EXHIBIT 1.1
UNDERWRITING AGREEMENT
US$[ ]
Perpetual Trustee Company Limited
SERIES [ ]MEDALLION TRUST
Class [ ] Mortgage Backed Floating Rate Notes Due [ ]
UNDERWRITING AGREEMENT
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[Date]
[ ]
("[ ]")
As Representative of the
Several Underwriters Listed
in Schedule I
[ Address ]
Ladies and Gentlemen:
[Perpetual Trustee Company Limited, ABN 42 000 001 007,] a company
incorporated in New South Wales, Australia ("Perpetual"), acting in its capacity
as trustee of the Series [ ] Medallion Trust (the "Trust", and Perpetual in
that capacity being the "Issuer Trustee"), acting at the direction of
Securitisation Advisory Services Pty Limited, ABN 88 064 133 946, a company
incorporated in New South Wales, Australia, as manager of the Trust (the
"Manager"), proposes to sell to the several Underwriters listed in Schedule I
to this Agreement (the "Underwriters"), for whom [ ] is acting as
representative (the "Representative"), US$[ ] aggregate principal amount of
Class [ ] Mortgage Backed Floating Rate Notes due [ ] (the "Class [ ]
Notes") issued
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by the Issuer Trustee. The Manager is a wholly-owned subsidiary of Commonwealth
Bank of Australia, ABN 48 123 123 124, a company incorporated in the Australian
Capital Territory, Australia ("CBA").
The Class [ ] Notes will be secured by the assets of the Trust in
accordance with the Security Trust Deed. The assets of the Trust means all
assets and property, real and personal, (including choses in action and other
rights), tangible and intangible, present or future, held by the Issuer Trustee
from time to time, as trustee of the Trust including, among other things: (i)
rights specified in the Security Trust Deed and the Note Trust Deed in a pool of
variable and fixed rate residential mortgage loans (the "Mortgage Loans") (such
rights, the "Mortgage Loan Rights" (as defined on the next page)) and certain
moneys received under the Mortgage Loans after [ ] (the "Cutoff Date"),
(ii) the benefits of all covenants, agreements, undertakings, representations,
warranties and other choses in action in favor of the Issuer Trustee under the
Transaction Documents (as defined in the Series Supplement), (iii) the
Collection Account and (iv) all other assets that comprise the Charged Property
(as defined in the Security Trust Deed). The Mortgage Loans will be sold to the
Issuer Trustee by CBA and Colonial State Bank ("Colonial") (in such capacity,
the "Sellers") and will be serviced for the Issuer Trustee by CBA (in such
capacity, the "Servicer").
The Trust was created pursuant to a master trust deed dated October 8,
1997, as amended from time to time (the "Master Trust Deed") between the Manager
and Perpetual and a series supplement dated [ ] (the "Series Supplement"),
between CBA (as Seller and Servicer), the Manager and the Issuer Trustee, which
describes, among other things, the Trust and the underlying cash flow relating
to the Class [ ] Notes. The Class [ ] Notes will be issued pursuant to a
Note Trust Deed to be dated [ ] among the Issuer Trustee, the Manager and
The Bank of New York, New York branch (the "Class [ ] Note Trustee").
The Class [ ] Notes will be issued in an aggregate principal
amount of US$[ ] which is equal to approximately [ ]% of the aggregate balance
of the Mortgage Loans as of the Cutoff Date. The Class [A-2] Notes will be equal
to approximately [ ]% of the aggregate principal amount of Mortgage Loans as of
the Cutoff Date, and the Class B Notes will be equal to approximately [ ]% of
the aggregate principal amount of the Mortgage Loans as of the Cutoff Date. The
assets of the Trust will also secure under the Security Trust Deed, among other
things, any Redraw Bonds (as defined in the Series Supplement) that may be
issued after the date of this Agreement and the Issuer Trustee's obligations
under the Liquidity Facility.
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The Class [ ] Notes, the Class B Notes and the Redraw Bonds are collectively
referred to as the "A$ Securities." The Class [ ] Notes and the A$
Securities are collectively referred to as the "Notes."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (Reg. No. [ ]), including a prospectus, relating to the Class [ ]
Notes. [The Manager has also prepared a term sheet for the Class [ ] Notes
(the "Note Term Sheet") in conformity in all material respects with the
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Securities Act and all requirements applicable to term sheets and computational
materials set forth in no-action letters issued by the Commission.] The
registration statement as amended at the time when it became effective, or, if
any post-effective amendment has been filed with respect thereto, as amended by
the most recent post-effective amendment at the time of its effectiveness, is
referred to in this Agreement as the "Registration Statement", the form of base
prospectus included in the Registration Statement as most recently filed with
the Commission is referred to as the "Base Prospectus" and the form of the
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prospectus which includes the Base Prospectus and a prospectus supplement
describing the Class [ ] Notes and the offering thereof (the "Prospectus
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Supplement") which prospectus is first filed on or after the date of this
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Agreement in accordance with Rule 424(b) is referred to in this Agreement as the
"Prospectus".
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When used in this Agreement, "Basic Documents" shall mean collectively:
the Master Trust Deed (in so far as it applies to the Trust), the Series
Supplement, the Notes, the Security Trust Deed, the Note Trust Deed, the Agency
Agreement, the Dealer Agreement, the Liquidity Facility Agreement, the Standby
Redraw Facility Agreement, the Currency Swap Agreements, the Interest Rate Swap
Agreements, the Mortgage Insurance Policies, any other document which is agreed
to by the Manager and the Issuer Trustee to be a Transaction Document in
relation to the Trust under clause 1.6(a)(v) of the Series Supplement, the DTC
Letter of Representations, any undertakings given to Euroclear or Clearstream
Banking, societe anonyme ("Clearstream") in connection with the Book Entry
Notes, any agreement, instrument or undertaking entered into by the Issuer
Trustee or any CBA Party in connection with the admission of the Class [ ]
Notes to the official list ("Official List") of the Financial Services
Authority ("UK Listing Authority") and the admission of the Class [ ] Notes
to trading on the London Stock Exchange Limited's (the "London Stock Exchange")
market for listed securities, and any other contract, agreement or instrument
which is specified in the draft settlement agenda dated
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[ ] prepared by Xxxxxxx Xxx in connection with the issuance and sale of the
Class [ ] Notes. CBA and the Manager are each a "CBA Party" and collectively are
referred to as the "CBA Parties". "Effective Date" shall mean the latest of the
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dates that the Registration Statement or the most recent post-effective
amendment thereto became effective. "Rule 424" refers to such rule under the
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Securities Act. To the extent not defined herein, capitalized terms used herein
have the meanings assigned to such terms in the Series Supplement.
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity and reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the CBA Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale.
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(a) The Issuer Trustee, at the direction of the Manager, agrees
to sell, and the Manager agrees to direct the Issuer Trustee to sell, the Class
[ ] Notes to the several Underwriters as hereinafter provided, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Issuer Trustee, the respective principal
amounts of Class [ ] Notes set forth opposite such Underwriter's name in
Schedule I hereto at a price equal to 100% of their principal amount.
(b) In connection with such purchase, CBA will pay in immediately
available funds to the Underwriters the commissions payable under the letter
agreement relating to fees and expenses between CBA and the Representative
("Fee Letter").
(c) [ ] agrees to pay for any expenses incurred by the CBA
Parties in connection with any "roadshow" presentation to potential investors.
2. Offering. The CBA Parties and the Issuer Trustee understand that
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the Underwriters intend to make a public offering of their respective portions
of the Class [ ] Notes upon the terms set forth in the Prospectus as soon after
(A) the
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Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of [ ] is advisable.
3. Delivery and Payment. Payment for the Class [ ] Notes shall be made by
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wire transfer in immediately available funds to the account specified by the
Issuer Trustee to [ ] no later than 12:00 noon, New York City time on [ ], or
at such other time on the same or such other date, not later than the fifth
Business Day thereafter, as [ ] and the Manager may agree upon in writing. The
time and date of such payment are referred to herein as the "Closing Date". As
used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City, Sydney and
London.
Payment for the Class [ ] Notes shall be made against delivery to the
nominee of the Depository Trust Company for the account of [ ] and for the
respective accounts of the several Underwriters of one or more fully registered
global book-entry notes (the "Book-Entry Notes") representing US$[ ] in
aggregate Principal Amount of Class [ ] Notes, with any transfer taxes payable
in connection with the transfer to the Underwriters of the Class [ ] Notes
duly paid by the Issuer Trustee. The Book-Entry Notes will be made available for
inspection by [ ] at the offices of Xxxxx, Xxxxx & Xxxxx at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 not later than 1:00 P.M., New York City time, on the
Business Day prior to the Closing Date. Interests in any Book Entry Notes will
be held only in Book Entry form through DTC, except in limited circumstances
described in the Prospectus.
4. Representations and Warranties of the Issuer Trustee and the CBA
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Parties.
