflow Trust
Airport Motorway Infrastructure No. 1 Limited
Aldisa Nominees Pty Limited
Aleatory Pty Limited
Asia Resource Capital Limited
AUSFLEET Pty Limited
Australian Hotel Investment Pty Limited
B.E.S.T. Management Pty Limited
Bavian Pty Limited
Bittoorong Pty Limited
BOND STREET AUSTRALIA LIMITED
Airport Motorway Custodians Limited
Bond Street Custodians Limited
Bond Street Lease Management Pty Limited
BOSTON AUSTRALIA LIMITED
Boston Leasing Pty Limited
CAMPUS INTERNATIONAL HOLDINGS PTY LIMITED
Concept Blue Property Pty Limited
(formerly Melbourne City Unilodge Pty Limited)
Volatic Pty Limited
Volbing Pty Limited
CAMPUS INTERNATIONAL HOLDINGS TRUST
Berkeley Holdings Unit Trust
Berkeley Unit Trust
Canterbury Court Holdings Trust
Canterbury Court Unit Trust
Xxxxxxxxx Holdings Unit Trust
Xxxxxxxxx Unit Trust
Xxxxx Hospital Group Pty Limited
(formerly Victoria Link Pty Ltd)
Cazinon Pty Limited
Cemasta Pty Limited
Cenford Pty Limited
CHANNAR INVESTMENT NOMINEE PTY LIMITED
Pandrew Pty Limited
CityUtilities Pty Limited (formerly Macquarie Utilities (No.1) Pty Limited)
City Link Management Limited
Colanera Pty Limited
Colmoro Pty Limited
Coriolis Water Services (Australia) Pty Limited
Crownlease Pty Limited
D-Auction Internet Pty Limited
Xxxxxx Pty Limited
EDIVISION INVESTMENTS PTY LIMITED
Xxxxxxxxx.xxx Pty Limited
Financial Enrichment Pty Limited
Elytron Pty Limited
XXXXXX PTY LIMITED
Tryptic Pty Limited
GALANTHUS AUSTRALIA PTY LIMITED
Xxxxxxx Pty Limited
Galanthus Leasing Pty Limited
Gatesun Pty Limited
Gemata Pty Limited
Gondor Pty Limited
Hafling Pty Limited
Hills Motorway Management Limited
Xxxxxx No.1 Pty Limited
Horizon Energy Investment Management Limited
Indemco Pty Limited
Infrastructure Investment No. 2 Limited [incorp. in Cayman Islands]
Infrastructure Investments No. 1 Pty Limited
Kallerad Pty Limited
Kepile Pty Limited
Liana Pty Limited
MACFLEET Pty Limited
Mac Fund One Trust
MAC IT 2000 Pty Limited
Macquarie (1 Xxxxxxxxx Street) Nominees Pty Ltd (formerly Xxxxxx No. 3 Pty
Limited)
Macquarie (Arncliffe) Pty Limited
Macquarie (Asia) Pte Limited [incorp. in Singapore]
MACQUARIE (HK) FINANCIAL SERVICES LIMITED * [INCORP. IN HKG]
The Falcon General Partnership (formed 6 December 2001) [formed in HKG]
MACQUARIE ACCEPTANCES LIMITED
BOND STREET INVESTMENTS PTY LIMITED
CH4 Pty Limited (minority interest 10%)
Macquarie Holdings Trust
Macquarie Investment Trust
Macquarie Thirty-Fourth Aviation Leasing Pty Limited
Macquarie Thirty-Seventh Aviation Leasing Pty Limited
Macquarie Thirty-Third Aviation Leasing Pty Limited
Sabco Australia Limited
Chalce Pty Limited
Xxxxxxxx Pty Limited
Xxxxxxx Pty Limited
GLORIOLE PTY LIMITED
LANROD PTY LIMITED
VALCORA PTY LIMITED
Jevington Investments [incorp. in UK]
Macquarie Nominees ACT Pty Limited
Hillsam Nominees Pty Limited
Idameneo (No. 31) Pty Limited
Macquarie (A.C.T. Property Investments) Pty Limited
(formerly Macquarie Thirteenth Aviation Leasing Pty Limited)
MACQUARIE ASSET MANAGEMENT LIMITED
Coldava Limited
Jubilee Pty Limited
Macquarie Deposits Pty Limited
Macquarie Information Technology Pty Limited
MACQUARIE NZ HOLDINGS LIMITED
MACQUARIE GROUP NEW ZEALAND LIMITED [incorp. in NZ]
MACQUARIE NEW ZEALAND LIMITED [incorp. in NZ]
MACQUARIE EQUITIES NEW ZEALAND LIMITED [incorp. In NZ]
Macquarie Equities Custodians Limited [incorp. in NZ]
Macquarie Equities Nominees Limited [incorp. in NZ]
Macquarie Private Portfolio Management (NZ) Pty Limited [incorp.
