EXECUTION VERSION
UNDERWRITING AGREEMENT
US$2,000,000,000 Class A-1 Mortgage-Backed Floating Rate Notes Due 2037
Perpetual Trustee Company Limited
MEDALLION TRUST SERIES 2006-1G
UNDERWRITING AGREEMENT
Credit Suisse Securities (USA) LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
HSBC Bank plc
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Commonwealth Bank of Australia
Level 0
00 Xxxxxx Xxxxx
Xxxxxx, XXX, 0000
March 7, 2006
Ladies and Gentlemen:
Perpetual Trustee Company Limited, ABN 42 000 001 007, a company
incorporated in Australia and registered in New South Wales ("PERPETUAL"),
acting in its capacity as trustee of the Medallion Trust Series 2006-1G (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 Australia and incorporated in the Australian
Capital Territory, as manager of the Trust (the "MANAGER"), proposes to sell to
the several Underwriters listed in Schedule I to this Agreement (the
"UNDERWRITERS"), US$2,000,000,000 aggregate principal amount of Class A-1
Mortgage-Backed Floating Rate Notes due 2037 (the "CLASS A-1 NOTES or the
"OFFERED NOTES") issued by the Issuer Trustee. The Manager is a wholly-owned
subsidiary of Commonwealth Bank of Australia, ABN 48 123 123 124, a company
incorporated in Australia and incorporated in the Australian Capital Territory,
Australia ("CBA").
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TABLE OF CONTENTS
PAGE
1. PURCHASE AND SALE .......................................................3
2. OFFERING ................................................................4
3. DELIVERY AND PAYMENT ....................................................4
4. REPRESENTATIONS AND WARRANTIES ..........................................4
I. Representations and Warranties of the Issuer Trustee .............4
II. Representations and Warranties of the CBA Parties ................7
III. Representations and Warranties of the Manager ...................10
5. COVENANTS AND AGREEMENTS ...............................................12
X. Xxxxxxxxx and Agreements of the Issuer Trustee ..................12
II. Covenants and Agreements of the CBA Parties .....................14
III. Selling Restrictions ............................................18
IV. Manager Direction to Issuer Trustee .............................21
X. Xxxxxxxxx and Agreements of the Underwriters ....................21
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS ......................28
7. INDEMNIFICATION AND CONTRIBUTION .......................................31
8. TERMINATION ............................................................35
9. EFFECTIVENESS OF AGREEMENT; DEFAULT OF UNDERWRITERS ....................35
10. EXPENSES UPON TERMINATION ..............................................36
11. SUCCESSORS .............................................................36
12. CERTAIN MATTERS RELATING TO THE ISSUER TRUSTEE .........................36
13. ACTIONS BY REPRESENTATIVE; NOTICES .....................................37
14. COUNTERPARTS; APPLICABLE LAW ...........................................37
15. SUBMISSION TO JURISDICTION .............................................37
16. APPOINTMENTS OF PROCESS AGENT ..........................................38
17. CURRENCY INDEMNITY .....................................................39
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The Offered 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 Offered 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 March 3, 2006 (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 Homepath Pty Limited, ABN 35 081 986 530
("HOMEPATH") (in such capacity, the "SELLERS") and will be serviced for the
Issuer Trustee by CBA (in such capacity, the "SERVICER").
The Trust was created pursuant to a master trust deed dated October 8,
1997, as amended from time to time (the "MASTER TRUST DEED") between the Manager
and Perpetual and a series supplement dated March 3, 2006 (the "SERIES
SUPPLEMENT"), between CBA (as Seller and Servicer), Homepath, the Manager and
the Issuer Trustee, which describes, among other things, the Trust and the
underlying cash flow relating to the Offered Notes. The Offered Notes will be
issued pursuant to an Offered Note Trust Deed dated March 3, 2006 among the
Issuer Trustee, the Manager and The Bank of New York, (the "OFFERED NOTE
TRUSTEE").
The Class A-1 Notes will be issued in an aggregate principal amount of
US$2,000,000,000 which is equal to approximately 48.96% of the aggregate balance
of the Mortgage Loans as of the Cutoff Date. The Class A-2 Notes will be issued
in an aggregate principal amount of A$2,000,000,000 which is equal to
approximately 36.60% of the aggregate balance of the Mortgage Loans as of the
Cutoff Date. The Class A-3 Notes will be issued in an aggregate principal amount
of (euro)450,000,000 which is equal to approximately 13.23% of the aggregate
balance of the Mortgage Loans as of the Cutoff Date. The Class B Notes will be
equal to approximately 1.21% of the aggregate principal amount of the Mortgage
Loans as of the Cutoff Date. The assets of the Trust will also secure under the
Security Trust Deed, among other things, any Redraw Bonds (as defined in the
Series Supplement) that may be issued after the date of this Agreement and the
Issuer Trustee's obligations under the Liquidity Facility. The Class A-2 Notes,
Class B Notes and the Redraw Bonds are collectively referred to as the "A$
SECURITIES." The Class A-3 Notes are referred to as the "(EURO) SECURITIES." The
Offered Notes, the Class A-3 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 "SEC") in accordance with the provisions of the Securities Act
of 1933, as amended, and the rules and regulations of the SEC thereunder
(collectively, the "SECURITIES ACT"), a registration statement (Reg. No.
333-127026), including a prospectus, relating to the Offered Notes. The
registration statement as amended at the time when it became effective, or, if
any post-effective amendment has been filed with respect thereto, as amended by
the most recent post-effective amendment at the time of its effectiveness, is
referred to in this Agreement as the "Registration Statement", the form of base
prospectus included in the Registration Statement as most recently filed with
the SEC is referred to as the "BASE PROSPECTUS" and the form of the prospectus
which
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includes the Base Prospectus and a prospectus supplement describing the Offered
Notes and the offering thereof (the "PROSPECTUS SUPPLEMENT") which prospectus is
first filed on or after the date of this Agreement in accordance with Rule
424(b) is referred to in this Agreement as the "PROSPECTUS". Any preliminary
form of the Prospectus Supplement to be filed pursuant to Rule 424(b) is
referred to as a "PRELIMINARY PROSPECTUS SUPPLEMENT" and, together with the Base
Prospectus, and as amended or supplemented if the Manager shall have furnished
any amendments or supplements thereto, a "PRELIMINARY PROSPECTUS."
When used in this Agreement, "BASIC DOCUMENTS" shall mean collectively:
the Master Trust Deed (in so far as it applies to the Trust), the Series
Supplement, the Notes, the Security Trust Deed, the Offered Note Trust Deed, the
Agency Agreement, the Dealer Agreement, the Subscription Agreement, the
Liquidity Facility Agreement, the Standby Redraw Facility Agreement, the
Currency Swap Agreement, the Interest Rate Swap Agreement, the Mortgage
Insurance Policy, any other document which is agreed to by the Manager and the
Issuer Trustee to be a Transaction Document in relation to the Trust under
clause 1.6(a)(i) of the Series Supplement, the DTC Letter of Representations,
any undertakings given to the Euroclear System ("EUROCLEAR") or Clearstream
Banking, societe anonyme ("CLEARSTREAM, LUXEMBOURG") in connection with the Book
Entry Notes, and any other contract, agreement or instrument which is specified
in the draft settlement agenda dated February 28, 2006 prepared by Xxxxxxx Xxx
in connection with the issuance and sale of the Notes. CBA and the Manager are
each a "CBA PARTY" and collectively are referred to as the "CBA PARTIES".
"EFFECTIVE DATE" shall mean the earlier of the date on which the Prospectus
Supplement is first used and the time of the first Contract of Sale to which
such Prospectus Supplement relates. The initial effective date of the
Registration Statement was within three years of the Closing Date. "RULE 424"
refers to such rule under the Securities Act.
In addition, the following terms shall have the following meanings:
(i) "ABS INFORMATIONAL AND COMPUTATIONAL MATERIALS" shall
have the meaning given such term in Item 1101 of Regulation
AB.
(ii) "APPROVED OFFERING MATERIALS" means the Preliminary
Prospectus that CBA or the Manager identifies in writing to
the Underwriters as "Approved Offering Materials."
(iii) "CONTRACT OF SALE" has the same meaning as in Rule 159
of the Securities Act Regulations and all SEC guidance
relating to Rule 159.
(iv) "FREE WRITING PROSPECTUS" shall have the meaning given
such term in Rules 405 and 433 of the Securities Act
Regulations.
(v) "ISSUER FREE WRITING PROSPECTUS" shall have the meaning
given such term in Rule 433 of the Securities Act Regulations.
(vi) "ISSUER INFORMATION" shall mean any "issuer
information" as defined in Rule 433(h) of the Securities Act
Regulations and footnote 271 of SEC Release No. 33-8591
(Securities Offering Reform) and identified
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by the Manager as Issuer Information and relating to the
Offered Notes or the offering thereof.
(vii) "PERMITTED ADDITIONAL MATERIALS" shall mean
information that is not ABS Informational and Computational
Materials and (x) that are referred to in Section 5(V)(f)(iii)
so long as any Issuer Information provided by the Underwriter
pursuant to Section 5(V)(f)(iii) is limited to information
included within the definition of ABS Informational and
Computational Materials, (y) that constitute Offered Note
price, yield, weighted average life, subscription or
allocation information, or a trade confirmation, or (z)
otherwise with respect to which the Manager has provided
written consent to the Underwriter to include in a Free
Writing Prospectus.
(viii) "POOL INFORMATION" means the information furnished by
magnetic tape, diskette or any other computer readable format,
or in writing to the Underwriter by any CBA Party regarding
the Mortgage Loans.
(ix) "UNDERWRITER DERIVED INFORMATION" shall refer to
information of the type described in clause (5) of footnote
271 of SEC Release No. 33-8591 (Securities Offering Reform)
when prepared by the Underwriters, including traditional
computational and analytical materials prepared by the
Underwriters.
(x) "UNDERWRITER FREE WRITING PROSPECTUS" shall mean all
Free Writing Prospectuses prepared by or on behalf of the
Underwriters other than any Underwriter Prepared Issuer FWP,
including any Permitted Additional Materials.
(xi) "UNDERWRITER PREPARED ISSUER FWP" shall mean any Free
Writing Prospectus prepared by or on behalf of the Underwriter
that contains any Issuer Information, including any Free
Writing Prospectus or portion thereof prepared by or on behalf
of the Underwriter that contains only a description of the
final terms of the Offered Notes or of the offering of the
Offered Notes.
(xii) "WRITTEN COMMUNICATION" shall have the meaning given
such term in Rule 405 of the Securities Act Regulations.
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.
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Each of the CBA Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
2. Purchase and Sale.
(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 Offered
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
Offered 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 commissions in the net sum of US$1,200,000
with respect to the Offered Notes (the "COMMISSION").
(c) The Underwriters agree to pay for any expenses incurred by the
CBA Parties in connection with any "roadshow" presentation to potential
investors.
3. Offering. The CBA Parties and the Issuer Trustee understand that the
Underwriters intend to make a public offering of their respective portions of
the Offered Notes upon the terms set forth in the Prospectus as soon after (A)
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of Deutsche Bank
Securities Inc., HSBC Bank plc and Credit Suisse Securities (USA) LLC (the
"JOINT BOOK RUNNERS") is advisable.