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I. The Issuer Trustee represents and warrants to each Underwriter and the
CBA Parties as of the date of this Agreement and as of the Closing Date, and
agrees with each Underwriter and the CBA Parties, that:
(a) since the respective dates as of which information is provided in
the 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, or
results of operations, condition (financial or otherwise) of Perpetual or the
Trust except as disclosed in the Prospectus which is material in the context of
performing the Issuer
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Trustee's obligations and duties under the Notes and each Basic Document to
which it is or is to be party;
(b) Perpetual has been duly incorporated and is validly existing as a
corporation under the laws of New South Wales, with power and authority
(corporate and other) to conduct its business as described in the Prospectus,
and to enter into and perform the Issuer Trustee's obligations under this
Agreement and the Basic Documents and Perpetual has been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents;
(c) Perpetual has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by Perpetual, and, when the
Class [ ] Notes have been issued (and duly authenticated by the Class [ ]
Note Trustee), delivered and paid for pursuant to this Agreement, they will
constitute valid and binding obligations of the Issuer Trustee entitled to the
benefits of the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable principles.
(e) the execution, delivery and performance by Perpetual of each of
the Basic Documents to which it either is, or is to be, a party and this
Agreement has been duly authorized by Perpetual and, when executed and delivered
by it and the other parties thereto, each of the Basic Documents will constitute
a legal, valid and binding obligation of the Issuer Trustee, enforceable against
it in accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles;
(f) Perpetual is not, nor with the giving of notice or lapse of time
or both will be, in violation of or in default under: (i) its constitution or
(ii) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which either is a party or by which it or any of its properties
is bound, except in
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the case of (ii), for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in or in the Basic Documents; the issue and sale of the Notes and
the performance by the Issuer Trustee of all of the provisions of the Issuer
Trustee's obligations under the Notes, the Basic Documents and this Agreement
and the consummation of the transactions herein and therein contemplated will
not (I) conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its property or assets is subject, (II) result in
any violation of the provisions of its constitution or any applicable law or
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over it, or any of its properties; or (III) result in
the creation or imposition of any lien or encumbrance upon any of its property
pursuant to the terms of any indenture, mortgage, contract or other instrument
other than pursuant to the Basic Documents; and no consent, approval,
authorization, order, license, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of the
Notes or the consummation by the Issuer Trustee of the transactions contemplated
by this Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder (the latter,
including such applicable rules and regulations, the "Trust Indenture Act") and
as may be required under state securities or "Blue Sky" Laws in connection with
the purchase and distribution of the Class [ ] Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or the Trust or
to which it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents by
the Issuer Trustee, (iii) that may adversely affect the US Federal or Australian
Federal or state income, excise, franchise or similar tax attributes of the
Class [ ] Notes, (iv) that could materially and adversely affect the Issuer
Trustee's performance of its obligations under, or the validity or
enforceability against the Issuer Trustee of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
any of the Class [ ] Notes; and there are no contracts or other
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documents to which it is party or bound that are required to be filed as an
exhibit to the Registration Statement or laws, contracts or other documents
required to be described in the Registration Statement or the Prospectus which
are not filed or described as required;
(h) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might reduce,
limit or otherwise adversely affect the right of the Issuer Trustee to be
indemnified from the assets of the Trust under Clause 16 of the Master Trust
Deed;
(j) the Prospectus complies with the Listing Rules of the UK Listing
Authority, and any preliminary prospectus and the Prospectus (in the case of the
Prospectus, as of the date of this Agreement and in the case of any preliminary
prospectus, as of its date) (i) contains all the information required by section
[146] of the Financial Services and Markets Xxx 0000 (the "Financial Services
Act"); and (ii) in the context of offers and sales of the Class [ ] Notes to
any person (A) who is outside the "United States" (as defined in Regulation S
under the Securities Act) or (B) who is not a "U.S. person" (as defined in
Regulation S under the Securities Act), is accurate in all material respects and
does not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the information therein, in the light of the
circumstances under which it is given, not misleading and all reasonable
inquiries have been made by or on behalf of the Issuer Trustee to ascertain the
accuracy of all such information;
(k) Perpetual has not taken any corporate action and (to the best of
its knowledge and belief having made reasonable inquiry and investigation) no
other steps have been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator, provisional
liquidator or similar officer of it or of any or all its assets;
(l) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Income Tax Assessment Act 1936 (the
"Australian Tax Act") in relation to interest payments under the Class [ ]
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,
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levied, collected, withheld or assessed by or within, the Commonwealth of
Australia or any sub-division of or authority therein or thereof having power to
tax in such jurisdiction, in connection with (i) the authorization, execution or
delivery of any of the Basic Documents to which it is or is to be a party or
with the authorization, execution, issue, sale or delivery of the Class [ ]
Notes under this Agreement, (ii) the sale and delivery of the Class [ ]
Notes by the Underwriters contemplated in this Agreement and the Prospectus or
(iii) the execution, delivery or performance by the Issuer Trustee of any of the
Basic Documents to which it is or is to be a party or the Class [ ] Notes;
except, in the case of sub clause (iii), for any of the Basic Documents on which
nominal stamp duty is payable or any other document executed in connection with
the perfection of the Issuer's Trustee's legal title to the Mortgage Loans on
which stamp duties or registration fees may be payable;
(m) 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
(n) no event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice or
direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
II. Each CBA Party severally represents and warrants to each
Underwriter and the Issuer Trustee as of the date of this Agreement and as of
the Closing Date that:
(a) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the CBA Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust otherwise than as set
forth or contemplated in the Prospectus;
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(b) it has been duly incorporated and is validly existing as a
corporation under the laws of (in the case of CBA) the Australian Capital
Territory and (in the case of the Manager) New South Wales, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement and the Basic Documents, and, in each case, has been duly
qualified or licensed for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification or licensing,
other than where the failure to be so qualified or licensed or in good standing
would not have a material adverse effect on the transactions contemplated in
this Agreement or in the Basic Documents;
(c) this Agreement has been duly authorized, executed and delivered by
it;
(d) each of the Basic Documents to which it is or is to be a party has
been duly authorized by it and, upon effectiveness of the Registration
Statement, the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each CBA Party that is a party to it and the other parties thereto, will
constitute a legal, valid and binding obligation of such CBA party, enforceable
against it in accordance with its terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement of
creditors rights generally and to general equitable principles; and, in the case
of the Manager only, the Class [ ] Notes and the Basic Documents each will
conform to the descriptions thereof in the Prospectus;
(e) it is not, nor with the giving of notice or lapse of time or both
would it be, in violation of or in default under, its constitution or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any
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of its property or assets is subject, (ii) result in any violation of
the provisions of the constitution of a CBA Party or any applicable law or
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over a CBA Party, or any of its properties or (iii)
result in the creation or imposition of any lien, charge or encumbrance upon any
of its property pursuant to the terms of any such indenture, mortgage, contract,
or other instrument other than pursuant to the Basic Documents; and no consent,
approval, authorization, order, license, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Class [ ] Notes or the consummation by it of the transactions
contemplated by this Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act and as may
be required under state securities or Blue Sky Laws of the United States in
connection with the purchase and distribution of the Class [ ] Notes by the
Underwriters and the registration of the Charge with the ASIC on the Closing
Date;
(f) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or its
properties, the Trust or the Trust's properties, or to which it or the Trust is
or may be a party or to which it, the Trust or any property of it or the Trust
is or may be the subject, (i) asserting the invalidity of this Agreement or of
any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents, (iii) that may adversely affect the U.S. federal or
Australian federal or state income, excise, franchise, stamp duty or similar tax
attributes of the Class [ ] Notes, (iv) that could materially and adversely
affect its performance of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents or (v) which
could individually or in the aggregate reasonably be expected to have a material
adverse effect on the interests of the holders of the Class [ ] 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;
(g) its representations and warranties contained in the Basic Documents
are true and correct in all material respects;
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(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to perform its obligations
under this Agreement and the Basic Documents, and it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization;
and it is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic Documents;
(i) the Prospectus complies with the Listing Rules of the UK Listing
Authority, and any preliminary prospectus and the Prospectus (in the case of the
Prospectus), as of the date hereof and in the case of any preliminary
prospectus, as of its date) (i) contains all the information required by section
[146] of the Financial Services Act; and (ii) in the context of offers and sales
of the Class [ ] Notes to any person (A) who is outside the "United States"
(as defined in Regulation S under the Securities Act) or (B) who is not a "U.S.