in NZ]
Macquarie Infrastructure (NZ) Limited [incorp. in NZ]
(formerly Macquarie Property (NZ) Limited)
New Zealand Cash Management Trust Limited [incorp. in NZ]
Macquarie PH (UK) Limited [incorp. In UK]
Parsees Pty Limited
Telbane Pty Limited
Totara Pty Limited
Tywyn Pty Limited
UTOPIA PTY LIMITED (MINORITY INTEREST 43%)
CORPORATE CAPITAL EQUIPMENT FINANCING PTY LIMITED
Decally Pty Limited
Fragola Pty Limited
Mendlesham Corporation Pty Limited
Naysin Pty Limited
Old Brampton Corporation Pty Limited
Ophidian Pty Limited
Ornate Pty Limited
Poltava Pty Limited
PRAEN PTY LIMITED
Grosvenor Office Equipment Hire Pty Limited
Reconnoitre Pty Limited
Residium Pty Limited
Resinal Pty Limited
Second Resinal Pty Limited
Dalou Pty Limited
Fortescue Gardens Pty Limited
Rovenda Pty Limited
Rovny Pty Limited
Samspin Limited
Shadoof Pty Limited
Macquarie Asset Services (Qld) Pty Limited
Macquarie Asset Services (Vic) Pty Limited
MACQUARIE AUSTRALIA PTY LIMITED
Macquarie Investment (Hong Kong) Limited [incorp. in HKG]
Sucette Pty Limited
Macquarie Bank Superannuation (No. 2) Pty Limited
Macquarie Bank Superannuation Pty Limited
MACQUARIE DIRECT INVESTMENT LIMITED
Macquarie Direct Investment A Limited
Macquarie Direct Investment B Limited
Macquarie First Aviation Leasing Pty Limited
Macquarie Funds Management Limited
MACQUARIE INVESTMENT MANAGEMENT LIMITED
Macquarie-IMM Investment Management Limited [incorp. in Korea] (minority
interest 35%)
Macquarie Lease Management Pty Limited
Macquarie Lease Nominees Pty Limited
MACQUARIE LEASING QLD PTY LIMITED
Gabija Pty Limited
Riverut Pty Limited
Macquarie Leasing Vic. Pty Limited
MBL River Links Pty Limited
(formerly Macquarie Mortgage Management Pty Limited)
Macquarie Office Management Limited
Macquarie Property Services Pty Limited
Macquarie Risk Management Pty Limited
Macquarie Thirty-Ninth Aviation Leasing Pty Limited
Macquarie Twelfth Aviation Leasing Pty Limited
Macquarie Twentieth Aviation Leasing Pty Limited
Macquarie Twenty-Eighth Aviation Leasing Pty Limited
Macquarie Twenty-Seventh Aviation Leasing Pty Limited
Macquarie Twenty-Third Aviation Leasing Pty Limited
MBL Realty Investment Management Pty Limited
Memnon Pty Limited Olary Pty Limited
Oxton Pty Limited
RISK AVERSE MONEY MANAGERS PTY LIMITED
Australian Index Money Managers Limited
Macquarie Admin Services Pty Limited
Macquarie Airports Management Limited
(formerly Bulwer Island Cogen Limited)
Macquarie Alliances Pty Limited
MACQUARIE ASIA HOLDINGS PTY LIMITED
MACQUARIE INDONESIA HOLDINGS PTY LIMITED
PT Macquarie Konsultan Indonesia [incorp. in Indonesia]
Macquarie Asia Limited [incorp. in HKG]
Macquarie Asia Property Advisors Limited [incorp. in Bermuda]
Macquarie Asiawide Management Limited [incorp. in HKG]
Macquarie Asset Services (ACT) Pty Limited
Macquarie Asset Services (WA) Pty Limited
Macquarie Asset Services Limited
MACQUARIE AUSTRALIA (HK) LIMITED [incorp. in HK]
Macquarie Pacific Management Limited [incorp. in Xxxx Islands]
Macquarie Australia Corporate Finance Limited
Macquarie Australia Infrastructure Pty Limited
Macquarie Australia Lease Management Pty Limited
Macquarie Australia Management Services Pty Limited
Macquarie Australia Securities Limited
Macquarie Australia Technology Pty Limited
Macquarie Business Broking Services Pty Limited
Macquarie Capital Markets Nominees Pty Limited
MACQUARIE COMMERCIAL LEASING VIC. PTY LIMITED
Softwood View Pty Limited
MACQUARIE COMMUNICATIONS INFRASTRUCTURE LIMITED