4. Delivery and Payment. Payment for the Offered Notes shall be made by
wire transfer in immediately available funds to the account specified by the
Issuer Trustee to the Underwriters no later than 12:00 noon, New York City time
on March 14, 2006, or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as the Joint Book Runners 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 A-1 Notes shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of one or more fully registered global book-entry notes
(the "CLASS A-1 BOOK-ENTRY NOTES") representing US$2,000,000,000 in aggregate
principal amount of Class A-1 Notes, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Class A-1 Notes duly
paid by the Issuer Trustee. The Class A-1 Book-Entry Notes will be made
available for inspection by the Underwriters at the offices of Xxxxx Xxxxx, Xxxx
& Maw LLP 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.
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5. Representations and Warranties.
I. Representations and Warranties of the Issuer Trustee.
The Issuer Trustee represents and warrants to each Underwriter and the CBA
Parties as of the date of this Agreement and as of the Closing Date, and agrees
with each Underwriter and the CBA Parties, that:
(a) since the respective dates as of which information is provided
in the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change in or affecting the
general affairs, business, prospects, management, or results of operations,
condition (financial or otherwise) of Perpetual or the Trust except as disclosed
in the Prospectus which is material in the context of performing the Issuer
Trustee's obligations and duties under the Notes and each Basic Document to
which it is or is to be party;
(b) Perpetual has been duly incorporated and is validly existing
as a corporation under the laws of Australia, with power and authority
(corporate and other) to conduct its business as described in the Prospectus,
and to enter into and perform the Issuer Trustee's obligations under this
Agreement and the Basic Documents and Perpetual has been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents;
(c) Xxxxxxxxx has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by Perpetual, and, when
the Offered Notes have been issued (and duly authenticated by the Offered 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 Offered 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 it is a party or by which it or any of
its properties is bound, except in the case of (ii), for violations and defaults
which
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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 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 SEC 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 Offered 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 U.S. federal or
Australian federal or state income, excise, franchise or similar tax attributes
of the Offered 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 Offered Notes or the marketability of the Offered Notes;
(h) the representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might reduce,
limit or otherwise adversely affect the right of the Issuer Trustee to be
indemnified from the assets of the Trust under Clause 16 of the Master Trust
Deed;
(j) Perpetual has not taken any corporate action and (to the best
of its knowledge and belief having made reasonable inquiry and investigation) no
other steps have been taken or legal proceedings been started or threatened
against it for its winding-up,
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dissolution or reorganization or for the appointment of a receiver, receiver and
manager, administrator, provisional liquidator or similar officer of it or of
any or all its assets;
(k) in reliance on the legal opinion specified in Section 7(l) of
this Agreement, 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 Offered Notes,
no withholding or deduction for any taxes, duties, assessments or governmental
charges of whatever nature will be imposed or made for or on account of any
income, registration transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein or thereof
having power to tax in such jurisdiction, in connection with (i) the
authorization, execution or delivery of any of the Basic Documents to which it
is or is to be a party or with the authorization, execution, issue, sale or
delivery of the Offered Notes under this Agreement, (ii) the sale and delivery
of the Offered 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 Offered
Notes; except, in the case of sub clause (iii), for any of the Basic Documents
on which nominal stamp duty is payable or any other document executed in
connection with the perfection of the Issuer's Trustee's legal title to the
Mortgage Loans on which stamp duties or registration fees may be payable;
(l) the Offered Notes and the obligations of the Issuer Trustee
under the Offered Note Trust Deed will be secured (pursuant to the Security
Trust Deed) by a first floating charge over the assets of the Trust, subject to
the Prior Interest (as defined in the Security Trust Deed); and
(m) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice or
direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
II. Representations and Warranties of the CBA Parties.
Each CBA Party severally represents and warrants to each Underwriter and
the Issuer Trustee as of the date of this Agreement and as of the Closing Date
that:
(a) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the CBA Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust, otherwise than as
set forth or contemplated in the Prospectus;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of Australia, with power and authority (corporate and
other) to own its properties and
8
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
and this Agreement has been duly authorized by it, upon filing the Offered Note
Trust Deed with the SEC the Offered 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 Offered Notes and the Basic Documents
each will conform to the descriptions thereof in the Prospectus;
(e) it is not, nor with the giving of notice or lapse of time or
both would it be, in violation of or in default under, its constitution or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject, (ii) result in any violation of the
provisions of the constitution of a CBA Party or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over a CBA Party, or any of its properties or (iii) result
in the creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, 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 Offered 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 Offered Notes by the
Underwriters and the registration of the Charge with the ASIC on the Closing
Date;
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(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 Offered 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 Offered Notes or the marketability of the
Offered Notes; and there are no statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(g) its representations and warranties contained in the Basic
Documents are true and correct in all material respects;
(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to perform its obligations
under this Agreement and the Basic Documents, and it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization;
and it is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic Documents;
(i) it has not taken any corporate action and (to the best of its
knowledge and belief having made reasonable inquiry and investigation) no other
steps have been taken or legal proceedings been started or threatened against it
for its winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or similar
officer of it or of any or all of its assets (other than enforcement action
taken by CBA over its assets);
(j) no stamp or other duty is assessable or payable in, and
subject only to compliance with Section 128F of the Australian Tax Act in
relation to payments under the Offered Notes, no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever nature is
imposed or made for or on account of any income, registration, transfer or
turnover taxes, customs or other duties or taxes of any kind, levied, collected,
withheld or assessed by or within, the Commonwealth of Australia or any
sub-divisions of or authority therein or thereof having power to tax in such
jurisdiction, in connection with (i) the authorization, execution or delivery of
the Basic Documents to which it is, or is to be, a party or with the
authorization, execution, issue, sale or delivery of the Offered Notes and (ii)
the execution, delivery or performance by each CBA Party of the Basic Documents
to which it is or
10
is to be a party or the Offered Notes; except, in the case of sub clause (ii),
for any of the Basic Documents on which nominal stamp duty is payable or any
other document executed in connection with the perfection of the Issuer's
Trustee's legal title to the Mortgage Loans on which stamp duties or
registration fees may be payable;
(k) no event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other requirement)
constitute a Manager Default (as defined in the Master Trust Deed) or a Servicer
Default (as defined in the Series Supplement); and
(l) with respect to the A$ Securities and the (euro) 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 and the (euro) Securities only in "offshore transactions" (within the
meaning of Regulation S) in compliance with Regulation S and (C) each of the CBA
Parties, each Affiliate of a CBA Party and any person acting on behalf of a CBA
Party or an Affiliate of a CBA Party has complied and will comply with the
offering restrictions requirement of Regulation S.
III. Representations and Warranties of the Manager.
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) the Registration Statement has been declared effective by the
SEC under the Securities Act; the conditions to the use by the Manager of a
Registration Statement on Form S-3 under the Securities 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 SEC; 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, in the light of the
circumstances under which they were made, not misleading and (ii) at the time of
filing of the Prospectus pursuant to Rule 424(b) and on the Closing Date the
Prospectus and the Registration Statement will conform in all material respects
to the requirements of the Securities Act, and such document will not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act, 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
expressly for use therein;
11
(b) 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 SEC, complied and will comply in all
material respects with the requirements of the Exchange Act of 1934, as amended,
and the rules and regulations of the SEC thereunder (collectively, the "EXCHANGE
ACT") and, when read together with the other information in the Prospectus, at
the time the Registration Statement became effective, at the date of the
Prospectus and at the Closing Date, did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, no representation or warranty
is made as to documents deemed to be incorporated by reference in the
Registration Statement as the result of filing any Current Report on Form 8-K at
the request of the Underwriters except to the extent such documents accurately
reflect or are accurately based upon information furnished by or on behalf of
the CBA Parties to the Underwriters for the purpose of preparing such documents;
(c) each Issuer Free Writing Prospectus (as of its date) did not,
and the Approved Offering Materials as of the date of the Approved Offering
Materials did not and as of the date of the first Contract of Sale will not and
as at the Closing Date will not, include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(d) The Manager was not, as of any date on or after which a bona
fide offer (as used in Rule 164(h)(2) of the Securities Act Regulations) of the
Offered Notes was made an Ineligible Issuer, as such term is defined in Rule 405
of the Securities Act Regulations.
(e) to the knowledge of the Manager, no event has occurred that
would entitle the Manager to direct the Issuer Trustee to retire as trustee of
the Trust under clause 19.2 of the Master Trust Deed; and
(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.
6. Covenants and Agreements.
I. Covenants and Agreements of the Issuer Trustee.
The Issuer Trustee covenants and agrees with each of the 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 Offered Notes pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds";
12
(b) to notify the Underwriters 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 Underwriters 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
Basic Documents or in connection with the issue and distribution of the Offered
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
Underwriters to make arrangements with DTC, Euroclear and Clearstream,
Luxembourg concerning the issue of the Offered 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 Offered Notes not being assigned the ratings referred to in
Section 6(r) 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) 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 or the Class B Notes or offer
the Class A-2 Notes or the Class B Notes for sale or invite offers to purchase
the Class A-2 Notes or the Class B Notes to a person, where the offer or
invitation is received by that person in Australia, unless the minimum amount
payable for the Class A-2 Notes or the Class B Notes (as the case may be) (after
disregarding any amount lent by any of the CBA Parties or any associate (as
determined under sections 10 to 17 of the Corporations Act) of any CBA Party) on
acceptance of the offer by that person is at least A$500,000 (calculated in
accordance with both Section 708(a) of the Corporations Act and Regulations
7.1.18 of the Corporations Regulations 2001 (Cth)) or the offer or invitation
does not otherwise require disclosure to investors in
13
accordance with Part 6D.2 of the Corporations Act and is not made to a person
who is a "retail client" within the meaning of section 761 G of the Corporations
Act.