person" (as defined in Regulation S under the Securities Act), is accurate in
all material respects and does not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the information
therein, in the light of the circumstances under which it is given, not
misleading and all reasonable inquiries have been made by the CBA Parties to
ascertain the accuracy of all such information;
(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 (other than enforcement action
taken by CBA over its assets);
(k) no stamp or other duty is assessable or payable in, and subject only
to compliance with Section 128F of the Australian Tax Act in relation to
payments under the Class [ ] Notes, no withholding or deduction for any
taxes, duties, assessments or governmental charges of whatever nature is imposed
or made for or on account of any income, registration, transfer or turnover
taxes, customs or other duties or taxes of any kind, levied, collected, withheld
or assessed by or within, the Commonwealth of Australia or any sub-divisions of
or authority therein or
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thereof having power to tax in such jurisdiction, in connection with (i) the
authorization, execution or delivery of the Basic Documents to which it is, or
is to be, a party or with the authorization, execution, issue, sale or delivery
of the Class [ ] Notes and (ii) the execution, delivery or performance by
each CBA Party of the Basic Documents to which it is or is to be a party or the
Class [ ] Notes; except, in the case of sub clause (ii), for any of the Basic
Documents on which nominal stamp duty is payable or any other document executed
in connection with the perfection of the Issuer's Trustee's legal title to the
Mortgage Loans on which stamp duties or registration fees may be payable;
(l) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute a Manager Default (as defined in the Master Trust Deed) or a Servicer
Default (as defined in the Series Supplement); and
(m) with respect to the A$ Securities: (A) none of the CBA Parties,
any "affiliate" (as defined in Rule 144(a)(1), each an "Affiliate") of a CBA
Party or any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has engaged or will engage in any "directed selling efforts" (within the
meaning of Regulation S), (B) each of the CBA Parties, each Affiliate of a CBA
Party and any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has offered and sold, and will offer and sell, the A$ Securities only in
"offshore transactions" (within the meaning of Regulation S) in compliance with
Regulation S and (C) each of the CBA Parties, each Affiliate of a CBA Party and
any person acting on behalf of a CBA Party or an Affiliate of a CBA Party has
complied and will comply with the offering restrictions requirement of
Regulation S.
(III). 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
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representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter
furnished to a CBA Party in writing by such Underwriter through [ ]
expressly for use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act; the conditions to the use by the Manager of
a Registration Statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Manager, threatened by the
Commission; and (i) on the Effective Date of the Registration Statement, the
Registration Statement conformed in all material respects to the requirements of
the Securities Act, and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein, or necessary
to make the statements therein not misleading and (ii) at the time of filing of
the Prospectus pursuant to Rule 424(b) and on the Closing Date the Registration
Statement will conform in all material respects to the requirements of the
Securities Act, and such document will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to any CBA Party in writing by such Underwriter through [ ]
expressly for use therein;
(c) the documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act Regulations") and,
------------------------
when read together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the date of the Prospectus and at
the Closing Date, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the
-14-
circumstances under which they were made, not misleading; provided, however, no
representation or warranty is made as to documents deemed to be incorporated by
reference in the Registration Statement as the result of filing any Current
Report on Form 8-K at the request of the Underwriters except to the extent such
documents accurately reflect or are accurately based upon information furnished
by or on behalf of the CBA Parties to the Underwriters for the purpose of
preparing such documents.
(d) [ ] are independent public accountants with respect to CBA and the
Manager within the meaning of the Securities Act;
(e) to the knowledge of the Manager, no event has occurred that would
entitle the Manager to direct the Issuer Trustee to retire as trustee of the
Trust under clause 19.2 of the Master Trust Deed;
(f) the Trust is not and (i) upon the issuance and sale of the Notes as
contemplated in this Agreement, (ii) the application of the net proceeds
therefrom as described in the Prospectus, (iii) the performance by the parties
to the Basic Documents of their respective obligations under the Basic
Documents, and (iv) the consummation of the transactions contemplated by the
Basic Documents, the Trust will not be required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended; and
(g) application has been made to the UK Listing Authority for the Class [
] Notes to be admitted to the Official List of the UK Listing Authority and to
the London Stock Exchange for the Class [ ] Notes to be admitted to trading
and all relevant requirements of the Listing Rules will have been complied with.
5. Covenants and Agreements.
------------------------
I. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the sale of
the Class [ ] Notes pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
-15-
(b) to notify the Representative and the CBA Parties promptly after it
becomes actually aware of any matter which would make any of its representations
and warranties in this Agreement untrue if given at any time prior to payment
being made to the Issuer Trustee on the Closing Date and take such steps as may
be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added, goods
and services or similar tax, fee or duty (including court fees) in relation to
the execution of, or any transaction carried out pursuant to, the Agreements or
in connection with the issue and distribution of the Class [ ] Notes or the
enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or before
the Closing Date of the conditions referred to in Section 6 below which relate
to the Issuer Trustee and, in particular (i) the Issuer Trustee shall execute
those of the Basic Documents not executed on the date hereof on or before the
Closing Date, and (ii) the Issuer Trustee will assist the Representative to make
arrangements with DTC, Euroclear and Clearstream concerning the issue of the
Class [ ] Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure that the
charges created by or contained in the Security Trust Deed are registered within
all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic Documents to
which it is a party which are required to be performed prior to or
simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit any
action to be taken which it knows or has reason to believe would result in the
Class [ ] Notes not being assigned the ratings referred to in Section 6(q)
below;
(h) not, prior to or on the Closing Date, amend the terms of any Basic
Document nor execute any of the Basic Documents other than in the agreed form
without the consent of the Underwriters;
(i) provided the Manager complies with Section 5.II.(r), the Issuer Trustee
will:
-16-
(i) sign and deliver to the UK Listing Authority a listing
application and copies of the Prospectus on or prior to the Closing
Date;
(ii) ensure that the Prospectus shall be approved as listing
particulars by or on behalf of the UK Listing Authority as required
by Section [144(2)] of the Financial Services Act and the Listing
Rules; and
(iii) ensure that two copies of the Prospectus shall be delivered to
the Registrar of Companies in England and Wales for registration as
required by Section [149] of the Financial Services Act, on or
before the date of publication thereof;
(j) to procure that if, after the Prospectus has been published and
following the admission of the Class [ ] Notes to the Official List of the UK
Listing Authority and admission of the Class [ ] Notes to trading on the
London Stock Exchange:
(i) there is a significant change affecting any matter contained in
the Prospectus the inclusion of which was required by Section [146]
of the Financial Services Act or by the Listing Rules or by the UK
Listing Authority or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of information in
respect of which would have been so required if it had arisen when
the Prospectus was prepared,
to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and, in accordance with the Listing Rules, to submit to the UK
Listing Authority for its approval and, if approved, publish a supplement to the
Offering Circular of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian Tax Act, it
will, before it issues any Class [ ] Note, seek a listing of the Class [ ]
Notes on the Official List of the UK Listing Authority and the admission of the
Class [ ] Notes to trading on the London Stock Exchange, and use its best
efforts to maintain such listing for as long as any of the Class [ ] Notes are
-17-
outstanding; provided, however, if such listing becomes impossible, to use their
best efforts to obtain, and will thereafter use its best efforts to maintain a
quotation for, or listing of, the Class [ ] Notes on such other exchange as
is commonly used for the quotation or listing of debt securities as they may,
with the approval of [ ], decide; and
(l) in connection with the initial distribution of the Class [A-2] Notes
and the Class B Notes, it and each person acting on its behalf (other than the
CBA Parties, each Affiliate of a CBA Party and the Managers (as defined in the
Dealer Agreement)) has not and will not offer for issue, or invite applications
for the issue of, the Class [A-2] Notes and the Class B Notes or offer the Class
[A-2] Notes and the Class B Notes for sale or invite offers to purchase the
Class [A-2] Notes and the Class B Notes to a person, where the offer or
invitation is received by that person in Australia, unless the minimum amount
payable for the Class [A-2] Notes or the Class B Notes (as the case may be)
(after disregarding any amount lent by any of the CBA Parties or any associate
(as determined under sections 10 to 17 of the Corporations Law) of any CBA
Party) on acceptance of the offer by that person is at least A$500,000 or the
offer or invitation otherwise does not require disclosure to investors in
accordance with Part 6D.2 of the Corporations Law.