(formerly Metropolitan Transit Limited)
Broadcast Australia Finance Pty Ltd (incorporated 6 May 2002)
MACQUARIE COMMUNICATIONS INFRASTRUCTURE HOLDINGS PTY LIMITED
(formerly MCIL Holdings Pty Limited)
NTL BELGIUM SPRL (acquired 2 April 2002)
Broadcast Australia Holdings (Vic) Pty Limited (incorporated 2
July 2002)
(formerly Macquarie Utilities (No. 2) Pty Limited)
Broadcast Australia Holdings Pty Limited (consolidated) (acquired 2
April 2002)
(formerly ntl Australia Holdings Pty Limited)
Macquarie Communications Infrastructure Management Limited
(formerly South Coast Motorway Limited)
Macquarie Computer Leasing Pty Limited
Macquarie Concept Blue Pty Limited
Macquarie Coolibah Management Limited
Macquarie Corporate Finance (USA) Inc. [incorp. in USA]
MACQUARIE CORPORATE FINANCE HOLDINGS PTY LIMITED
(formerly Macquarie Twenty-Ninth Aviation Leasing Pty Limited)
MACQUARIE CORPORATE FINANCE LIMITED
Airport Motorway Infrastructure No. 3 Limited
Airport Motorway Infrastructure No. 4 Limited
Macquarie (Hong Kong) Limited [incorp. in HKG]
MACQUARIE (JAPAN) LIMITED * [incorp. in Japan]
JPF Investment Ltd (incorporated 4 June 2002)
MJL Ace Limited * [incorp. in Japan]
MJL Bay Limited * [incorp. in Japan]
MJL Cookie Limited (incorp. in Japan)
Macquarie (Malaysia) Sdn Bhd [incorp. in Malaysia]
Macquarie Africa (Proprietary) Limited [incorp. in South Africa]
Macquarie Asset Finance Limited
Macquarie Aviation (No. 1) Limited
Macquarie Corporate Finance International Limited
Macquarie France Holdings Pty Limited
Macquarie Infrastructure Limited
Macquarie Infrastructure No. 2 Limited
Macquarie Infrastructure No. 4 Pty Limited
(formerly Macquarie Infrastructure No. 4 Limited)
MACQUARIE NORTH AMERICA LIMITED * [INCORP. IN CANADA]
Macquarie Canadian Infrastructure Management Limited [incorp. in Canada]
Macquarie North America Securities Limited [incorp. in Canada]
Macquarie Transmission Alberta Limited [incorp. in Canada]
(formerly 941534 Alberta Limited)
Macquarie Securitisation (OBU) Pty Limited
(formerly Macquarie Securitisation (OBU) Limited, Bulwer Island Cogen
Holdings Limited)
Tadina Pty Limited
Tegny Pty Limited
Tenata Pty Limited
Macquarie CountryWide Management Limited
Macquarie Development Capital II Pty Limited
Macquarie Development Capital Pty Limited
Macquarie Development Direction Pty Limited
MACQUARIE DIRECT PROPERTY MANAGEMENT LIMITED
Principle Holdings No. 2 Pty Limited
Macquarie Distribution Pty Limited
MACQUARIE DIVERSIFIED INVESTMENTS NO 2 PTY LTD
Macquarie Investments No. 2 Limited Partnership
MACQUARIE DIVERSIFIED INVESTMENTS NO 3 PTY LTD
Macquarie Investments No. 3 Limited Partnership
MACQUARIE DIVERSIFIED PORTFOLIO INVESTMENTS PTY LIMITED
MACQUARIE DIVERSIFIED INVESTMENTS LIMITED PARTNERSHIP
Macquarie Diversified Investment Services Pty Limited
Macquarie Domestic Hedge Fund Management Limited
Macquarie Equipment Finance Pty Limited
Macquarie Equities (Asia) Limited [incorp. in HKG]
MACQUARIE EQUITIES (AUSTRALIA) LIMITED
Belike Nominees Pty Limited
Buttonwood Nominees Pty Limited
Elise Nominees Pty Limited
Macquarie Securities (Asia) Pty Limited
Nanway Nominees Pty Limited
Rema Nominees Pty Limited
Woodross Nominees Pty Limited
MACQUARIE EQUITIES (US) HOLDINGS PTY LIMITED
Macquarie Equities Brasil Limitada [incorp. in Brazil]
MACQUARIE HOLDINGS (USA) INC. [incorp. in USA]
Macquarie Americas Corp [incorp. in USA]
Macquarie Brasil Limitada [incorp. in Brazil]
Macquarie Electronics USA Inc.