II. Covenants and Agreements of the CBA Parties.
The CBA Parties severally covenant and agree with each of the several
Underwriters and the Issuer Trustee as follows:
(a) in the case of the Manager only, to cause the Preliminary
Prospectus and Prospectus Supplement, properly completed, and any supplement
thereto, to be filed with the SEC pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and to furnish copies of the Prospectus
to the Underwriters in New York City prior to 10:00 a.m., New York City time, on
the Business Day next succeeding the date of this Agreement in such quantities
as the Underwriters may reasonably request;
(b) in the case of the Manager only, to deliver, at the expense of
the Manager, to the Underwriters, a copy of the Registration Statement
(including exhibits thereto), and, during the period mentioned in paragraph (f)
below, to each of the Underwriters as many copies of the Prospectus (including
all amendments and supplements thereto and documents incorporated by reference
therein) as the Underwriters may reasonably request; provided, however, that if
the Prospectus is not delivered with the confirmation in accordance with Rule
172 under the Securities Act, the Underwriters will provide the notice specified
in section 6(g) in every confirmation and will deliver a paper copy of the
Prospectus to those investors that request a paper copy thereof. The Manager
will furnish or cause to be furnished to the Underwriters copies of all reports
required by Rule 463 under the Securities 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
Underwriters a copy of the proposed amendment or supplement for review and not
to file any such proposed amendment or supplement to which the Underwriters
reasonably objects;
(d) in the case of the Manager only, to advise the Underwriters
promptly, and to confirm such advice in writing, (i) when the Prospectus, and
any supplement thereto, shall have been filed with the SEC pursuant to Rule
424(b), (ii) when any amendment to the Registration Statement has been filed or
becomes effective, (iii) when any supplement to the Prospectus or any amendment
to the Prospectus has been filed and to furnish to the Underwriters with copies
thereof, (iv) of any request by the SEC 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 SEC of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of 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
14
the Prospectus, or of any order suspending the qualification of the Offered
Notes, or notification of any such order thereof and, if issued, to obtain as
soon as possible the withdrawal thereof;
(e) to advise the Underwriters 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 Offered Notes for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(f) in the case of the Manager only, if, during such period of
time after the first date of the public offering of the Offered Notes as in the
opinion of counsel for the Underwriters a prospectus relating to the Offered
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 Underwriters will furnish to CBA) to which Offered Notes may have
been sold by 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
Offered Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution of the
Offered 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 Offered Notes and to the Underwriters 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 SEC promulgated
thereunder;
(i) in the case of the Manager only, so long as the Offered Notes
are outstanding, to furnish to the Underwriters (i) copies of each certificate,
the annual statement of compliance and the annual independent certified public
accountant's audit report on the financial statements furnished to the Issuer
Trustee pursuant to the Basic Documents by first class mail as soon as
practicable after such statements and reports are furnished to the Issuer
Trustee, (ii) copies of each amendment to any of the Basic Documents, (iii) on
each Determination Date or as soon thereafter as practicable, notice by telex or
facsimile to the Underwriters of the Pool Factor (as such term is defined in the
Series Supplement) as of the related Record Date, (iv) copies of all reports or
other communications (financial or other) furnished to holders of the Offered
Notes, and copies of any reports and financial statements furnished to or filed
with the SEC, 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 Underwriters may reasonably request;
15
(j) to the extent, if any, that the ratings provided with respect
to the Offered Notes by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by a CBA Party or the Issuer
Trustee, the relevant CBA Party shall use its best efforts to furnish such
documents and take any other such action or, in the case of the Issuer Trustee,
it will use its best efforts to procure the Issuer Trustee to do so;
(k) not to take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to believe
would result in the Offered Notes not being assigned the rating referred to in
Section 6(r) below;
(l) in the case of the Manager only, to assist the Underwriters in
making arrangements with DTC, Euroclear and Clearstream, Luxembourg concerning
the issue of the Book-Entry Notes and related matters;
(m) in the case of the Manager only, if required, to register the
Offered Notes pursuant to the Securities Exchange Act of 1934, as amended, as
soon as reasonably practicable as such requirement comes into effect but no
later than when such registration may become required by law;
(n) in the case of CBA only, whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
to pay, or cause to be paid, all fees costs and expenses incident to the
performance of the CBA Parties' obligations under this Agreement, including,
without limiting the generality of the foregoing, all fees, costs and expenses:
(i) incident to the preparation, issuance, execution, authentication and
delivery of the Notes, including any fees, costs and expenses of the Offered
Note Trustee or any transfer agent, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and the
Prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or qualification
and determination of eligibility for investment of the Offered 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 fees and disbursement
that are chargeable to CBA, and (viii) payable to rating agencies in connection
with the rating of the Notes. However, the Underwriters shall be responsible for
any expenses incurred by the CBA Parties in connection with any "roadshow"
presentation to potential investors;
(o) to indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issue tax, including any interest and penalties,
on the creation, issue and sale of the Offered 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
16
this Agreement without withholding or deduction for or on account of any present
or future taxes, duties or governmental charges whatsoever unless the relevant
CBA Party is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the relevant CBA Party shall pay such additional amounts
as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amount that would have been received if
no withholding or deduction had been made;
(p) in 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, 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 and the Class B Notes (as the
case may be) (after disregarding any amount lent by any of the CBA Parties or
any associate (as determined under sections 10 to 17 of the Corporations Act) of
any CBA Party) on acceptance of the offer by that person is at least A$500,000
(calculated in accordance with both section 708(a) of the Corporations Act and
Regulation 7.1.18 of the Corporations Regulations 2001 (Cth)) or the offer or
invitation does not otherwise require disclosure to investors in accordance with
Part 6D.2 of the Corporations Act and is not made to a person who is a "retail
client" within the meaning of section 761 G of the Corporations Act;
(q) in the case of the Manager only, to file any Issuer Free
Writing Prospectus, and any Underwriter Prepared Issuer FWP provided to it by an
Underwriter under Section 5(V)(f), not later than the date of first use thereof,
except that:
(i) any Issuer Free Writing Prospectus or Underwriter
Prepared Issuer FWP or portion thereof otherwise required to
be filed that contains only (1) a description of the final
terms of the Offered Notes may be filed by the Manager within
two days of the later of the date such final terms have been
established for all classes of Offered Notes and the date of
first use, and (2) a description of the terms of the Offered
Notes that does not reflect the final terms after they have
been established for all classes of all Offered Notes is not
required to be filed; and
(ii) if the Issuer Free Writing Prospectus or Underwriter
Prepared Issuer FWP includes only information of a type
included in the definition of ABS Informational and
Computational Materials, the Manager shall file the same
within the later of two business days after the Underwriter
first provides this information to investors and the date upon
which the Manager is required to file the Prospectus
Supplement with the SEC pursuant to Rule 424(b)(3) of the
Securities Act,
provided further, that prior to the filing of any Underwriter Prepared Issuer
FWP by the Manager, such Underwriter must comply with its obligations pursuant
to Section 5(V)(f) and that the Manager shall not be required to file any Free
Writing Prospectus to the extent such Free Writing Prospectus includes
information in a Free Writing Prospectus, Preliminary Prospectus or
17
Prospectus previously filed with the SEC or that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
SEC; and
(r) to procure that the charges created by or contained in the
Security Trust Deed are registered within all applicable time limits in all
appropriate registers.
III. Selling Restrictions.
(a) No prospectus in relation to the Offered 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 Offered Notes or offer the Offered Notes for sale or invite
offers to purchase the Offered 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 Offered Notes for sale, or invited or induced offers to buy the
Offered Notes, in each case by:
(i) making the Prospectus available for inspection on a
Bloomberg source or on an alternative electronic source and
inviting potential investors to access the Prospectus
available on that Bloomberg source or on that alternative
electronic source; or
(ii) making hard copies of the Prospectus for the Offered
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 the Prospectus to those purchasers.
(c) Each Underwriter agrees that it will not sell Offered Notes
to, or invite or induce offers for the Offered Notes from:
(i) any offshore associate of the Issuer Trustee or a CBA
Party specified in Schedule II or Schedule III; or
(ii) any other offshore 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 Offered Notes
specifying that it has complied with section 5(III)(b); and
(ii) cooperate with reasonable requests from the Issuer
Trustee for information for the purposes of assisting the
Issuer Trustee to demonstrate
18
that the public offer test under section 128F of the
Australian Tax Act has been satisfied in respect of the
Offered Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any Offered 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
covenants to the Issuer Trustee and the CBA Parties as of the date of this
Agreement and agrees that:
(i) (a) it has complied with and will comply with all
applicable provisions of the Financial Services and Markets
Act 2000, as amended ("FSMA") with respect to anything done in
relation to the Offered Notes in, from or otherwise involving
the United Kingdom; and (b) it has only communicated or caused
to be communicated, and will only communicate or cause to be
communicated, an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the
FSMA) received by it in connection with the issue or sale of
any Offered Notes in circumstances in which Section 21(1) of
the FSMA does not apply to the Issuer Trustee.
(ii) (a) the Offered Notes have not been and will not be
offered, sold or distributed in the Kingdom of Spain save in
accordance with the requirements of the Spanish Securities
Market Law of 28 July 1988 (Ley 24/1988, de 28 de xxxxx, del
Xxxxxxx de Valores) as amended and restated, and Royal Decree
291/1992, of 27 March, on Issues and Public Offerings of
Securities (Real Decreto 291/1992, de 27 de marzo, sobre
Emisiones y Ofertas Publicas de Venta de Valores) as amended
and restated and the decrees and regulations made thereunder;
(b) neither the Offered Notes nor the Prospectus have been or
will be verified or registered in the administrative
registries of the Spanish Securities Markets Commission
(Comision Nacional del Xxxxxxx de Valores); and (c) the
Offered Notes have not been and will not be sold, offered or
distributed in Spain except in circumstances which do not
constitute a public offer of securities in Spain within the
meaning of the Spanish Securities Market Law and further
relevant legislation or without complying with all legal and
regulatory requirements in relation thereto.
(iii) the Offered Notes have not been registered pursuant to
Italian securities legislation and, accordingly, each
Underwriter has represented and agreed that no action has or
will be taken by it which would allow an offering (or a
"sollecitazione all'investimento") of the notes to the public
19
in the Republic of Italy, and that sale of the notes to any
persons in the Republic of Italy shall be effected in
accordance with Italian securities, tax and other applicable
laws and regulations;
(iv) it has not offered, sold or delivered and will not
offer, sell or deliver any of the Offered Notes or distribute
or make available any of the Offered Notes or copies of the
Prospectus or any other offering material relating to the
Offered Notes in the Republic of Italy except (a) to
professional investors (operatori qualificati), as defined in
Article 31, second paragraph of Regulation No. 11522 of 1st
July, 1998 issued by the Commissione Nazionale per le Societa
e la Borsa ("CONSOB"), as amended and integrated from time to
time; (b) in circumstances which are exempted from the rules
on solicitation of investments pursuant to Article 100 of
Legislative Decree No. 58 of 24th February, 1998 (the
"FINANCIAL SERVICES ACT") and Article 33, first paragraph, of
CONSOB Regulation No. 11971 of 14th May, 1999, as amended and
integrated from time to time; or (c) to an Italian resident
who submits outside the Italian territory an unsolicited offer
to purchase such Offered Notes.
(v) any offer, sale or delivery of the Offered Notes or
distribution of copies of the Prospectus or any other document
relating to any of the Offered Notes in Italy under paragraphs
(iii) and (iv) above must be (a) made by an investment firm,
bank or financial intermediary permitted to conduct such
activities in the Republic of Italy in accordance with the
Financial Services Act, Legislative Decree No. 385 of 1st
September, 1993 (the "ITALIAN BANKING ACT"), as amended,
Regulation 11522 and any other applicable laws and
regulations; (b) in compliance with Article 129 of the Italian
Banking Act and the implementing guidelines of the Bank of
Italy pursuant to which the issue or the offer of securities
in Italy may need to be preceded and followed by an
appropriate notice to be filed with the Bank of Italy
depending, inter alia, on the aggregate value of the
securities issued or offered in Italy and their
characteristics; (c) in compliance with any other application
notification, requirement or limitation which may be imposed
by CONSOB or the Bank of Italy. For the avoidance of doubt no
application pursuant to Article 129 of the Italian Banking Act
has been made to the Bank of Italy by any of the Underwriters;
and (d) in compliance with the banking transparency
requirements set forth in the Italian Banking Act and the
implementing regulations and decrees.
(vi) it has not offered or sold and will not offer or sell
any Offered Notes, except in conformity with the provisions of
the Prospectus (Directive 2003/71/EC) Regulations 2005 and the
provisions of the Irish Companies Acts 1963-2005; (b) it has
not and will not offer or sell any Offered Notes other than in
compliance with the provisions of the Irish Market Abuse
(Directive 2003/6/EU) Regulations 2005; and (c) it will not
underwrite the issue of or place the Offered Notes otherwise
than in
20
conformity with the provisions of the Irish Investment
Intermediaries Act 1995 (as amended), including, without
limitation, Sections 9, 23 (including any advertising
restrictions made thereunder) and 37 (including any codes of
conduct issued thereunder) and the provisions of the Irish
Investor Compensation Act, 1998, including without limitation,
Section 21.
(f) Each Underwriter, severally and not jointly, acknowledges that
the Offered Notes may not be offered or sold, directly or indirectly, and
neither the Prospectus nor any form of application, advertisement or other
offering material may be issued, distributed or published in any country or
jurisdiction, unless permitted under all applicable laws and regulations. Each
Underwriter will comply with all applicable securities laws and regulations in
each jurisdiction in which it purchases, offers, invites offers, sells or
delivers Offered Notes or possesses or distributes the Prospectus or any other
offering material in all cases at its own expense.