II. The CBA Parties severally covenant and agree with each of the several
Underwriters and the Issuer Trustee as follows:
(a) in the case of the Manager only, to cause the Prospectus, properly
completed, and any supplement thereto, to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period prescribed
[and the Manager will cause the Note Term Sheet to be filed with the Commission
pursuant to a Current Report on Form 8-K within the second business day
following the first day the Note Term Sheet has been sent to a prospective
investor in the Notes and will provide evidence satisfactory to the Underwriters
of such timely filing] and to furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 a.m., New York City time, on the
Business Day next succeeding the date of this Agreement in such quantities as
the Representative may reasonably request;
(b) in the case of the Manager only, to deliver, at the expense of the
Manager, to the Representative, five signed copies of the Registration Statement
(as originally filed) and each amendment thereto, in each case including
exhibits, and to each other Underwriter a conformed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each case without
exhibits and,
-18-
during the period mentioned in paragraph (f) below, to each of the Underwriters
as many copies of the Prospectus (including all amendments and supplements
thereto and documents incorporated by reference therein) as the Representative
may reasonably request. The Manager will furnish or cause to be furnished to the
Representative copies of all reports required by Rule 463 under the Act;
(c) in the case of the Manager only, before filing any amendment or
supplement to the Registration Statement or the Prospectus, to furnish to the
Representative a copy of the proposed amendment or supplement for review and not
to file any such proposed amendment or supplement to which the Representative
reasonably objects;
(d) in the case of the Manager only, to advise the Representative
promptly, and to confirm such advice in writing, (i) when the Prospectus, and
any supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b) [and the Note Term Sheet shall have been filed pursuant to a Current
Report on Form 8-K], (ii) when any amendment to the Registration Statement has
been filed or becomes effective, (iii) when any supplement to the Prospectus or
any amendment to the Prospectus has been filed and to furnish the Representative
with copies thereof, (iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of any preliminary prospectus or the
Prospectus or the initiation or threatening of any proceeding for that purpose,
and (vi) of the occurrence of any event, within the period referenced in
paragraph (f) below, as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading and to use its best efforts to prevent the issuance of any such stop
order, or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending the qualification of
the Class [ ] Notes, or notification of any such order thereof and, if
issued, to obtain as soon as possible the withdrawal thereof;
(e) to advise the Representative promptly, and to confirm such advice in
writing of the receipt by a CBA Party of any notification with respect to any
suspension of the qualification of the Class [ ] Notes for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
-19-
(f) in the case of the Manager only, if, during such period of time
after the first date of the public offering of the Class [ ] 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 or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the CBA Parties, to the Underwriters and to the dealers (whose names and
addresses the Representative will furnish to CBA) to which Class [ ] Notes
may have been sold by the Representative on behalf of the Underwriters and to
any other dealers upon request, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law;
(g) in the case of the Manager only, to endeavor to qualify the Class [
] Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and to continue
such qualification in effect so long as reasonably required for distribution of
the Class [ ] Notes; provided that the Manager shall not be required to file
--------
a general consent to service of process in any jurisdiction;
(h) in the case of the Manager only, to make generally available to the
holders of the Class [ ] 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;
(i) in the case of the Manager only, so long as the Class [ ] Notes
are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual independent
certified public accountant's audit report on the financial statements furnished
to the Issuer Trustee pursuant to the Basic Documents by first class mail as
soon as practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as
-20-
soon thereafter as practicable, notice by telex or facsimile to the
Representative of the Pool Factor as of the related Record Date, (iv) copies of
all reports or other communications (financial or other) furnished to holders of
the Class [ ] Notes, and copies of any reports and financial statements
furnished to or filed with the Commission, any governmental or regulatory
authority or any national securities exchange, and (v) from time to time such
other information concerning the Trust or the CBA Parties as the Representative
may reasonably request;
(j) to the extent, if any, that the ratings provided with respect to the
Class [ ] Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by a CBA Party or the Issuer
Trustee, the relevant CBA Party shall use its best efforts to furnish such
documents and take any other such action or, in the case of the Issuer Trustee,
it will use its best efforts to procure the Issuer Trustee to do so;
(k) it will on behalf of the Issuer Trustee: (i) for the purposes of
128F of the Australian Tax Act, seek a listing of the Class [ ] Notes on the
Official List of the UK Listing Authority and the admission of the Class [ ]
Notes to trading on the London Stock Exchange before the Issuer Trustee issues
any Class [ ] Note, (ii) ensure that the Issuer Trustee will not offer, issue
or sell the Class [ ] Notes to the Underwriters, until the Class [ ]
Notes have been admitted to the Official List of the UK Listing Authority and to
trading on the London Stock Exchange or the Representative, on behalf of the
Underwriters, is satisfied that the Class [ ] Notes will be admitted after
the Closing Date and (iii) it will, use its best efforts to maintain such
listing for as long as any of the Class [ ] Notes are outstanding; provided,
however, if such listing becomes impossible, to use their best efforts to
obtain, and will thereafter use its best efforts to maintain a quotation for, or
listing of, the Class [ ] Notes on such other exchange as is commonly used
for the quotation or listing of debt securities as they may, with the approval
of [ ], decide;
(l) to furnish from time to time copies of the Prospectus and any and
all documents, instruments, information and undertakings (in addition to any
already published or lodged with the UK Listing Authority) and publish all
advertisements or other material and to comply with any other requirements of
the UK Listing Authority or the London Stock Exchange that may be necessary in
order to effect and maintain such listing;
-21-
(m) not to take, or cause to be taken, any action and will not knowingly
permit any action to be taken which it knows or has reason to believe would
result in the Class [ ] Notes not being assigned the rating referred to in
Section 6(q) below;
(n) in the case of the Manager only, to assist [ ] in making
arrangements with DTC, Euroclear and Clearstream concerning the issue of the
Book-Entry Notes and related matters;
(o) in the case of the Manager only, if required, to register the Class
[ ] Notes pursuant to the Securities Exchange Act of 1934, as amended, as
soon as reasonably practicable as such requirement comes into effect but no
later that when such registration may become required by law; in the case of CBA
only, whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated,
(p) to pay, or cause to be paid, all fees costs and expenses incident to
the performance of the CBA Parties' obligations under this Agreement, including,
without limiting the generality of the foregoing, all fees, costs and expenses:
(i) incident to the preparation, issuance, execution, authentication and
delivery of the Notes, including any fees, costs and expenses of the Class [ ]
Note Trustee or any transfer agent, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus [and the Note Term Sheet] (including
in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of
eligibility for investment of the Class [ ] Notes under the laws of such
jurisdictions as the Underwriters may designate (including fees of counsel for
the Underwriters and their disbursements with respect thereto), (iv) in
connection with the listing of the Notes on any stock exchange, (v) related to
any filing with National Association of Securities Dealers, Inc., (vi) in
connection with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Basic Documents, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration Statement
and the Prospectus, including mailing and shipping, as provided in this
Agreement, (vii) the CBA Parties' counsel and accountants and the Underwriters'
counsel fees and disbursement that are chargeable to CBA, and (viii) payable to
rating agencies in connection with the rating of the Notes. However, [ ]
shall be responsible for any expenses incurred by the CBA Parties in connection
with any "roadshow" presentation to potential investors;
-22-
(q) to indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issue tax, including any interest and penalties,
on the creation, issue and sale of the Class [ ] Notes in accordance with
this Agreement and on the execution and delivery of this Agreement and any value
added tax or goods and services tax payable in connection with any concessions,
commissions and other amounts payable or allowable by the Issuer Trustee; to
make all payments to be made by the CBA Parties or the Issuer Trustee under this
Agreement without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the relevant CBA
Party is compelled by law to deduct or withhold such taxes, duties or charges.
In that event, the relevant CBA Party shall pay such additional amounts as may
be necessary in order that the net amounts received after such withholding or
deduction shall equal the amount that would have been received if no withholding
or deduction had been made;
(r) in the case of the Manager only, to do all things necessary to
enable and cause the Issuer Trustee to:
(i) sign and deliver to the UK Listing Authority a listing
application and copies of the Prospectus on or prior to the Closing
Date;
(ii) cause the Prospectus to be approved as listing particulars by
or on behalf of the UK Listing Authority as required by Section
[144(2)] of the Financial Services Act and the Listing Rules; and
(iii) cause two copies of the Prospectus to be delivered to the
Registrar of Companies in England and Wales for registration as
required by Section [149] of the Financial Services Act, on or
before the date of publication thereof; and
(s) if, after the Prospectus has been published and following the
admission of the Class [ ] Notes to the Official List of the UK Listing
Authority and admission of the Class [ ] Notes to trading on the London Stock
Exchange:
(i) there is a significant change affecting any matter contained in
the Prospectus the inclusion of which was
-23-
required by Section [146] of the Financial Services Act or by the
Listing Rules or by the UK Listing Authority or by the London Stock
Exchange; or
(ii) a significant new matter arises the inclusion of information in
respect of which would have been so required if it had arisen when
the Prospectus was prepared,
to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and will, in accordance with the Listing Rules, submit to the UK
Listing Authority for its approval and, if approved, publish a supplement to the
Prospectus of the change or new matter;
(t) in connection with the initial distribution of the Class [A-2] Notes
and the Class B Notes, it and each person acting on behalf of the CBA Parties
(other than the Co-Managers (as defined in the Dealer Agreement), each of whom
has agreed and covenanted with the Issuer Trustee and the Manager, with
appropriate changes, as follows) has not and will not offer for issue, or invite
applications for the issue of, the Class [A-2] Notes and the Class B Notes or
offer the Class [A-2] Notes and the Class B Notes for sale or invite offers to
purchase the Class [A-2] Notes and the Class B Notes to a person, where the
offer or invitation is received by that person in Australia, unless the minimum
amount payable for the Class [A-2] Notes or the Class B Notes (as the case may
be) (after disregarding any amount lent by any of the CBA Parties or any
associate (as determined under sections 10 to 17 of the Corporations Law) of any
CBA Party) on acceptance of the offer by that person is at least A$500,000 or
the offer or invitation otherwise does not require disclosure to investors in
accordance with Part 6D.2 of the Corporations Law; and
(u) to procure that the charges created by or contained in the Security
Trust Deed are registered within all applicable time limits in all appropriate
registers.