MACQUARIE REAL ESTATE INC. [incorp. in USA]
(formerly Macquarie (Delaware) Inc.)
MACQUARIE MORTGAGES USA INC. [incorp. in USA]
Macquarie Mortgages Financing Inc. [incorp. in USA]
Macquarie Real Estate Finance Inc. [incorp. in USA]
Macquarie Equities (USA) Inc. [incorp. in USA]
MACQUARIE INC. [incorp. in USA]
Macquarie Futures Inc. [incorp. in USA]
Macquarie Real Estate Finance Consulting Inc. [incorp. in USA]
MACQUARIE EQUITIES LIMITED
Dexin Nominees Pty Limited
Equitas Nominees Pty Limited
Idameneo (No. 79) Nominees Pty Limited
Uphill Nominees Pty Limited
Macquarie Equity Capital Markets Limited
MACQUARIE EUROPEAN HOLDINGS PTY LIMITED
Macquarie Equities (UK) Limited [incorp. in UK]
Macquarie Filmed Investments Pty Limited
MACQUARIE FINANCE LIMITED
Macquarie Syndication (No. 4) Pty Limited
Macquarie Finance (NZ) Limited [incorp. in NZ]
Macquarie Financial Products Management Limited
Macquarie Fleet Finance Pty Limited
Macquarie Fleet Leasing Pty Limited
Macquarie Fourteenth Aviation Leasing Pty Limited
Macquarie Funds Management Hong Kong Limited [incorp. In HKG]
MACQUARIE HEALTH ACQUISITIONS PTY LTD (INCORPORATED 10 MAY 2002)
Macquarie Health Funding Pty Ltd (incorporated 10 May 2002)
Macquarie Health Holdings Pty Ltd (incorporated 10 May 2002)
Macquarie IB Limited
Macquarie Infrastructure Debt Management Limited
Macquarie Infrastructure Funds Management Limited
Macquarie Infrastructure Investment Management (UK) Limited [incorp. in UK]
MACQUARIE INFRASTRUCTURE INVESTMENT MANAGEMENT LIMITED
AMT Management Limited
Macquarie International Capital Advisors Pty Limited
(formerly Koorileah Pty Limited)
Macquarie International Capital Markets Limited [incorp. in HKG]
MACQUARIE INTERNATIONAL LIMITED [incorp. in UK]
Macquarie Finance (UK) Limited [incorp. in UK]
Macquarie International Property Services Pty Limited
MACQUARIE INTERNATIONALE HOLDINGS LIMITED [INCORP. IN UK]
(formerly Macquarie Corporate Finance (UK) Limited)
MACQUARIE CAPITAL LIMITED [incorp. in United Kingdom]
Macquarie Capital GmbH [incorp. in Austria]
Macquarie Capital Korea Co Limited
(formerly Macquarie IT Korea Co Limited)
Macquarie Specialised Infrastructure Management Co., Limited (incorporated
17 October 2002)
Macquarie Investment Services Limited
Macquarie Korea Co. Limited [incorp. in Korea]
MACQUARIE LEASING NSW PTY LIMITED
Acuba Pty Limited
Macquarie Leasing Pty Limited
Macquarie Leasing (NZ) Limited [incorp. in NZ]
Macquarie Leasing (UK) Limited [incorp. in UK]
Macquarie Leisure Management Limited
Macquarie Life Limited
Macquarie Marinas Management Limited
(formerly Macquarie Implemented Property Service Limited)
Macquarie Mortgages Pty Limited
Macquarie N.T. Leasing Pty Limited
Macquarie Options Pty Limited
Macquarie Photonics Pty Limited
Macquarie Portfolio Services Pty Limited
Macquarie PRISM Pty Limited
Macquarie Private Portfolio Management Limited
Macquarie Private Wealth Management Pty Limited
Macquarie Project Finance Pty Limited
Macquarie Property Development Finance Limited
MACQUARIE PROPERTY INTERNATIONAL PTY LIMITED
MACQUARIE PROPERTY CHINA PTY LIMITED
Macquarie (Tianjin) Property Services Co. Limited [incorp. in China]
Sedulous Investments Pty Limited
Macquarie Property Finance Limited [incorp. in NZ]
Macquarie Property (OBU) Pty Limited
Macquarie Real Estate Asia Limited
(formerly Macquarie Property Management (International) Limited)
Macquarie R&D No. 1 Pty Limited
Macquarie R&D No. 7 Pty Limited
Macquarie Realty Services Pty Limited
MACQUARIE REGIONAL SHAREHOLDINGS (UK) LIMITED