IV. Manager Direction to Issuer Trustee.
The Manager hereby directs the Issuer Trustee to do each of the things
(or, as the case may be, not to do the things) specified in Section 5(I) and the
Issuer Trustee acknowledges and accepts that direction.
V. Covenants and Agreements of the Underwriters.
(a) Each Underwriter represents and warrants to and agrees with
the Issuer Trustee and the CBA Parties that as of the date of this Agreement and
as of the Closing Date, such Underwriter has complied with all of its
obligations under this Agreement, including, without limitation, this Section
5(V), and, with respect to all Underwriter Prepared Issuer FWP and Underwriter
Free Writing Prospectuses, if any, such Underwriter Prepared Issuer FWP and
Underwriter Free Writing Prospectuses are accurate in all material respects
(taking into account the assumptions explicitly set forth in such Underwriter
Prepared Issuer FWP and Underwriter Free Writing Prospectuses), except that such
Underwriter makes no representation to the extent that any misstatements or
omissions were the result of any inaccurate Issuer Information (including but
not limited to Pool Information) supplied by the Issuer Trustee or the CBA
Parties to such Underwriter.
(b) Prior to the Closing Date each Underwriter shall notify the
Manager or CBA of the earlier of (x) the date on which the Prospectus Supplement
is first used and (y) the time of the first Contract of Sale to which such
Prospectus Supplement relates.
(c) It is understood that the Underwriters propose to offer the
Offered Notes for sale to the public as set forth in the Prospectus and the
Underwriters agree that all such offers and sales shall be made in compliance
with all applicable laws and regulations. Prior to the date of the first
Contract of Sale made based on the Approved Offering Materials, each Underwriter
represents, warrants and agrees that it has not pledged, sold, disposed of or
otherwise transferred any Offered Note, Mortgage Loans or any interest in any
Offered Note.
21
(d) It is understood that the Underwriters will solicit offers to
purchase the Offered Notes as follows:
(i) Prior to the time that the Underwriters have received
the Approved Offering Materials they may, in compliance with
the provisions of this Agreement, solicit offers to purchase
Offered Notes; provided, that they shall not accept any such
offer to purchase an Offered Note or any interest in any
Offered Note or Mortgage Loan or otherwise enter into any
Contract of Sale for any Offered Note, any interest in any
Offered Note or any Mortgage Loan prior to their conveyance of
Approved Offering Materials to the investor.
(ii) any Written Communication relating to the Offered Notes
made by an Underwriter in compliance with the terms of this
Agreement prior to the time such Underwriter has entered into
a Contract of Sale for Offered Notes with the recipient shall
prominently set forth the following statements (or a
substantially similar statements approved by the Manager):
The information in this free writing prospectus, if conveyed
prior to the time of your contractual commitment to purchase
any of the Offered Notes, supersedes any information contained
in any prior similar materials relating to the Offered Notes.
The information in this free writing prospectus is
preliminary, and is subject to completion or change. This free
writing prospectus is being delivered to you solely to provide
you with information about the offering of the Offered Notes
referred to in this free writing prospectus and to solicit an
offer to purchase the Offered Notes, when, as and if issued.
Any such offer to purchase made by you will not be accepted
and will not constitute a contractual commitment by you to
purchase any of the Offered Notes, until we have accepted your
offer to purchase Offered Notes.
The Offered Notes referred to in these materials are being
sold when, as and if issued. The issuer is not obligated to
issue such Offered Notes or any similar security and the
underwriter's obligation to deliver such Offered Notes is
subject to the terms and conditions of the underwriting
agreement and the availability of such Offered Notes when, as
and if issued. You are advised that the terms of the Offered
Notes, and the characteristics of the mortgage loan pool
backing them, may change (due, among other things, to the
possibility that mortgage loans that comprise the pool may
become delinquent or defaulted or may be removed or replaced
and that similar or different mortgage loans may be added to
the pool, and that one or more classes of Offered Notes may be
split, combined or eliminated), at any time prior to issuance
or availability of a final prospectus. You are advised that
Offered Notes may not be issued that have the characteristics
described in these materials. The underwriter's obligation to
sell such Offered Notes to you is conditioned
22
on the mortgage loans and Offered Notes having the
characteristics described in these materials. If for any
reason the issuer does not deliver such Offered Notes, the
underwriter will notify you, and neither the issuer nor any
underwriter will have any obligation to you to deliver all or
any portion of the Offered Notes which you have committed to
purchase, and none of the issuer nor any underwriter will be
liable for any costs or damages whatsoever arising from or
related to such non-delivery.
(e) It is understood that the Underwriters will not enter into a
Contract of Sale with any investor until the Approved Offering Materials have
been conveyed to the investor with respect to the Offered Notes that are the
subject of such Contract of Sale.
(f) Each Underwriter may prepare and provide to prospective
investors Free Writing Prospectuses, subject to the following conditions to be
satisfied by such Underwriter:
(i) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Securities
Act, such Underwriter shall not convey or deliver any Written
Communication to any person in connection with the initial
offering of the Offered Notes, unless such Written
Communication (i) is made in reliance on Rule 134 under the
Securities Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Securities Act or (iii)
constitutes a Free Writing Prospectus consisting solely of (x)
information of a type included within the definition of ABS
Informational and Computational Materials, (y) Permitted
Additional Materials or (z) information accurately extracted
from the Preliminary Prospectus Supplement or any Issuer Free
Writing Prospectus and included in any Underwriter Prepared
Issuer FWP or any Underwriter Free Writing Prospectus.
(ii) Such Underwriter shall comply with all applicable laws
and regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433
of the Securities Act Regulations and all SEC guidance
relating to Free Writing Prospectuses, including but not
limited to SEC Release No. 33-8591.
(iii) It is understood and agreed that all information
provided by the Underwriters to or through Bloomberg or Intex
or similar entities for use by prospective investors, or
imbedded in any CDI file provided to prospective investors, or
in any email or other electronic message provided to
prospective investors, to the extent constituting a Free
Writing Prospectus, shall be deemed for purposes of this
Agreement to be an Underwriter Free Writing Prospectus and
shall not be subject to the required consent of the Manager
set forth in the third sentence in Section 5(V)(f)(v). In
connection therewith, each Underwriter agrees that it shall
not provide any information constituting Issuer Information
through the foregoing media unless (i) such information or
substantially similar information is contained either in an
Issuer Free Writing Prospectus or in
23
an Underwriter Prepared Issuer FWP in compliance with Section
5(V)(f)(v) or (ii) to the extent such information consists of
the terms of the Offered Notes, the final version of the terms
of the Offered Notes or substantially similar information is
contained either in an Issuer Free Writing Prospectus or in an
Underwriter Prepared Issuer FWP in compliance with Section
5(V)(f)(v).
(iv) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the SEC, shall bear a
legend including the following statement (or a substantially
similar statement approved by the Manager):
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SECURITIES AND EXCHANGE COMMISSION (THE
SEC) FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES.
BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE DEPOSITOR HAS
FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE
DEPOSITOR AND THE OFFERING. YOU MAY GET THESE DOCUMENTS AT NO
CHARGE BY VISITING XXXXX ON THE SEC WEB SITE AT XXX.XXX.XXX.
ALTERNATIVELY, THE DEPOSITOR, ANY UNDERWRITER OR ANY DEALER
PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE
PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[XX-XXX-XXXX] OR VIA EMAIL AT ______________."
Upon reasonable notice and in consultation with the
Underwriters, the Manager shall have the right to require
additional specific legends or notations to appear on any Free
Writing Prospectus, the right to require changes regarding the
use of terminology and the right to determine the types of
information appearing therein. Notwithstanding the foregoing,
subsection (b)(iv) will be satisfied if all Free Writing
Prospectuses bear a legend in a form previously approved in
writing by the Manager;
(v) The Underwriters shall deliver to the Manager and its
counsel (in such format as reasonably required by the
Manager), prior to the proposed date of first use thereof,
(unless such timing requirement is waived by the Manager), any
Underwriter Prepared Issuer FWP (as defined above). To
facilitate filing to the extent required by Section 2(q) or
Section 5(V)(i), as applicable, all Underwriter Derived
Information shall be set forth in a document separate from any
Underwriter Prepared Issuer FWP including Issuer Information.
Consent to use of any Underwriter Prepared Issuer FWP must be
given by the Manager in written or electronic format before
24
the Underwriter provides the Underwriter Prepared Issuer FWP
to investors pursuant to the terms of this Agreement.
Notwithstanding the foregoing, the Underwriters shall not be
required to deliver or obtain consent to use an Underwriter
Prepared Issuer FWP to the extent that it does not contain
substantive changes from or additions to any Underwriter
Prepared Issuer FWP previously approved by the Manager. In the
event that a Underwriter uses any Underwriter Prepared Issuer
FWP without complying with the foregoing requirements, that
Underwriter Prepared Issuer FWP shall be deemed to be an
Underwriter Free Writing Prospectus for purposes of Sections
7(a) and 7(b);
(vi) The Underwriters shall provide the Manager and the
Issuer Trustee with a letter from Deloitte & Touche LLP,
certified public accountants, prior to the Closing Date,
satisfactory in form and substance to the CBA Parties, their
counsel and the Underwriters, to the effect that such
accountants have performed certain specified procedures, all
of which have been agreed to by the Manager and the
Underwriter, as a result of which they determined that certain
information of an accounting, financial or statistical nature
that is included in any Underwriter Prepared Issuer FWP, other
than any Pool Information therein and any information
accurately extracted from the Preliminary Prospectus
Supplement or any Issuer Free Writing Prospectus and included
in such Underwriter Prepared Issuer FWP, is accurate except as
to such matters that are not deemed by the Manager and the
Underwriter to be material. The foregoing letter shall be at
the expense of the Underwriter.
(vii) The Manager shall not be obligated to file any Issuer
Free Writing Prospectuses that have been determined to contain
any material error or omission unless such Issuer Free Writing
Prospectus has been provided to a prospective investor, in
which case, the Underwriters shall cooperate with the Manager
to prepare a corrective Issuer Free Writing Prospectus that
the Underwriters will provide to any such prospective investor
and the Manager shall file to the extent required herein. In
the event that an Underwriter becomes aware that, as of the
date on which an investor entered into a Contract of Sale, any
Free Writing Prospectus prepared by or on behalf of such
Underwriter and delivered to such investor contained any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
contained therein, in light of the circumstances under which
they were made, not misleading (such Free Writing Prospectus,
a "DEFECTIVE FREE WRITING PROSPECTUS"), such Underwriter shall
notify the Manager thereof as soon as practical but in any
event within one business day after discovery;
(viii) If an Underwriter does not provide any Free Writing
Prospectuses to the Manager pursuant to this subsection (f),
such Underwriter shall be deemed to have represented to the
Issuer Trustee and the CBA Parties, as of the Closing Date,
that it did not provide any prospective investors with
25
any information in written or electronic form in connection
with the offering of the Offered Notes that would constitute
an Underwriter Prepared Issuer FWP;
(ix) In the event of any delay in the delivery by such
Underwriter to the Manager any Underwriter Prepared Issuer FWP
required to be delivered in accordance with this subsection
(f), or in the delivery of the accountant's comfort letter in
respect thereof pursuant to subsection (b)(vi) above the
Manager shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the
Closing Date and to take other appropriate actions, in each
case as necessary in order to allow the Manager to file such
Underwriter Prepared Issuer FWP by the time specified therein;
(x) Each Underwriter represents that it has in place, and
covenants, in each case to the Issuer Trustee and the CBA
Parties, that it shall maintain internal controls and
procedures which it reasonably believes to be sufficient to
ensure full compliance with all applicable legal requirements
of the Securities Act Regulations with respect to the
generation and use of Free Writing Prospectuses in connection
with the offering of the Offered Notes. In addition, each
Underwriter shall, for a period of at least three years after
the date hereof, maintain written and/or electronic records of
the following:
(A) any Free Writing Prospectus used by such
Underwriter to solicit offers to purchase Offered Notes to the
extent not filed with the SEC;
(B) regarding each Free Writing Prospectus delivered
by the Underwriter to an investor, the date of such delivery
and identity of such investor; and
(C) regarding each Contract of Sale entered into by
such Underwriter, the date, identity of the investor and the
terms of such Contract of Sale, as set forth in the related
confirmation of trade.