III. Selling Restrictions
(a) No prospectus in relation to the Class [ ] Notes has been lodged
with, or registered by, the Australian Securities and Investments Commission or
the Australian Stock Exchange Limited. Accordingly, each of the Underwriters,
severally and not jointly, represents and agrees that it has not offered and
will not offer for issue and has not invited and will not invite applications
for the issue of the Class [ ] Notes or offer the Class [ ] Notes for
sale or invite offers to
-24-
purchase the Class [ ] Notes to a person, where the offer or invitation is
received by that person in Australia.
(b) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this Agreement, it will have
offered the Class [ ] Notes for sale, or invited or induced offers to buy the
Class [ ] Notes, in each case by:
(i) making each preliminary prospectus or the Prospectus
available for inspection on a Bloomberg source and inviting
potential investors to access the preliminary prospectus or the
Prospectus available on that Bloomberg source; or
(ii) making hard copies of each preliminary prospectus or the
Prospectus for the Class [ ] Notes available for collection
from that Underwriter in at least its principal office in New
York City or London and, in the case of purchasers in the United
States, by sending or giving copies of that preliminary
prospectus or the Prospectus to those purchasers.
(c) Each Underwriter agrees that it will not sell Class [ ] Notes
to, or invite or induce offers for the Class [ ] Notes from:
(i) any associate of the Issuer Trustee or a CBA Party
specified in Schedule II or Schedule III; or
(ii) any other associate from time to time specified in writing
to the Underwriter by the Issuer Trustee or a CBA Party.
(d) Each Underwriter, severally and not jointly, agrees to:
(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 5(III)(b); and
(ii) cooperate with reasonable requests from the Issuer Trustee
for information for the purposes of assisting the Issuer
-25-
Trustee to demonstrate that the public offer test under section
128F of the Tax Act has been satisfied in respect of the Class
[ ] Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any Class [ ] Note
or any information from which such identity might be capable
of being ascertained; or
(y) any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or
directive.
(e) Each Underwriter, severally and not jointly, represents and
agrees that it (i) has not offered or sold, and prior to admission of the Class
[ ] Notes to listing in accordance with Part IV of the Financial Services Act
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
their business or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulation 1995, as amended, or the Financial
Services Act, (ii) has complied with and will comply with all applicable
provisions of the Financial Services Act with respect to anything done by it in
relation to the Class [ ] Notes, in, from or otherwise involving the United
Kingdom, and (iii) has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the issue
of the Class [ ] Notes, other than any document which consists of, or any
part of, listing particulars, supplementary listing particulars or any other
document required or permitted to be published by listing rules under [Part IV]
of the Financial Services Act to a person who is a kind described in [Article
11(3) of the Financial Services Act (Investment Advertisements) (Exemptions)
Order 1996,] as amended, or is a person to whom the document may otherwise
lawfully be issued or passed on.
(f) Each Underwriter, severally and not jointly, acknowledges that no
action has been taken to permit a public offering of the Class [ ] Notes in
any jurisdiction outside the United States where action would be required for
that purpose. Each Underwriter will comply with all applicable securities laws
and
-26-
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.
IV. The Manager hereby directs the Issuer Trustee to do each of the things
(or, as the case may be, not to do the things) specified in Section 5.I. and the
Issuer Trustee acknowledges and accepts that direction.
6. Conditions to the Obligations of the Underwriters. The several
-------------------------------------------------
obligations of the Underwriters hereunder are subject to the performance by the
Issuer Trustee and the CBA Parties of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective, not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus used to confirm sales of the
Notes shall have been filed with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the rules and
regulations under the Securities Act and in accordance with Section 5(a) hereof;
[the Note Term Sheet shall have been filed with the Commission pursuant to a
Current Report on Form 8-K within two business days following the first day the
Note Term Sheet is first sent to prospective investors in the Notes;] ; and all
requests for additional information shall have been complied with to the
satisfaction of the Representative;
(b) the representations and warranties of the Issuer Trustee and the
CBA Parties contained herein are true and correct on and as of the Closing Date
as if made on and as of the Closing Date and the representations and warranties
of the Issuer Trustee and CBA Parties in the Basic Documents will be true and
correct on the Closing Date; and the Issuer Trustee and the CBA Parties shall
have complied with all agreements and all conditions on the part of each to be
performed or satisfied hereunder and under the Basic Documents at or prior to
the Closing Date;
(c) all actions required to be taken and all filings required to be
made by the Manager or the Issuer Trustee under the Securities Act prior to the
Closing Date for the Notes shall have been duly taken or made;
-27-
(d) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date: (x) there shall not have occurred any downgrading in
any rating accorded any securities of, or guaranteed by, CBA by any "nationally
recognized statistical rating organization" (as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act) to: (i) "A2" or worse in
the case of the rating accorded by Xxxxx'x Investors Service, Inc., (ii) "A" or
worse in the case of a rating accorded by Standard & Poor's Ratings Group or
(iii) the equivalent of "A2" or "A"or worse in the case of the rating accorded
by any other "nationally recognized statistical rating organization"nor (y)
shall any notice have been given of any intended or potential downgrading as is
referred to in subclause (x) of this paragraph (d);
(e) since the date of this Agreement, there shall not have been any
material adverse change or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Issuer Trustee or any of the CBA Parties, taken as a whole, 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;
(f) the Representative shall have received on and as of the Closing
Date a certificate of an Authorized Officer of the Issuer Trustee and each CBA
Party, with specific knowledge about the party's financial matters, satisfactory
to the Representative to the effect set forth in subsections (a) through (e) of
this Section;
(g) the Representative shall have received letters, of (i) [ ],
dated the date of delivery thereof, in form and substance satisfactory to the
Representative and counsel for the Underwriters, confirming that they are
independent public accountants within the meaning of the Securities Act and the
applicable Rules and Regulations and stating in effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Registration Statement and the Prospectus (and any amendments and supplements
thereto), agrees with the accounting records of CBA, excluding any questions of
legal interpretation; (ii) of [ ] dated the date of the computational
materials or Note
-28-
Term Sheets, in form and substance as previously agreed to by the Representative
and otherwise satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Representative as
a result of which they have determined that the information included in the
computational materials or Term Sheets (if any), provided by the Underwriters to
the [Manager] for filing on Form 8-K, is accurate and of (iii) [ ], dated
the date of delivery thereof, in form and substance satisfactory to the
Representative and counsel for the Underwriters, stating in effect that they
have performed certain specified procedures with respect to the Mortgage Loans;
(h) [ ], special United States counsel to the Underwriters, shall
have furnished to the Underwriters their written opinion, dated the Closing
Date, with respect to the Registration Statement, the Prospectus and other
related matters as the Underwriters may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(i) Xxxxx Xxxxx & Xxxxx, United States counsel for the CBA Parties,
shall have furnished to the Representative their written opinions, dated the
Closing Date, in form and substance satisfactory to the Representative, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(j) Xxxxx Xxxxx & Xxxxx, United States federal income tax counsel for
the CBA Parties shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(k) Xxxxxxx Xxx, Australian counsel for the CBA Parties, shall have
furnished to the Representative their written opinion, dated the Closing Date,
in form and substance satisfactory to the Representative, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(l) Xxxxxxx Xxx, Australian tax counsel for the CBA Parties, shall have
furnished to the Representative their written opinion, dated the Closing Date,
in form and substance satisfactory to the Representative, and such Australian
tax
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counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(m) [Mallesons Xxxxxxx Xxxxxx,] Australian counsel for the Issuer
Trustee and the Security Trustee, shall have furnished to the Representative
their written opinion, dated the Closing Date, in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(n) the Chief Solicitor and General Counsel of CBA shall have furnished
to the Representative their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(o) Counsel to the Interest Rate Swap Provider and Currency Swap
Providers shall have furnished to the Representative their written opinion dated
the Closing Date, in form and substance satisfactory to the Representative, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(p) the Representative shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in connection with
the transaction described in this Agreement which opinion is not otherwise
described in this Agreement allowing the Representative to rely on such opinion
as if it were addressed to the Representative;
(q) the Representative shall have received copies of letters from
Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Group and Fitch,
Inc. (the "Rating Agencies") stating that the Class [ ] Notes have been rated
AAA or its equivalent by the Rating Agencies;
(r) the Class [ ] Notes shall have been admitted to the Official List
of the UK Listing Authority and admitted to trading on the London Stock Exchange
or such other exchange as the parties shall agree upon or the Representative
shall be satisfied that such listing will be granted after the Closing Date but
in any event, prior to the first Payment Date for the Class [ ] Notes;
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(s) the Representative shall have received evidence satisfactory to it
and its counsel that on or prior to the Closing Date the Class [A-2] Notes and
the Class B Notes have been duly authorized, executed, authenticated, issued and
delivered pursuant to the Basic Documents; and
(t) on or prior to the Closing Date the Issuer Trustee and the CBA
Parties shall have furnished to the Representative such further certificates and
documents as the Representative shall reasonably request;