Ropemaker Street Investments Limited
Macquarie Risk Management Advisory Pty Limited
MACQUARIE SCIENCE HOLDINGS LIMITED
Ensenaba Pty Limited
Garachine Pty Limited
Sucrafeed No. 1 Pty Limited
Sucrafeed No. 2 Pty Limited
MACQUARIE SECURITIES LIMITED [incorp. in NZ]
MACQUARIE CAPITAL (NZ) LIMITED
(formerly Ojai Holdings Limited)
Macquarie I.T. (NZ) Limited [incorp. in NZ]
Worldwide Parking Group Limited (incorp. 27 March 2002) [incorp. in NZ]
Macquarie Securities Management Pty Limited
MACQUARIE SECURITISATION (HONG KONG) LIMITED [incorp. in HKG]
Macquarie Securitisation Limited
Macquarie Services (Hong Kong) Limited [incorp. in HKG]
Macquarie Specialised Asset Management 2 Limited
Macquarie Specialised Asset Management Limited
Macquarie Strata Services Pty Limited
Macquarie Structured Equities Pty Limited
Macquarie Structured Products Australia Limited
(formerly MAST Management Limited)
Macquarie Syndicate Management Pty Limited
Macquarie Syndicate Nominee Pty Limited
Macquarie Syndication (No. 7) Pty Limited
Macquarie Syndication (No. 12) Pty Limited
Macquarie Syndication (No. 22) Pty Limited
MACQUARIE TECHNOLOGY GROUP PTY LIMITED
MACQUARIE TECHNOLOGIES (MALAYSIA) SDN BHD [incorp. in Malaysia]
Macquarie IT Sdn Bhd [incorp. in Malaysia]
Macquarie Technology Investments Limited
Macquarie Technology Ventures Nominee Pty Limited
Macquarie Technology Ventures Pty Limited
MACQUARIE TELECOMMUNICATIONS HOLDINGS PTY LIMITED (incorporated 28 May 2002)
NTL TELECOMMUNICATIONS HOLDINGS PTY LIMITED (acquired 2 April 2002)
ntl Telecommunications Pty Limited (acquired 2 April 2002)
Macquarie Tourism & Leisure Pty Limited
Macquarie Treasury Management Limited [incorp. in Bermuda]
Macquarie Treasury Nominees Pty Limited
Macquarie Treasury Private Trustee Company Limited [incorp. in Bermuda]
Macquarie Vue Nominee Pty Limited
Macquarie-ProLogis Mexico Trust Inc [incorp. in USA]
Macquarie-ProLogis US Trust Inc [incorp. in USA]
MAIL HOLDINGS LIMITED
CASL Financial Services Pty Limited
MACQUARIE AUSTRALIA INTERNATIONAL LIMITED
Develop Co Pty Limited
(formerly CASL Nominees Pty Limited)
Macquarie Risk Advisory Services Limited
Margin Lending Nominees Pty Limited
MCF Leasing Pty Limited
MECML Nominees Pty Limited
Melbourne Airlink Pty Limited
Merit Management No. 1 Pty Limited
Merit No. 1 Pty Limited
Oarale Pty Limited
PACIFIC RIM OPERATIONS LIMITED
Macquarie ProLogis Management Limited (incorporated 15 April 2002)
PARAY PTY LIMITED
Macquarie Syndication (No. 23) Pty Limited
Placate Pty Limited PUMA
Management Pty Limited
Q Rent Pty Limited
Residco Pty Limited
Royal Parade Apartments Pty Limited
Rugarno Pty Limited
Sanlucar Pty Limited
Santorini One Pty Limited
SECURE Australia Management Pty Limited
Secure Australia II Limited
Southern Cross Australian Airports Pty Limited
SPAL Limited
Structured Prime Asset Receivables (SPARS) No.1 Pty Limited
Subscriber Television Asset Rentals Pty Limited
SYNDICATED ASSET MANAGEMENT PTY LIMITED
RP Developments Pty Limited
Talamba Pty Limited
Taralie Pty Limited
Tegensee Pty Limited
TERRITORY AIRPORT LIMITED
Xxxxx Airport Limited
Xxxxxxx Airport Limited
Territory Airport Management Limited
The Victorian Rolling Stock Leasing Company Pty Limited
(formerly The Victorian Rolling Stock Leasing Company Limited)
TranSA Pty Limited
TranSA Sevices Pty Limited
URBAN PACIFIC LIMITED
Alloca (No. 4) Pty Limited
UPL River Links Investments Pty Ltd
(formerly Xxxxxx No. 2 Pty Limited)
Kensington Banks Pty Limited
Mont Park Development Company Pty Limited
SMR Developments Pty Limited
UPL Developments Pty Limited