(xi) Each Underwriter covenants with the Manager and the
Issuer Trustee that after the final Prospectus is available
such Underwriter shall not distribute any written information
concerning the Offered Notes to a prospective investor unless
such information is preceded or accompanied by the Final
Prospectus. It is understood and agreed that the use of
written information in accordance with the preceding sentence
is not a Free Writing Prospectus and is not otherwise
restricted or governed in any way by this Agreement.
(xii) The Underwriters shall not use any Free Writing
Prospectus in connection with the solicitation of offers to
purchase Offered Notes from
26
any prospective investor in a class of Offered Notes with
denominations of less than $25,000 or otherwise designated as
a "retail" class of Offered Notes, and each Underwriter shall
not authorize any such use of any Free Writing Prospectus by
any dealer that purchases any such Offered Notes from such
Underwriter.
(g) Each Underwriter agrees that (i) if the Prospectus is not
delivered with the confirmation in reliance on Rule 172, it will include in
every confirmation sent out the notice required by Rule 173 informing the
investor that the sale was made pursuant to the Registration Statement and that
the investor may request a copy of the Prospectus from such Underwriter; (ii) if
a paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a printed or paper copy of such
Prospectus; and (iii) if an electronic copy of the Prospectus is delivered by
such Underwriter for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically to
the Underwriter by or on behalf of the Manager specifically for use by the
Underwriter pursuant to this Section 5(V)(g); for example, if the Prospectus is
delivered to such Underwriter by or on behalf of the Manager in a single
electronic file in pdf format, then such Underwriter will deliver the electronic
copy of the Prospectus in the same single electronic file in pdf format. Each
Underwriter further agrees that it will provide to the Manager any Underwriter
Prepared Issuer FWP, or portions thereof, which the Manager is required to file
with the SEC in electronic format and will use reasonable efforts to provide to
the Manager such Underwriter Prepared Issuer FWP, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a pdf, except to the
extent that the Manager, in its sole discretion, waives such requirements.
(h) If the Manager or an Underwriter determines or becomes aware
that any Written Communication (including without limitation any Approved
Offering Materials) or oral statement (when considered in conjunction with all
information conveyed at the time of Contract of Sale) contains an untrue
statement of material fact or omits to state a material fact necessary to make
the statements, in light of the circumstances under which they were made, not
misleading at the time that a Contract of Sale was entered into, either the
Manager or such Underwriter may prepare corrective information with notice to
the other party, and such Underwriter shall deliver such information in a manner
reasonably acceptable to both parties, to any person with whom a Contract of
Sale was entered into, and such information shall provide any such person with
the following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the
existing Contract of Sale at the time termination is sought;
(iii) Adequate disclosure of the new information that is
necessary to correct the misstatements or omissions in the
information given at the time of the original Contract of
Sale; and
(iv) A meaningful ability to elect to terminate or not
terminate the prior Contract of Sale and to elect to enter
into or not enter into a new Contract of Sale.
27
Any costs incurred to the investor in connection with any such termination or
reformation shall be subject to Sections 7(a) and (b), as applicable.
(i) Each Underwriter shall file any Underwriter Free Writing
Prospectus that has been distributed by such Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination within the later of
two business days after such Underwriter first provides this information to
investors and the date upon which the Manager is required to file the Prospectus
Supplement with the SEC pursuant to Rule 424(b)(3) of the Securities Act or
otherwise as required under Rule 433 of the Securities Act; provided, however,
that the Underwriter shall not be required to file any Underwriter Free Writing
Prospectus to the extent such Underwriter Free Writing Prospectus includes
information in a Free Writing Prospectus, Preliminary Prospectus or Prospectus
previously filed with the SEC or that does not contain substantive changes from
or additions to a Free Writing Prospectus previously filed with the SEC.
7. 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 SEC; the Prospectus used to confirm sales of the Notes
shall have been filed with the SEC pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5II(a) hereof; and all requests
for additional information shall have been complied with to the satisfaction of
the Underwriters;
(b) the representations and warranties of the Issuer Trustee and
the CBA Parties contained herein are true and correct on and as of the Closing
Date as if made on and as of the Closing Date and the representations and
warranties of the Issuer Trustee and CBA Parties in the Basic Documents will be
true and correct on the Closing Date; and the Issuer Trustee and the CBA Parties
shall have complied with all agreements and all conditions on the part of each
to be performed or satisfied hereunder and under the Basic Documents at or prior
to the Closing Date;
(c) all actions required to be taken and all filings required to
be made by the Manager or the Issuer Trustee under the Securities Act prior to
the Closing Date for the Notes shall have been duly taken or made;
(d) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date: (x) there shall not have occurred any downgrading in
any rating accorded any securities of, or guaranteed by, CBA by any "nationally
recognized statistical rating organization" (as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act) to: (i) "A2" or worse in
the case of the rating accorded by Xxxxx'x Investors Service, Inc.,
28
(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 Joint Book Runners makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Offered Notes on the
Closing Date on the terms and in the manner contemplated in the Prospectus;
(f) the Underwriters 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 Underwriters to the effect set forth in subsections (b) and (e) of this
Section in the case of the Issuer Trustee, and (a) through (e) of this Section
in the case of each CBA Party;
(g) the Underwriters shall have received letters, of (i) Deloitte
& Touche LLP, one dated the date of the preliminary prospectus and one dated the
date of the final prospectus, in form and substance satisfactory to counsel of
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; and
of (ii) Xxxxx & Xxxxx, dated the date of delivery thereof, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters, stating in
effect that they have performed certain specified procedures with respect to the
Mortgage Loans;
(h) Sidley Austin LLP, special United States counsel to the
Underwriters, shall have furnished to the Underwriters their written opinion,
dated the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(i) Xxxxx Xxxxx, Xxxx & Maw LLP, United States counsel for the CBA
Parties, shall have furnished to the Underwriters their written opinions, dated
the Closing Date, in form and substance satisfactory to the Underwriters, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(j) Xxxxx Xxxxx, Xxxx & Maw LLP, United States federal income tax
counsel for the CBA Parties shall have furnished to the Underwriters their
written opinion, dated the Closing Date, in form and substance satisfactory to
the Underwriters, and such counsel shall
29
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 Underwriters their written opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters, 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 Underwriters their written opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters, and such
Australian tax counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(m) Mallesons Xxxxxxx Xxxxxx, Australian counsel for the Issuer
Trustee and the Security Trustee, shall have furnished to the Underwriters their
written opinion, dated the Closing Date, in form and substance satisfactory to
the Underwriters, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(n) Xxxxx Xxxxxx & Xxxxxx, LLP, counsel for the Offered Note
Trustee shall have furnished to the Underwriters their written opinion, dated
the Closing Date, in form and substance satisfactory to the Underwriters, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(o) the Chief Solicitor and General Counsel of CBA shall have
furnished to the Underwriters his written opinion, dated the Closing Date, in
form and substance satisfactory to the Underwriters, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(p) Counsel to the Interest Rate Swap Provider and Currency Swap
Provider shall have furnished to the Underwriters their written opinion dated
the Closing Date, in form and substance satisfactory to the Underwriters, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(q) the Underwriters 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 Underwriters to rely on such opinion as
if it were addressed to the Underwriters;
(r) the Underwriters shall have received copies of letters from
Xxxxx'x Investors Service, Inc. ("Xxxxx'x"). Standard & Poor's (Australia) Pty.
Ltd. ("S&P") and Fitch Australia Pty Ltd ("Fitch" and together with Xxxxx'x and
S&P, the "Rating Agencies") stating that the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes have each been rated "AAA" by S&P, "Aaa" by
Moody's and "AAA" by Fitch;
(s) the Underwriters shall have received evidence satisfactory to
it and its counsel that on or prior to the Closing Date the Class A-2 Notes, the
Class A-3 Notes and the
30
Class B Notes have been duly authorized, executed, authenticated, issued and
delivered pursuant to the Basic Documents;
(t) the execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date;
(u) on or prior to the Closing Date the Issuer Trustee and the CBA
Parties shall have furnished to the Underwriters such further certificates and
documents as the Underwriters shall reasonably request; and
(v) the Underwriters shall have received the Commission.
8. 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 Offered Notes and each
person, if any, that controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, 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, the Approved Offering Materials or the Prospectus (as amended or
supplemented if the CBA Parties shall have furnished any amendments or
supplements thereto) or in any Issuer Information, 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, in the light of the circumstances
under which they were made, not misleading; except
(i) insofar as any such losses, claims, damages,
liabilities, legal fees and other expenses are caused by any
untrue statement or omission or alleged untrue statement or
omission made (A) in reliance upon and in conformity with
information relating to any Underwriter furnished to a CBA
Party in writing by such Underwriter 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 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 Offered Notes which are the subject hereof, if (i) such
person did not receive a copy of the Prospectus (or the
Prospectus as amended or supplemented) at or prior to the
confirmation of the sale of such Offered Notes to such person,
or (ii) the Underwriters failed to comply with Section 5(V)(g)
hereof, and the alleged untrue statement contained in, or
omission of a material fact from the Prospectus was corrected
in the Prospectus as amended or supplemented; or
31
(iii) to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein relating to any information included in
an Underwriter Free Writing Prospectus or Underwriter Prepared
Issuer FWP, if any, that have been superseded by a revised
Underwriter Free Writing Prospectus or Underwriter Prepared
Issuer FWP if the Underwriter (A) has not complied with its
obligation to circulate a revised Underwriter Free Writing
Prospectus or Underwriter Prepared Issuer FWP in accordance
with Section 5(V)(vii) or (B) has not delivered them to the
Manager no later than one (1) Business Day after delivery to
investors (in the case of (B), to the extent such loss, claim,
damage or liability is attributable to the failure to deliver)
provided that the CBA Parties shall indemnify the Underwriter
to the extent any misstatement or omission is contained in the
Pool Information.
For the purposes of this Agreement, the term "PREPAYMENT AND YIELD
INFORMATION" means that portion of the information in 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.
(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 from and against 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): (i) caused by information relating to such
Underwriter furnished to the CBA Parties in writing by such Underwriter
expressly for use in the Registration Statement or the Prospectus or any
amendment or supplement thereto; (ii) caused by Underwriter Free Writing
Prospectus or Underwriter Prepared Issuer FWP, if any, delivered to investors by
such Underwriter, except to the extent of any errors in the Underwriter Free
Writing Prospectus or Underwriter Prepared Issuer FWP that are caused by errors
in the Pool Information or are caused by a misstatement or omission resulting
from an error or omission in the Issuer Information supplied by the Issuer
Trustee or the CBA Parties to the Underwriter, (iii) caused by any untrue
statement or alleged untrue statement of material fact contained in any
Underwriter Prepared Issuer FWP (except for Issuer information or any
information accurately extracted from the Preliminary Prospectus Supplement or
any Issuer Free Writing Prospectus and included in such Underwriter Prepared
Issuer FWP), or any omission or alleged omission to state therein a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (when considered in conjunction with
all information conveyed as of the date of the Contract of Sale), (iv) caused by
any Underwriter Prepared Issuer FWP for which the conditions set forth in
Section 5(V)(f)(v) above are not satisfied with respect to the prior consent by
the
32
Manager, and (v) resulting from the Underwriters' failure to comply with Section
5(V)(e) or failure to file any Underwriter Free Writing Prospectus required to
be filed in accordance with Section 5(V)(f)(i).