7. Indemnification and Contribution.
--------------------------------
(a) Each of the CBA Parties agrees jointly and severally to indemnify
and hold harmless each Underwriter, each affiliate of an Underwriter that
assists such Underwriter in the distribution of the Class [ ] Notes and each
person, if any, that controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against (x) any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the CBA
Parties shall have furnished any amendments or supplements thereto), [or the
Note Term Sheet] or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (y) any and all legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted caused by any untrue statement or alleged untrue statement of material
fact contained in any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated in or
necessary to make the statements in not misleading, except in (i) insofar as any
such losses, claims, damages, liabilities, legal fees and other expenses are
caused by any untrue statement or omission or alleged untrue statement or
omission made (A) in reliance upon and in conformity with information relating
to any Underwriter furnished to a CBA Party in writing by such Underwriter
through [ ] expressly for use therein or (B) in the Prepayment and Yield
Information (as defined in the next paragraph); or (ii) that such indemnity with
respect to any preliminary prospectus or the Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter) from whom
the person asserting any such loss, claim, damage or liability, purchased the
Class [ ] Notes which are the subject hereof, if such person did not receive
a
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copy of the Prospectus (or the Prospectus as amended or supplemented) at or
prior to the confirmation of the sale of such Class [ ] Notes to such person,
and where such delivery is required by the Securities Act and the alleged untrue
statement contained in, or omission of a material fact from (i) any preliminary
prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented) or (ii) the Prospectus was corrected in the Prospectus as amended
or supplemented;
For the purposes of this Agreement, the term "Prepayment and Yield
Information" means that portion of the information in any preliminary prospectus
or the Prospectus (or the Prospectus as amended or supplemented) set forth under
the sub-heading "Prepayment and Yield Considerations - Weighted Average Lives",
including the table entitled "Percent of Initial Principal Outstanding at the
Following Percentages of Constant Prepayment Rate", that is not Pool
Information; provided, however, that information set forth under that
sub-heading that is not Pool Information shall not constitute Prepayment and
Yield Information to the extent such information is inaccurate or misleading in
any material respect as a result of it being based on Pool Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished by magnetic tape, diskette or any other computer readable
format, or in writing to the Underwriters by any CBA Party regarding the
Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Manager, its directors, its officers who sign the Registration
Statement, the Issuer Trustee and CBA and each person that controls a CBA Party
or the Issuer Trustee within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the CBA Parties to each Underwriter, but only with reference to information
relating to such Underwriter furnished to the CBA Parties in writing by such
Underwriter through [ ] expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus
[or the Note Term Sheet].
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to subsection
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the
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Indemnified Person and any others the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters, each affiliate of any Underwriter which
assists such Underwriter in the distribution of the Notes and such control
persons of Underwriters shall be designated in writing by [ ] and any such
separate firm for the Manager, its directors, its officers who sign the
Registration Statement, CBA and the Issuer Trustee and such control persons of
each of the Issuer Trustee and the CBA Parties shall be designated in writing by
that party. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this subsection (c), the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought 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.
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(1)
(d) If the indemnification provided for in subsection (a) or (b) above
is unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such subsection, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the CBA Parties and
the Issuer Trustee on the one hand and the Underwriters on the other hand from
the offering of the Class [ ] Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the CBA Parties and the Issuer Trustee on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the CBA Parties and the Issuer Trustee on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the CBA Parties and the Issuer Trustee and the total underwriting
discounts and the commissions received by the Underwriters bear to the aggregate
public offering price of the Class [ ] Notes. The relative fault of the CBA
Parties and the Issuer Trustee on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by a CBA Party or the
Issuer Trustee or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The CBA Parties, the Issuer Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
--- ----
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by
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which the total price at which the Notes underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Class [ ] 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.
(e) The indemnity and contribution agreements contained in this Section
7 and the representations and warranties of the Issuer Trustee and the CBA
Parties set forth in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Issuer Trustee or a CBA Party, its
officers or directors or any other person controlling the Issuer Trustee or a
CBA Party and (iii) acceptance of and payment for any of the Class [ ] Notes.
(f) To the extent that any payment of damages by a CBA Party pursuant to
subsection (a) above is determined to be a payment of damages pursuant to
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 provisions
in any replacement of Prudential Standard).
8. Termination. Notwithstanding anything herein contained, this Agreement
-----------
may be terminated in the absolute discretion of [ ], by notice given to the
Issuer Trustee and each CBA Party, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the London Stock Exchange or the Australian Stock Exchange,
(ii) trading of any securities of or guaranteed by the Issuer Trustee or any CBA
Party
-35-
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York, Sydney
or London shall have been declared by either United States Federal, New York
State, Commonwealth of Australia, New South Wales State or United Kingdom
authorities, or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of [ ], is material and adverse and which, in the judgment
of [ ], 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
[ ] 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 [ ] and the Manager for the purchase
of such Notes are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-
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defaulting Underwriter or the CBA Parties and the Issuer Trustee. In any such
case either [ ] or the Manager shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by the
-------------------------
Underwriters, or any of them, because of any failure or refusal on the part of
the Issuer Trustee or a CBA Party to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Issuer Trustee or a
CBA Party shall be unable to perform its obligations under this Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, the CBA Parties
jointly and severally agree to reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Successors. This Agreement shall inure to the benefit of and be binding
----------
upon the CBA Parties, the Issuer Trustee, the Underwriters, each affiliate of
any Underwriter which assists such Underwriter in the distribution of the Class
[ ] Notes, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Notes from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. Certain Matters Relating to the Issuer Trustee.
----------------------------------------------
(a) The Issuer Trustee enters into this Agreement only in its capacity
as Trustee of the Trust and in no other capacity. A liability incurred by the
Issuer Trustee acting in its capacity as Issuer Trustee of the Trust arising
under or in connection with this Agreement is limited to and can be enforced
against the Issuer Trustee only to the extent to which it can be satisfied out
of Assets of the Trust out of which the Issuer Trustee is actually indemnified
for the liability. This limitation of the Issuer Trustee's liability applies
despite any other provision of this Agreement
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(other than section 12(c)) 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.
(b) Each Underwriter and each of the CBA Parties may not xxx the Issuer
Trustee in respect of liabilities incurred by the Issuer Trustee, acting in its
capacity as Issuer Trustee of the Trust, in any capacity other than as Issuer
Trustee of the Trust including seeking the appointment of a receiver (except in
relation to the Assets of the Series Trust), or a liquidator, an administrator
or any similar person to the Issuer Trustee or prove in any liquidation,
administration or arrangements of or affecting the Issuer Trustee (except in
relation to the Assets of the Trust).
(c) The provisions of this section 12 will not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not satisfied
because under the Master Trust Deed, this Agreement or any other Transaction
Document in relation to the Trust or by operation of law there is a reduction in
the extent of the Issuer Trustee's indemnification or exoneration out of the
Assets of the Trust, as a result of the Issuer Trustee's fraud, negligence or
wilful default (as defined in the Series Supplement).
(d) It is acknowledged that the Relevant Parties (as defined in the
Series Supplement) are responsible under the Basic Documents for performing a
variety of obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations and any breach
of representations and warranties under this Agreement) will be considered
fraudulent, negligent or a wilful default for the purpose of section 12(c) to
the extent to which the act or omission was caused or contributed to by any
failure by any Relevant Party (other than any person for whom the Issuer Trustee
is responsible or liable for in accordance with any Transaction Document) to
fulfil its obligations relating to the Trust or by any other act or omission of
a Relevant Party or any other such person.
13. Actions by Representative; Notices. Any action by the Underwriters
----------------------------------
hereunder may be taken by [ ] on behalf of the Underwriters, and any such
action taken by [ ] shall be binding upon the Underwriters. All notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to [ ]
(Facsimile No.: ); Attention: [ ]. Notices to CBA and the Manager shall
be given to it at Commonwealth Bank of Australia, 00 Xxxxxx Xxxxx, 0/xx/ Xxxxx,
Xxxxxx,
-00-
XXX, 0000 (Facsimile No.:(000) 0000-0000); Attention: [ ], Group Treasury.
Notices to the Issuer Trustee shall be given to it at Perpetual Trustees
Australia Limited, Xxxxx 0, Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000 (Facsimile
No.:(000) 0000-0000); Attention: Manager, Securitisation.
14. Counterparts; Applicable Law. This Agreement may be signed in
----------------------------
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
15. Submission to Jurisdiction. Each of the CBA Parties and the Issuer
--------------------------
Trustee submits to the non-exclusive jurisdiction of any Federal or State court
in the City, County and State of New York, United States of America, in any
legal suit, action or proceeding based on or arising under this Agreement and
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. Each of the CBA Parties and the Issuer Trustee waives, to the
extent permitted by law, the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of such legal suit, action
or proceedings any objection to the laying of the venue of any such suit, action
or proceeding in any Federal or State court in the City, County and State of New
York, United States of America. To the extent that each of the CBA Parties and
the Issuer Trustee or any of their respective properties, assets or revenues may
have or may hereafter become entitled to, or have attributed to it, any right of
immunity from any legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment, or from
execution of a judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of a judgment, in any such jurisdiction, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with the issuance of the Class [ ] Notes or this
Agreement, each of the CBA Parties and the Issuer Trustee hereby irrevocably and
unconditionally waives and agrees not to plead or claim any such immunity and
consents to such relief and enforcement.