UPL (SA) Pty Limited
UPL (WA) Pty Limited
Urban Pacific Springthorpe Investment Pty Limited
Vue Apartments Pty Limited
Vanne Pty Limited
VicWire Partnership Pty Limited
Wealth Nominees Pty Limited
Wuxta Pty Limited
Zoffanies Pty Limited]
[B) List of Associates : Joint Ventures / Partnerships
000 Xxxxxxx Xxxxxx Trust
AmInvestment Management Sdn Bhd
AmInvestment Services Bhd
Artsim Pty Limited
August Trading Limited
Austian (Tianjin) Real Estate Development Co. Limited
Bondi Beach Railway Limited
China Housing Investment Fund No. 6
Develop Co Pty Limited
First China Property Group Limited
Four Corners Capital Management LLC
Green Square Joint Venture
Helmsman Funds Management Limited
Helmsman Funds Management Pty Limited
Helmsman Nominees Pty Limited
ICA Property Development Fund No. 1 Pty Limited
ICA Property Development Fund No. 2 Pty Limited
Innofin Pty Limited
International Retail Limited
Macquarie Capital Partners LLC
Macquarie CCY Feeder Fund
Macquarie FX Feeder Fund
Macquarie FX Feeder Fund No. 2
Macquarie Xxxxxxx Management Limited
Macquarie Offshore Feeder Fund
Macquarie Offshore Feeder Fund Xx. 0
Xxxxxxxxx Xxxxxxxx Xxxxxx Xxxx Xx. 0
Macquarie Pro-Logis Management LLC
Macquarie Real Estate Equity Fund No. 1 Pty Limited
Macquarie Securitisation Shanghai Co. Limited
Macquarie-IMM Asset Management Co Limited
Medallist Developments Pty Limited
Medallist Golf Developments Trust
Medallist Holdings Inc.
Mining Equipment Company Pty Limited
MP Management LLC MPI Private Trustee Limited
OMNI Investments Pty Limited
River Links Development Pty Limited
SecuriClear Limited
Shinhan Macquarie Financial Advisory Co Limited
Southern African Infrastructure Fund Managers (Proprietary) Limited
Tasman Economics Pty Limited
The Cannery Unit Trust
The Financial Arena Pty Limited
Tianjin Macquarie Property Development Management Company Limited
Vytel Spectrum Pty Limited]
TABLE OF CONTENTS
1. Purchase and Sale....................................................2
2. Offering.............................................................3
3. Delivery and Payment.................................................3
4. Representations and Warranties of the
[Macquarie Parties] and the Issuer Trustee...........................3
5. Covenants and Agreements............................................10
6. Conditions to the Obligations of the Underwriters...................13
7. Indemnification and Contribution....................................17
8. Termination.........................................................21
9. Effectiveness of Agreement; Default of Underwriters.................21
10. Expenses upon Termination...........................................22
11. Fee Letter..........................................................22
12. Consent to Jurisdiction; Appointment of Agent to Accept Service
of Process..........................................................22
13. Foreign Taxes.......................................................22
14. Waiver of Immunities................................................23
15. Judgment Currency...................................................23
16. Selling Restrictions................................................23
17. Certain Matters Relating to the Issuer Trustee......................25
18. Successors..........................................................26
19. Actions by Representative; Notices..................................26
20. Counterparts: Applicable Law........................................27
Schedule I
Schedule II
Schedule III