(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 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 the Underwriters 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:
33
(iv) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request;
and
(v) 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.
(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 Offered 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 Offered 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
34
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective principal
amount of Offered 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 Offered Notes.
(f) To the extent that any payment of damages by a CBA Party
pursuant to subsection (a) above is determined to be a payment of damages
pursuant to paragraph 15 of Guidance Note AGN 120.3- "Purchase and Supply of
Assets (including Securities issued by SPVs)", being a Guidance Note to
Prudential Standard APS 120- "Funds Management and Securitisation" or any
successor thereto, such payment shall be subject to the terms therein (or the
terms of any equivalent provisions in any successor of Prudential Standard APS
120).
9. Termination. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of the Joint Book
Runners, by notice given to the Issuer Trustee and each CBA Party, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the London Stock Exchange
or the Australian Stock Exchange, (ii) trading of any securities of or
guaranteed by the Issuer Trustee or any CBA Party shall have been suspended on
any exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York, Sydney or London shall have been
declared by either United States Federal, New York State, Commonwealth of
Australia, New South Wales State or United Kingdom authorities, or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the Joint
Book Runners, is material and adverse and which, in the judgment of the Joint
Book Runners, makes it impracticable to market the Offered Notes on the terms
and in the manner contemplated in the Prospectus.
10. 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
SEC.
35
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Offered Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Offered 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
Offered Notes to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Offered
Notes set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Offered Notes set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as the Joint Book
Runners may specify, to purchase the Offered 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 Offered 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 Offered Notes without the written consent of such Underwriter. If on
the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Offered Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Offered Notes with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Offered Notes to be purchased on such date, and arrangements
satisfactory to the Joint Book Runners and the Manager for the purchase of such
Notes are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
CBA Parties and the Issuer Trustee. In any such case either the Joint Book
Runners 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.
11. 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.
12. 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 Offered 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.
36
13. 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 trustee of the Trust arising
under or in connection with this Agreement is limited to and can be enforced
against the Issuer Trustee only to the extent to which it can be satisfied out
of Assets of the Trust out of which the Issuer Trustee is actually indemnified
for the liability. This limitation of the Issuer Trustee's liability applies
despite any other provision of this Agreement (other than section 12(c)) to the
contrary and extends to all liabilities and 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 sue the
Issuer Trustee in respect of liabilities incurred by the Issuer Trustee, acting
in its capacity as trustee of the Trust, in any capacity other than as trustee
of the Trust including seeking the appointment of a receiver (except in relation
to the Assets of the Trust), or a liquidator, an administrator or any similar
person to the Issuer Trustee or prove in any liquidation, administration or
arrangements of or affecting the Issuer Trustee (except in relation to the
Assets of the Trust).
(c) The provisions of this section 12 will not apply to any
obligation or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Master Trust Deed, this Agreement or any other
Transaction Document in relation to the Trust or by operation of law there is a
reduction in the extent of the Issuer Trustee's indemnification or exoneration
out of the Assets of the Trust, as a result of the Issuer Trustee's fraud,
negligence or wilful default (as defined in the Series Supplement).
(d) It is acknowledged that the Relevant Parties (as defined in
the Series Supplement) are responsible under the Basic Documents for performing
a variety of obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations and any breach
of representations and warranties under this Agreement) will be considered
fraudulent, negligent or a wilful default for the purpose of section 12(c) to
the extent to which the act or omission was caused or contributed to by any
failure by any Relevant Party (other than any person for whom the Issuer Trustee
is responsible or liable for in accordance with any Transaction Document) to
fulfill its obligations relating to the Trust or by any other act or omission of
a Relevant Party or any other such person.
14. Actions by Representative; Notices. Any action by the Underwriters
hereunder may be taken by the Joint Book Runners on behalf of the Underwriters,
and any such action taken by the Joint Book Runners shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
to Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000: (Facsimile
No.: (000) 000-0000); Attention: Xxxxxxx X'Xxxxx, HSBC Bank plc, 0 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX (Facsimile No.: x00 (00) 0000-0000); Attention:
Transaction Department and Credit Suisse Securities (USA) LLC, 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (Facsimile No.: (000) 000-0000); Attention: Xxxxxxx
Xxx. Notices to CBA and the Manager shall be given to it at Commonwealth Bank of
Australia, Level 0, 00 Xxxxxx Xxxxx,
37
Sydney, NSW, 2000 (Facsimile No.: (000) 0000-0000); Attention: Xxxxx Xxxxxxxx,
Group Treasury. Notices to the Issuer Trustee shall be given to it at Perpetual
Trustees Australia Limited, Level 00, 000 Xxxx Xxxxxx, Xxxxxx, XXX, 0000
(Facsimile No.: (000) 0000-0000); Attention: Manager, Securitisation.
15. 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.
16. 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 Offered 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.
17. Appointments of Process Agent.
(a) Each of the CBA Parties hereby designates and appoints
Commonwealth Bank of Australia, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(Attention: Xxx Xxxxxxxx) (the "CBA Process Agent"), as its authorized agent,
upon whom process may be served in any legal suit, action or proceeding based on
or arising under or in connection with this Agreement, it being understood that
the designation and appointment of Commonwealth Bank of Australia, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (Attention: Xxx Xxxxxxxx) as such authorized agent
shall become effective immediately without any further action on the part of the
each of the CBA Parties. Such appointment shall be irrevocable to the extent
permitted by applicable law and subject to the appointment of a successor agent
in the United States on terms substantially similar to those contained in this
Section 16 and reasonably satisfactory to the Joint Book Runners. 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 the Underwriters 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
38
directs the CBA Process Agent to accept such service. Each of the CBA Parties
further agrees that service of process upon the CBA Process Agent and written
notice of that service to it shall be deemed in every respect effective service
of process upon it in any such legal suit, action or proceeding. Nothing in this
Section 16 shall affect the right of any Underwriter or any person controlling
any Underwriter to serve process in any other manner permitted by law.
(b) The Issuer Trustee hereby designates and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the "IT
Process Agent"), as its authorized agent, upon whom process may be served in any
legal suit, action or proceeding based on or arising under or in connection with
this Agreement, it being understood that the designation and appointment of CT
Corporation System as such authorized agent shall become effective immediately
without any further action on the part of the Issuer Trustee. Such 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 the
Joint Book Runners. 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 the Underwriters of such appointment. The