16. Appointments of Process Agent.
-----------------------------
(a) Each of the CBA Parties hereby designates and appoints Commonwealth
Bank of Australia, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (Attention: [Xxx
Xxxxxxxx]) (the "CBA Process Agent"), as its authorized agent, upon
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whom process may be served in any legal suit, action or proceeding based on or
arising under or in connection with this Agreement, it being understood that the
designation and appointment of Commonwealth Bank of Australia, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (Attention: [Xxx Xxxxxxxx]) as such authorized agent
shall become effective immediately without any further action on the part of the
each of the CBA Parties. Such appointment shall be irrevocable to the extent
permitted by applicable law and subject to the appointment of a successor agent
in the United States on terms substantially similar to those contained in this
Section 16 and reasonably satisfactory to [ ]. If the CBA Process Agent shall
cease to act as agent for service of process, each of the CBA Parties shall
appoint, without unreasonable delay, another such agent, and notify [ ] of
such appointment. Each of the CBA Parties represents to the Underwriters that it
has notified the CBA Process Agent of such designation and appointment and that
the CBA Process Agent has accepted the same in writing. Each of the CBA Parties
hereby authorizes and directs the CBA Process Agent to accept such service. Each
of the CBA Parties further agrees that service of process upon the CBA Process
Agent and written notice of that service to it shall be deemed in every respect
effective service of process upon it in any such legal suit, action or
proceeding. Nothing in this Section 16 shall affect the right of any Underwriter
or any person controlling any Underwriter to serve process in any other manner
permitted by law.
(b) The Issuer Trustee hereby designates and appoints [ ] (the "IT
Process Agent"), as its authorized agent, upon whom process may be served in any
legal suit, action or proceeding based on or arising under or in connection with
this Agreement, it being understood that the designation and appointment of [
] as such authorized agent shall become effective immediately without any
further action on the part of the Issuer Trustee. Such appointment shall be
irrevocable to the extent permitted by applicable law and subject to the
appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 16 and reasonably satisfactory to [
]. If the IT Process Agent shall cease to act as agent for service of process,
the Issuer Trustee shall appoint, without unreasonable delay, another such
agent, and notify [ ] of such appointment. The Issuer Trustee represents to
the Underwriters that it has notified the IT Process Agent of such designation
and appointment and that the IT Process Agent has accepted the same in writing.
The Issuer Trustee hereby authorizes and directs the IT Process Agent to accept
such service. The Issuer Trustee further agrees that service of process upon the
IT Process Agent and written notice of that service to it shall be deemed in
every respect
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effective service of process upon it in any such legal suit, action or
proceeding. Nothing in this Section 16 shall affect the right of any Underwriter
or any person controlling any Underwriter to serve process in any other manner
permitted by law.
17. Currency Indemnity. The obligations of the parties to make payments
------------------
under this Agreement are in U.S. dollars. Such obligations shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than U.S. dollars or any other realization in
such other currency, whether as proceeds of set-off security, guarantee,
distributions, or otherwise, except to the extent to which such tender recovery
or realization shall result in the receipt by the party which is to receive such
payment of the full amount of the U.S. dollars expressed to be payable under
this Agreement. The party liable to make such payment agrees to indemnify the
party which is to receive such payment for the amount (if any) by which the full
amount of U.S. dollars exceeds the amount actually received, and, in each case,
such obligation shall not be affected by judgment being obtained for any other
sums due under this Agreement. The parties agree that the rate of exchange which
shall be used to determine if such tender, recovery or realization shall result
in the receipt by the party which is to receive such payment of the full amount
of U.S. dollars expressed to be payable under this Agreement shall be the noon
buying rate in New York City for cable transfers in such foreign currency as
certified for customs purposes by the Federal Reserve Bank of New York of the
business day preceding that on which the judgment becomes a final judgment or,
if such noon buying rate is not available, the rate of exchange shall be the
rate at which in accordance with normal banking procedures [ ] could
purchase United States dollars with such foreign currency on the business day
preceding that on which the judgment becomes a final judgment.
-41-
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
COMMONWEALTH BANK OF
AUSTRALIA
By:_______________________
Name:
Title:
SECURITISATION ADVISORY
SERVICES PTY LIMITED
By:_______________________
Name:
Title:
PERPETUAL TRUSTEE COMPANY
LIMITED in its capacity as
Trustee of the Trust
By:_______________________
Name:
Title:
Accepted: [ ]
[ ]
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
By:___________________________
Name:
Title:
-42-
SCHEDULE I
----------
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
--------------------------
Underwriter
-----------
[ ]................................... US$[ ]
[ ] .................................. US$[ ]
[ ] .................................. US$[ ]
[ ] .................................. US$[ ]
[ ] .................................. US$[ ]
---------------
Total ............... US$[ ]
-43-
SCHEDULE II
-----------
List of 128F(9) Associates of the Issuer Trustee
------------------------------------------------
[Perpetual Trustees Australia Ltd
Perpetual Trustee Company Ltd
Perpetual Trustees Nominees Ltd
ACT Nominees Ltd
Perpetual Custodians Ltd
Perpetual Trust Services Limited... (formerly Perpetual Trust Limited)
Hunter Nominees Pty Ltd
PT Limited
Perpetrust Nominees Pty Ltd
Perpetual Australia Property Services (NSW) Pty Ltd...(formerly Perpetual
Realty Pty Limited)
Perpetual Service Network Pty Limited
Investor Marketplace Limited
ASX Perpetual Registrars Limited
Australian Trustees Pty Limited
Australian Trustees Limited
Commonwealth Trustees Pty Limited
Perpetual Services Pty Ltd
Perpetual Australia Pty Limited
Perpetual Nominees Limited... (formerly PTA Nominees Limited)
Perpetual Investment Management Limited... (formerly Perpetual Management
Limited)
Perpetual Trustees SA Limited
Perpetual Australia Property Services (Canberra) Pty Limited
Perpetual Australia Property Services (QLD) Pty Limited
Perpetual Australia Property Services (SA) Pty Limited
Queensland Trustees Pty Limited
Perpetual Fund Services Limited
Perpetual Superannuation Limited
Perpetual Assets Pty Ltd
Perpetual Asset Management Ltd
Perpetual Trustees Victoria Ltd
Perpetual Executors Nominees Ltd
Midway Nominees Pty Ltd
Perpetual Australia Property Services (VIC) Pty Ltd... (formerly Queenstreet
Properties Pty Limited)
Corbun Nominees Pty Ltd
Perpetual Trustees Queensland Ltd
Perpetual Trustee Company (Canberra) Ltd
Charleville Leasing Ltd
Perpetual Trustees W.A. Ltd
Xxxxxxxx Holdings Pty Ltd
Perpetual Australia Property Services (WA) Pty Ltd.... (formerly Perpetual
Property Agency Pty Limited)
-44-
Perpetual Custodians WA Pty Ltd
Terrace Guardians Ltd
Selwest Pty Ltd
WA Trustee Nominees Pty Ltd
Perpetual Trustees Consolidated Limited (formerly AXA Trustees Limited)
Perpetual Nominees Canberra Limited (formerly N.M.L. Nominees (Canberra)
Limited)
Perpetual Custodian Nominees Pty Ltd. (formerly T&G Guardian Corporation Pty
Ltd)
Perpetual Victoria Nominees Pty Ltd. (formerly National Trustee nominees
Proprietary Limited)]
-45-
SCHEDULE III
------------
List of 128F(9) Associates of the CBA Parties
---------------------------------------------
[AEFC Investments Pty Limited
Alliance Group Holdings
Antarctic Shipping Pty Ltd
Aquasten Pty Limited
ASB Bank Limited
ASB Finance Limited
ASB Group Limited
ASB Life Limited
ASB Management Services Limited
ASB Properties Limited
ASB Superannuation Nominees Limited
Australian Bank Limited
Australian TIC Management Pty Limited
Ayudhya CMG Life Assurance PLC
Balga Pty Limited
Xxx Xxxx CMG Life Insurance Company
Berhark Pty Ltd (NSW)
Better Off Ltd (NZ)
Binya Pty Limited
BIZserv Pty Limited
Brookhollow Ave Pty Limited
CBA Corporate Services (NSW) Pty Limited
CBA Corporate Services (VIC) Pty Limited
CBA (Delaware) Finance Incorporated
CBA (Europe) Finance Limited
CBA Asia Limited
CBA EDSA IT Assets Partnership
CBA Funding (NZ) Limited
CBA Indemnity Co. Pty Limited
CBA International Finance Pty Limited
CBA Investments (No 2) Pty Ltd
CBA Investments Limited
CBA Investment Trust
CBA Rail & Tram Company Pty Limited
CBA Specialised Financing Limited
CB-CLA Limited
CBCL Xxxxxxxxx Xxxxx International Pty Ltd.
CBCL Australia Securities Limited
CBCL Fixed Interest Limited
CBFC Leasing Pty Limited
CBFC Properties Pty Limited
CBCL Holdings Australia Limited
CBCL KNS Nominees Pty Ltd
CBCL May Xxxxxx Limited
CBCL Xxxxxx Nominess Pty Ltd
CBCL Property Finance Limited
CBCL Finance Limited
CBCL Property Services Limited
CBCL Xxxxx Australia Pty Ltd
CBCL Subholdings Australia Limited
CBFC Leasing Pty Limited
CBFC Limited
XX Xxxxxxx Ltd (UK)
Central Real Estate Holdings
Corporation
Central Real Estate Holdings Group
CFM (ADF) Limited
CFML Nominees Pty Limited
CIM Unit Trust Managers Ltd (UK)
China Life CMG Life Assurance Company Limited
Chullora Equity Investments (No1) Pty Limited
Chullora Equity Investments (No.2) Pty Limited
Chullora Equity Investments (No.3) Pty Limited
CIF (Xxxxxxxxx) Pty Limited
CISL (Xxxxxxxxx) Pty Limited
CLL Investments Limited Australia
CMG Asia Life Holdings Limited
CMG Asia Limited
CMG Asia Pensions and Retirements Ltd
CMG Asia Pty Limited
CMG Asia (Phillipines) Holding Limited (Bermuda)
CMG Asia Trustee Company Ltd (HK)
CMG CH China Funds Management Limited
CMG CH China Funds Management Ltd (VIC)
CMG First State (HK) LLC
CMG First State Investment Managers (Asia) Limited
CMG First State Investments (Bermuda) Ltd (Bermuda)
CMG First State Investments (Hong Kong) Ltd
CMG First State Investments (Singapore) Ltd (Singapore)
CMG First State Nominees (HK) Ltd (Hong Kong)
CMG First State Singapore Ltd
CMG Health Co Inc (Phillipines)
CMG Holding (Thailand) Co Ltd (Thailand)
CMG Life Insurance Co Inc
CMG Plans Inc (Phillipines)
CMG Xxxxx (China) Investment Management Limited
Colonial Asset Management Ltd (NSW)
Colonial Assurance Co of Australia & New Zealand Pty Ltd (VIC)
Colonial Australian Superannuation Ltd (NSW)
Colonial First State (UK) Holdings Ltd (UK)
Colonial First State Fund Managers Ltd (UK)
Colonial First State Fund Services Ltd (VIC)
Colonial First State Investments (Australia) Ltd (NSW)
Colonial First State Investments (Fiji) Limited
Colonial First State Investments (NZ) Limited
Colonial First State Investments Group Limited
Colonial First State Managed Services Limited
Colonial First State Limited (UK)
Colonial First State Private Equity Ltd (NSW)
Colonial First State Private Ltd (NSW)
Colonial First State Projects Pty Ltd (VIC)
Colonial First State Property Limited
Colonial First State Prop Holdings No. 3 Pty Ltd (VIC)
Colonial First State Property (NZ) Ltd (NZ)
Colonial First State Property Funds Management Ltd (VIC)
Colonial First State Property Holdings No. 2 Pty Ltd (VIC)
-46-
Colonial First State Property Investment Ltd (NSW)
Colonial Franchise Services Ltd (NZ)
Colonial Healthcare (Fiji) Limited
Colonial Holding Company (No.2) Pty Limited
Colonial Holding Company NZ Limited
Colonial Holding Company Pty Limited
Colonial Insurance Services Pty Limited
Colonial International Holdings Pty Limited
Colonial Investment Co of Aust. Pty Ltd (VIC)
Colonial Investment Services Limited
Colonial Investments Holding Pty Limited
Colonial LGA Holdings Limited
Colonial Life (NZ) Limited
Colonial Mutual Funds Limited
Colonial Mutual Property Group Ltd (VIC)
Colonial Mutual Superannuation Pty Limited
Colonial Nominees No. 3 Fund Pty Ltd (VIC)
Colonial PCA Holdings Pty Limited
Colonial PCA Properties Ltd (VIC)
Colonial PCA Pty Ltd (VIC)
Colonial PCA Services Limited
Colonial Portfolio Services Limited
Colonial Promotions Pty Limited
Colonial Protection Insurance Pty Limited
Colonial Service Corporation New Zealand Limited
Colonial Service (NZ) Ltd (NZ)
Colonial Services (Fiji) Limited
Colonial Services Pty Limited
Colonial Stockbroking Limited
Colonial Superannuation (NZ) Ltd (NZ)
Colonial Superannuation Services Ltd (NSW)
Colonial Tasman Pty Ltd
Colonial Trade Services (Hong Kong) Ltd (HK)
Colonial Trustee Services (NZ) Ltd (NZ)
Colonial Trustee (NZ) Ltd (NZ)
Colonial UK Staff Pension Trustees Ltd (UK)
Commonwealth Bank Officers Superannuation Corporation Pty Ltd
Commonwealth Capital Corporation Limited
Commonwealth Capital Limited
Commonwealth Custodial Services Limited
Commonwealth Development Bank of Australia Limited
Commonwealth Diversified Credit Fund
Commonwealth Funds Management Limited
Commonwealth Insurance Holdings Limited
Commonwealth Insurance Limited
Commonwealth Investment Services Limited
Commonwealth Investments Pty Limited
Commonwealth Life Limited Australia
Commonwealth Managed Investments Limited
Commonwealth Property Limited
Commonwealth Securities (Japan) Pty Limited
Commonwealth Securities Limited
COMPAM Property Management Pty Limited
Computer Fleet Management
Comsec Nominees Pty Limited
Continental Assurance Pty Ltd (NSW)
CSI Services (UK) Ltd (UK)
CST Securitisation Management Limited
CTB Australia Limited
Darontin Pty Limited
Direct Australian Pty Limited
EDS (Australia) Pty Limited
Electronic Financial Technologies Pty Ltd
Emerald Holding Company Limited
EON CMG Life Assurance Bhd
Fleet Care Services Pty Limited
First Australian Pty Limited
First Custodial Services Pty Ltd (VIC)
Goldstar Mortgage Management Pty Limited
Xxxxxx-Xxxxxxxx Ltd and its subsidiaries
Harford Pty Limited
Homepath Pty Limited
Xxxxxxxxx Investment Company Pty Limited
Infravest (No. 1) Limited
Infravest (No. 2) Limited
IPAC Securities Limited
Investors Life Insurance Co of Australia Pty Ltd (VIC)
Xxxxxxx Xxxxxx Industry Funds Administration Pty Limited
Xxxxxxx Xxxxxx Pty Limited
Leaseway Transportation Pty Limited
LG Inc (Panama)
Xxxxx and Associates Limited
Micropay Pty Limited
National Bank of Fiji Limited
Nimitz Nominees Pty Ltd (VIC)
Onslow Properties Pty Ltd (NSW)
Perpetual Stock Pty Limited
Premier Financial Planning Group Ltd (NSW)
Prevbana Ltd (VIC)
Property Internet PLC
PT Astra CMG Life
PT Bank BII Commonwealth
Puerto Limited
Retail Investor Pty Limited
Roodhill Nominees Limited (UK)
RVG Administration Company Pty Ltd
Sasebo Pty Ltd
SBN Nominees Pty Ltd (VIC)
SBV Asia Limited
SBV Nominees Limited
SBV Staff Superannuation Pty Limited
Senator House Investments (UK) Limited
Series 1999-1 Credit Linked Trust
Share Direct Nominees Pty Limited
Share Investments Pty Limited
Southcap Pty Ltd (VIC)
Sovereign Limited
Sparad (No. 20) Pty Limited
Sparad (No. 24) Pty Limited
Sparad (No. 29) Pty Limited
Sparad (No. 30) Pty Limited
Sparad (No. 31) Pty Limited
State Bank of New South Wales Limited
State Nominees Ltd (NSW)
Xxxxxxx Xxxxx Group ESOP Trustee Ltd
Xxxxxxx Xxxxx (Holdings) Ltd (UK)
-47-
Xxxxxxx Xxxxx and Company (International) Ltd (UK)
Xxxxxxx Xxxxx and Company Ltd (UK)
Xxxxxxx Xxxxx Nominees Ltd (VIC)
Xxxxxxx Xxxxx UnitTrust Managers Ltd (UK)
Xxxxxxx Xxxx Ltd (UK)
Super Partners Pty Ltd (VIC)
Super Trustees of New Zealand Ltd (NZ)
Tactical Global Management Ltd (NZ)
The Colonial Mutual Life Assurance Society Limited
Tracker Index Management Ltd (NSW)
Wilshire 10880 Corporation
Wilshire 10960 Corporation]