Issuer Trustee represents to the Underwriters that it has notified the IT
Process Agent of such designation and appointment and that the IT Process Agent
has accepted the same in writing. The Issuer Trustee hereby authorizes and
directs the IT Process Agent to accept such service. The Issuer Trustee further
agrees that service of process upon the IT Process Agent and written notice of
that service to it shall be deemed in every respect effective service of process
upon it in any such legal suit, action or proceeding. Nothing in this Section 16
shall affect the right of any Underwriter or any person controlling any
Underwriter to serve process in any other manner permitted by law.
18. 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 the Joint Book
Runners could purchase United States dollars with such foreign currency on the
business day preceding that on which the judgment becomes a final judgment.
39
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:
S-1
Accepted: March __, 2006
DEUTSCHE BANK SECURITIES INC.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
S-2
COMMONWEALTH BANK OF AUSTRALIA
By:___________________________
Name:
Title:
S-3
CREDIT SUISSE SECURITIES (USA) LLC
By:___________________________
Name:
Title:
S-4
HSBC BANK PLC
By:___________________________
Name:
Title:
S-5
SCHEDULE I
PRINCIPAL AMOUNT OF
UNDERWRITER SECURITIES TO BE PURCHASED
--------------------------
Deutsche Bank Securities Inc...................... US$700,000,000
Credit Suisse First Boston Corporation LLC........ US$700,000,000
HSBC Bank plc..................................... US$300,000,000
Commonwealth Bank of Australia.................... US$300,000,000
Total.................... US$2,000,000,000
================
1
SCHEDULE II
List of 128F(9) Offshore Associates of the Issuer Trustee
Perpetual Ltd
Perpetual Trustees Nominees Ltd
Perpetual Custodians Ltd
Perpetual Trust Services Limited
Hunter Nominees Pty Ltd
PT Limited
Perpetrust Nominees Pty Ltd
Perpetual Legal Services Pty Ltd
Perpetual Service Network Pty Limited
Australian Trustees Limited
Commonwealth Trustees Pty Limited
Investor Marketplace Limited
Perpetual Australia Pty Limited
Perpetual Investment Management Limited
Perpetual Nominees Limited
Perpetual Services Pty Limited
Perpetual Trustees S A Limited
Queensland Trustees Pty Limited
Perpetual Loan Company Limited
Perpetual Superannuation Limited
Perpetual Assets Pty Ltd
Perpetual Asset Management Ltd
Perpetual Trustees Victoria Ltd
Perpetual Executors Nominees Ltd
Perpetual Trustees Queensland Ltd
Perpetual Trustee Company (Canberra) Ltd
Perpetual Trustees W.A. Ltd
Terrace Guardians Ltd
Xxxxxx Xxxxxxxx Limited
Xxxxxx Xxxxxxxx Finance Pty Limited
Xxxxxx Xxxxxxxx Partnership Pty Ltd
Perpetual Trustees Consolidated Limited
Perpetual Nominees (Canberra) Limited
Perpetual Custodian Nominees Pty Ltd
Perpetual Property Securities Ltd
P.I. Investment Management Limited (Incorporation No. 391261)
-2-
SCHEDULE III
List of 128F(9) Associates of the CBA Parties
Commonwealth Bank of Australia
Antarctic Shipping Pty Limited
Aquasten Pty Limited
Australian Bank Limited
Australian TIC Management
Balga Pty Limited
BDSC Pty Limited(REFER CB489)
DBCV Pty Limited
Binya Pty Limited
Brookhollow Ave Pty Limited
CHINA LIFE
CBA Corporate Services (NSW)
CBA Corporate Services (Vic)
CBA EDSA IT Assets Partnership
CBA Indemnity Co. Pty Limited
CBA International Finance PL
CBA Investments (No 2) Pty Ltd
Sparad (No 20) Pty Limited
Sparad (no 22) Pty Limited
AEFC Investments Pty Limited
CBA Investments Limited
CBA Investments OBU
CBA IT Co Pty Limited
CBA Leasing (No 2) Pty Limited
CBA Rail & Tram Co Pty Limited
Tankstream Rail (Vic) Pty Ltd
Tankstream Rail (SW-1) Pty Ltd
Tankstream Rail (SW-2) Pty Ltd
Tankstream Rail (SW-3) Pty Ltd
Tankstream Rail (SW-4) Pty Ltd
Tankstream Rail (BY-1) Pty Ltd
Tankstream Rail (BY-2) Pty Ltd
Tankstream Rail (BY-3) Pty Ltd
Tankstream Rail (BY-4) Pty Ltd
CBA Specialised Financing Ltd
Share Investments Pty Limited
CBA Funding (NZ) Limited
CBA Dairy Leasing Limited
CBA Investments (No4) limited
Clearwater Services Limited
IT Fleet NZ Limited
IT Fleet NZ No 2 Limited
-3-
CB Officers Super Corp PL
Commonwealth Capital Corp Ltd
Commonwealth Capital Limited
CDB Australia Limited
Direct Australian Pty Limited
First Australian Pty Limited
Harford Pty Limited
Homepath Pty Limited
Commonwealth Fleet Lease PL
Leaseway Transportation PL
MMAL Fleet Lease Arranger PL
Puerto Limited
RVG Administration Co PL
COMMONWEALTH GROUP PTY LTD
SBV Nominees Limited
SBV Staff Super Pty Limited
Securitisation Advisory Serv
Securitisation Custodian PL
HFV6 PTY LIMITED
SA Fleet Lease Arranger PL
Sparad (No 16) Pty Limited
Sparad (No 17) Pty Limited
Sparad (No 21) Pty Limited
Sparad (No 24) Pty Limited
Vic Fleet Lease Arranger PL
CBCL Xxxxxxxxx Xxxxx Int PL
CBCL Australia Limited
CBCL Australia Securities Ltd
CBCL Fixed Interest limited
CBCL Holdings Australia Ltd
CBCL KNS Nominees Pty Ltd
CBCL May Xxxxxx Limited
CBCL Xxxxxx Nominees Pty Ltd
CBCL Property Finance Limited
CBCL Property Services Limited
CBCL Xxxxx Australia Pty Ltd
CBCL Subholdings Australia Ltd
CBFC Limited
CBFC Leasing Pty Limited
CBFC Properties Pty Limited
Coll Sparad Ltd Patnership 1
Coll Sparad Ltd Patnership 2
Coll Sparad Ltd Patnership 3
Coll Sparad Ltd Patnership 4
Coll Sparad Ltd Patnership 5
Coll Sparad Ltd Patnership 6
-4-
Coll Sparad Ltd Patnership 7
Collateral Leasing Pty Ltd
Senbary Pty Limited
Commonwealth Securities Ltd
Share Direst Nominees Pty Ltd
Comsec Nominees Pty Ltd
Chullora Equity Inv (No 1) PL
Chullora Equity Inv (No 2) PL
Chullora Equity Inv (No 3) PL
Commonwealth Insurance Ltd
Commonwealth Investments XX
Xxxxxxxxx Investment Co PL
Commonwealth Investments NZ PL
CFS PROPERTY LTD
Darontin Pty Limited
Fleet Care Services Pty Ltd
Infravest (No 1) Limited
Infravest (No 2) Limited
Perpetual Stock Pty Limited
Retail Investor Pty Limited
Sparad (No 26) Pty Limited
Sparad (No 27) Pty Limited
Sparad (No 30) Pty Limited
Sparad (No 28) Pty Limited
Sparad (No 31) Pty Limited
CISL (Xxxxxxxxx) Pty Limited
Cwealth Investment Service Ltd
Cwealth Managed Investment Ltd
Cwealth Custodial Services Ltd
Cwealth Custodial Services NZ
Commonwealth Life Limited
CIF (Xxxxxxxxx) Pty Ltd
CLL Investments Limited
Cwealth Funds Management Ltd
CFM (ADF) Limited
CFML Nominees Pty Limited
ASB Group Limited
ASB Bank Limited
ASB Finance Limited
ASB Management Services Ltd
ASB Properties Limited
ASB Superannuation Nominees
ASB GROUP (LIFE) LTD
Sovereign Limited
CMLA NZ Branch STAT 6
CBA Asia Limited
-5-
CBA London
CBA (Delaware) Finance Inc
Central Real Estate Holdings
Wilshire 10880 Corporation
Wilshire 10960 Corporation
SBV Asia Limited
Colonial Limited
Colonial Employee Share Plan
Colonial Finance (Aust) Ltd
ACN 002 680 471 Pty Ltd
CST Securitisation Mgt Ltd
Colonial State Residual (No 1)
Colonial State Residual (No 2)
SBNSW (Delaware) Inc
Wezen Pty Limited
State Nominees Limited
Lazarose Pty Limited
Colonial Int Factors Pty Ltd
Colonial Trade Services (HK)
SBT Properties Pty Limited
P and B Properties Pty Ltd
Gold Star Mortgage Mgt PL
Keystone Financial Service Ltd
ACN 080 159 762 Pty Ltd
ACN 080 182 163 Pty Ltd
ACN 080 182 529 Pty Ltd
ACN 000 000 000 Pty Ltd
ACN 000 000 000 Pty Ltd
ACN 000 000 000 Pty Ltd
ACN 090 916 813 Pty Ltd
ACN 090 916 831 Pty Ltd
ACN 090 916 840 Pty Ltd
SBSBS Pty Ltd
Vanoti Pty Ltd
Colonial Holding Co Pty Ltd
Colonial Finance Ltd
Colonial Asset Finance Pty Ltd
Colonial Investments Holding
COLONIAL SERVICES
Colonial Holding Co No2 Pt Ltd
Colonial Protection Insurance
Colonial Promotions Pty Ltd
Colonial Financial Management
COLONIAL INTERNATIONAL HOLDING
Colonial (UK) Trustees Ltd
Colonial Finance (UK) Ltd
-6-
Col UK Staff Pens Trustee Ltd
Col Holding (Thailand) Co Ltd
Ayudhya CMG Life Assurance PLC
CMG Asia Trustee Company Ltd
CMG Asia P&R Ltd REFER CB456
PT Astra CMG Life
CMG Asia Phillipines Holding L
CMG Life Insurance Co Inc
CMG Plans Inc
CMG Health Co Inc
Colonial Fiji Life Ltd
Colonial Health Care Fiji Ltd
Col First State Invest Fiji Lt
Colonial Services (Fiji) Ltd
National Bank of Fiji Ltd
Xxxxxxx Xxxxxx Pty Ltd
Xxxxxxx Xxxxxx NZ Ltd
Super Trustees of NZ Ltd
ACN 004 929 962 Pty Ltd
CC Group Holdings Pty Ltd
XX Xxxxxxx Ltd
ACN 007 255 521 Pty Ltd
Jacques Ind Funds Adm Pty Ltd
JMIFA Super Partners Pty Ltd
Super Partners Pty Ltd
Industry Funds Admin Pty Ltd
Auz-Com Technologies Pty Ltd
Jacques Admin & Consul Pty Ltd
Ind Funds Credit Control Pty L
CM Somerton Pty Ltd
PERSONALISED PLANNING PTY LTD
ACN 008 521 579 (XXXXX Nom)
Col Mutual Super Pty Ltd
Bennelong Centre Pty Ltd
Col PCA Holding Pty Ltd
Col Ass Co of Aus & NZ Pty Ltd
Aetna Properties Ltd
Southcap Pty Ltd
Colonial PCA Pty Ltd
Eon CMG Life Ass Berhand
Col Mutual Deposit Serv Ltd
ACN 000 000 000 Pty Ltd
China Life - CMG Life Ass Co
Xxx Xxxx CMG Life Ins Co Ltd
Colonial Tasman Pty Ltd
Colonial Holding Co NZ Ltd
-7-
Colonial Super (NZ) Ltd
Col Trustee Services (NZ) Ltd
Colonial Franchise Service Ltd
Colonial Services (NZ) Ltd
Col First State Invest NZ Ltd
Colonial Trustees (NZ) Ltd
KIWI PROPERTY MGMT LTD
Col Services Corp (NZ) Ltd
Colonial Life (NZ) Ltd
Colonial LGA Holdings Ltd
AFS Support Services Pty Ltd
AFS Life Finance Pty Ltd
Colonial South Australia Ltd
Colonial PCA Services Ltd
Colonial Financial Corp Ltd
CFS Prop Holdings No 3 Pty Ltd
Banner Consultancy Serv Ltd
Prevbana Ltd
CFS Property Hold No 2 Pty Ltd
Col Insurance Serv Pty Lty
Colonial Mutual Funds Limited
Col Investment Services Ltd
CFS Prop Investment Ltd
Onslow Properties Pty Ltd
Tracker Index Management Ltd
Legener (Australia) Pty Ltd
Colonial Super Services Ltd
Colonial Asset Management Ltd
Tactical Global Management Ltd
CLGA Staff Super Fund Pty Ltd
COL STAT FUNDS MGMT LTD
CFS Fund Services Ltd
First Custod Services Pty Ltd
CFS Property Funds Mgmt Ltd
Premier Fin Planning Group Ltd
Col Portfolio Services Ltd
Col Australia Super Ltd
CFS Projects Pty Ltd
Colonial Net Ltd
CAPITAL 121 PTY LIMITED
COMMONWEALTH FIN PLANNING LTD
Super & Investment Res Pty Ltd
FINANCIAL WISDOM LIMITED
Col Staff Aust Super No 2 Ltd
Windsor Xxxxxxxxxxx Ser Pty Lt
Col PCA Aust Super Ltd
-8-
Col PCA Staff Super Ltd
Aquashell Pty Ltd
Colonial PCA Properties Ltd
Col Nominees No3 Fund Pty Ltd
Invest Life Ins Co Aus Pty Ltd
Continental Assurance Pty Ltd
PFM Holdings Pty Ltd
Col Invest Co of Aus Pty Ltd
COLONIAL FIRST STATE GROUP LTD
CFS Investments Limited
FS INVEST MGRS (ASIA) LTD
FS Investments (Bermuda) Ltd
FS INVEST HLDGS(SINGAPORE)LTD
CMG FS Singapore
FIRST STATE (HK) LLC
CMG FS Investments (HK) LTd
CMG FS Nominees (HK) Ltd
CMG Xxxxx China Invest Mgr GP
CMG Xxxxx China Invest Mgr Ltd
CFS MANAGED PROPERTY LTD (CFT)
Col Mutual Prop Group Pty Ltd
Col Property Mgt NSW P/L(Close
Col Property Mgt VIC P/L(close
Col Property Mgt SA P/L(Close)
Col Property Mgt QLD P/L(Close
CFS Investment Managers NZ Ltd
CMG CH China Funds Mgmt Ltd
CFS PRIVATE EQUITY LTD
ACN 003 311 546 LTD
Berhark Pty Ltd
FS INVEST (UK HOLDINGS) LTD
CFS Investment Mgrs UK Ltd
Colonial First State Limited
CFS International Assets Ltd
CIM Trust Managers Ltd
Roodhill Nominees Ltd
CFS Fund Managers Ltd
Colonial UK Trustees Ltd
Xxxxxxx Xxxxx (Holdings) Ltd
Xxxxxxx Xxxxx Grp Trustee Ltd
Xxxxxxx Xxxxx & Company Ltd
Xxxxxxx Xxxxx Nominees Ltd
Xxxxxxx Xxxxx & Co (Intl) Ltd
Xxxxxxx Xxxxx Unit T Mgrs Ltd
Xxxxxxxxxx Xxxxxxx Ivory
CSI Services UK Ltd
-9-
Avanteos Pty Ltd
Emerald Holding Co Limited
Col Property Mgt WA P/L(Closed
CMG CH China Investments Ltd
Colonial First State Prop Grp
Combank Intl N V
XX Xxxxx Building Partnership
CBA IT Leasing (UK) Ltd
IT Receivables (UK) Ltd
HIC Finance Pty Ltd
COMSEC TRADING LTD
Pay Select
Xxxxx Pty Ltd
Fouron Pty Ltd
Agal Holdings Pty Ltd
Mitsubishi / M No1 Fleet Lease
Mitsubishi / M No2 Fleet Lease
Victorian Govt Fleet Lease
SA Govt Fleet Lease
Commonwealth Securities (Japan) PL - In liq
CMG Asia Pty Ltd
CMG Asia Life Holdings Ltd
CMG Asia Ltd
LG Inc
CBA New Zealand
Resource & Investment Fin Ltd
PT Bank Commonwealth
ASB Holdings
Sap Anan
CMG Mgmt Advisory Ltd
ACAPM HOLDINGS A PTY LTD
ACAPM HOLDINGS B PTY LTD
ACAPM PTY LTD
CFS PROPERTY (NZ) LIMITED
SBN NOMINEES
CS SECURITISATION TRUST 1
COMMONWEALTH PROPERTY PTY LTD
SBNSW
PARRAMATTA XXXXXXX UNIT TRUST
CS RESIDUAL FIXED TRUST
CS R'DUAL DISCRETIONARY TRUST
EUROPEAN BANKING UK
CBA NEW YORK
XXXXX CONTRA
FOURON CONTRA
CFS NZ LISTED PROPERTY TRUST
-10-
ELCON
BURDEKIN INVESTMENTS LIMITED
PONTOON PLC
CBA MTE RAIL COMPANY PTY LTD
MTE LESSOR 1 PTY LIMITED
MTE LESSOR 2 PTY LIMITED
MTE LESSOR 3 PTY LIMITED
MTE LESSOR 4 PTY LIMITED
MTE LESSOR 5 PTY LIMITED
MTE NOMINEES PARTNER PTY LTD
MTE DEBT VEHICLE PTY LTD
KIWI INCOME PROPERTIES LTD
SE ASIA_INDONESIA
COL PROTECTION INSURANCE FAC
COLONIAL E COMM LTD FAC
COLONIAL AFS SERVICES PTY LTD
CFS PROPERTY RETAIL PTY LTD
CFS PROPERTY RETAIL TRUST
CBA (EUROPE) FINANCE LTD (see also CB444)
COL PROTECTION INSURANCE CB418
CBA SINGAPORE USD CB388
QUAY (FUNDING) PLC
H-G FUND 5 CUSTODIANS PTY LTD
H-G FUND 5 (TRUST)
H-G DEV CUSTODIANS P/L
H-G DEVELOPMENT TRUST
SERIES 1997-1 MEDALLION TRUST
SERIES 1998-1 MEDALLION TRUST
SERIES 2000-1G MEDALLION TRUST
SERIES 2000-2G MEDALLION TRUST
SERIES 2001-1G MEDALLION TRUST
SERIES 2002-1G MEDALLION TRUST
SERIES 1997-1 CATS TRUST
SERIES 1998-1 CATS TRUST
SERIES 1999-1E CATS TRUST
GOLDSTAR TRUST NO 1
NIMITZ NOMINEES PTY LTD
COMM FOUNDATION PTY LTD
SHIELD LTD
Cwealth Securities (Japan) PL
CBA SINGAPORE
CBA (Europe) Finance Limited (see also CB415)
WATERLOO AND VICTORIA LTD
CBA HONG KONG USD
CBA JAPAN USD
CTB AUSTRALIA LTD USD
-11-
CBA ASIA LIMITED USD
TD WATERHOUSE HLDGS(AUST) P/L
TD WATERHOUSE INVESTOR SERV
TD WATERHOUSE NOMINEES
CFS INVESTMENTS LTD (NZD)
SERIES 1999-1 MEDALLION CREDIT LINKED TRUST
SERIES 2003-1G MEDALLION TRUST
CMG ASIA PENS&RETIREMENT LTD
CBA CAPITAL HOLDINGS INC
CBA FUNDING HOLDINGS PTY LTD
CBA CAPITAL TRUST 1
CBA FUNDING TRUST 1
PT FIRST STATE INVST INDONESIA
PREFERRED CAPITAL LIMITED
NEWPORT LIMITED
COMMFINANCE LIMITED
COMMINTERNATIONAL LIMITED
COL PROTECTION INS P/L APRA
COMMONWEALTH INS LTD APRA
ALTONA V6 PTY LIMITED
VERY FAST TURBINES PTY LTD
PADANG PTY LTD(ACN106 099 496)
M-LAND PTY LTD(ACN 106 099 923
GT FUNDING NO1 P/L(REFER CB478
GT OPERATINGNO1P/L(REFER CB479
BROADCASTING INFRASTUCTURE PL
PIF MANAGED PROPERTY PTY LTD
PERLS 2 TRUST
MEDALLION TRUST SERIES 2003-2
GT FUNDING NO 1 PTY LTD
GT OPERATING NO. 1 PTY LTD
SEAHORSE INVESTMENTS UK LTD
SENATOR HOUSE INVESTMENTS (UK)
WATERMARK LIMITED
NEPTUNE TRUST
LIGHTNING RIDGE S.A
MEDALLION TRUST SERIES 2004-1G
LOFT NO 1 PTY LTD
LOFT NO 2 PTY LTD
FRINGE PTY LTD
RELIANCE ACHIEVER PTY LTD(RAPL
Reliance Achiever Partnership
LILY PTY LTD
PAVILLION LIMITED
SHANGHAI WOFE
NEWHAM INVESTMENT COMPANY LTD
-12-
FIRST STATE INV (CAYMAN) LTD
ASB CAPITAL NO2 LIMITED
COMMCAPITAL S.a.r.l
NEWCASTLE INVESTMENT CO LTD
NORTH STAFFS INVESTMENT CO LTD
SYMETRY LIMITED
GREENWOOD LENDNING PTY LIMITED
AOT AUSTRALIA PTY LTD
AOT SECURITIES PTY LTD
Broadcasting Infrastructure Assets Partnership - Foxtel Partnership
INC SUBDIVISIONAL GROUP ELIMS
INT SUBDIV CMLA GRP CONS
INTERNAL IBS GBL FIN PROD CONS
INT CFS INV (NZ) LTD GRP CONS
INTERNAL ASB HOLDINGS GROUP
INT CFS PROP IIS GRP CONS
INT COMSEC GRP CONS
INT AUST IB & IB SUBS CONS
INT AUST CBAIF GRP CONS
INT FRM COLONIAL GRP CONS
INT FRM CHCPL GRP CONS
INT O/S IFS CHCPL GRP CONS
INTERNAL GRP COL HLDS XXX CONS
INT O/S IFS CHCPL GRP CONS
INT O/S ASB CMLA GRP CONS
INT CFS PROP CMLA GRP CONS
INTERNAL CIHL & CIHL SUBS CONS
INTERNAL IIS CONSOLIDATIONS
FRM AND CMLA CONSOL ADJ
FRM AND COL LIMITED CONSOL ADJ
FRM AND GROUP CONSOL ADJ
FRM AND CHCPL CONSOL ADJ
GRP AND COL LIMITED CONSOL ADJ
IFS AND GRP CONSOL ADJUST
CORP FIN AND GRP CONSOL ADJUST
CFS CONSOLIDATED ADJUSTMENTS
GRP CONSOLIDATION ADJUSTMENTS
CIHL Shareholder Fund Pty Ltd
SF1NPAnnuities-Super SEA
SF1NPAnnuities-Super SH
SF1NPANNUITIES-SUPER SH
CLL Shareholder Fund Pty Ltd
CMLA Shareholder Fund Pty Ltd
SF1TradPar - Super VPST
SF1TradPar - Super SH
SF1TradNonPar - Super VPST
-13-
SF1TradNonPar - Super SH
SF1LumpSumRisk - Super SH
SF1GroupRisk - Super SH
SF1Master Risk - Super SH
SF1InvAcctPar - Super VPST
SF1InvAcctPar - Super SH
SF1InvAcctNonPar - Super VPST
SF1InvAccNonPar - Super SH
SF1Shareholder - Super SH
SF1SUPER-RISK-LUMPSUM SH(CLL)
SF1SUPER-RISK-GROUP SH(CLL)
SF1SUPER-RISK SH(CLL)
NZ Stat Fund Main
NZ Stat Fund FIP
NZ Stat Fund LifeLink
SF1LUnitLinked(PH) - Ord POL
SF1LUnitLinked(PH) - Ord SH
SF1LShareholder - Ord SH
SF1LORD-INVESTLINK UL POL(CLL)
SF1LORD-INVESTLINK UL SH(CLL)
SF1LSHAREHOLDER-ORD SH(CLL)
SF2LUL(PH)ExcEasyOpt-SuperVPST
SF2LUL(PH)EasyOpt - Super VPST
SF2LUL(PH) - Super SH
SF2LShareholder - Super SH
SF2LSUPER-INVLINKULSUPER VPST
SF2L(PH)-SUPER SH(CLL)
SF3ParAnnuities - Ord SEA
SF3ParAnnuities - Ord SH
SF3ParAnnuities - Super SEA
SF3ParAnnuities - Super SH
SF3NonParAnnuities - Ord SEA
SF3NonParAnnuities - Ord SH
SF3NonParAnnuities - Super SEA
SF3NonParAnnuities - Super SH
SF3InvestAccPar - Super SEA
SF3InvestAccPar - Super SH
SF3InvestAccNonPar - Super SEA
SF3InvestAccNonPar - Super SH
SF3Shareholder - Ord SH
SF3Shareholder - Super SH
SF3SUPER-IMANN NPANN SEA(CLL)
SF3SUPER-IMANNUITIES SH(CLL)
SF3Super-ImAnnNPAnn SH(CLL)
SF4UL(PH)ExclEasyOpt-Super SEA
SF4UL(PH)EasyOpt - Super SEA
-14-
SF4UL(PH) - Super SH
SF4Shareholder - Super SH
SF4SUPER-INVLINKULALLPEN SEA
SF4(PH)-SUPER SH(CLL)
SF5TradPar - Ord POL
SF5TradPar - Ord SH
SF5TradNonPar - Ord POL
SF5TradNonPar - Ord SH
SF5LumpSumRisk - Ord SH
SF5DisabilityIncome - Ord SH
SF5GroupRisk - Ord SH
SF5Master Risk - Ord SH
SF5InvAcctPar - Ord POL
SF5InvestAccPar - Ord SH
SF5InvestAccNonPar - Ord POL
SF5InvestAccNonPar - Ord SH
SF5Shareholder - Ord SH
SF5ORD-RISK-LUMPSUM SH(CLL)
SF5ORD-RISK_TELEMARKETING(CLL)
SF5ORD-RISK-GROUP SH(CLL)
SF5ORD-RISK-SH(CLL)
CMF1 Super
CMF1 ADF
CMF1 PENSION
CMF2
CPSL INV
AERF
NZ - Master Super Scheme
NZ - Selective Retirement Plan
NZ Pru Super Portfolio Trust
NZ Pru Super Portf Trust SRP
UNCONFIRM MMBER COL SHRE TRUST
CSRF(COL SUPER RETIREMENT FUND
SUPERTRACE
CBADF
SBSADF
CLSMT
CLPSF
ACN 080 182 761 Pty Ltd
Allco Leasing Participation No 68
ANL Charterparty Partnership No 3
APRC AUST Trust No 1
APRC AUST Trust No 2
APRC Aust Trust No 4
Avanteos Broking Services P/L
Avanteos Investments Ltd
-15-
Avanteos P/L
Camooweal Participation No 1
CBA Mitsubishi Motors Australia Ltd Leveraged Lease P/ship (No. 1)
CBA Toyota Leveraged Lease Partnership No 1
CCC Commercial Pty Limited
CC Holdings No 2 Pty Limited
CC Holdings No.2 Trust
CC No 2 Pty Limited
CFCL International Share Fund - 100% VPST owned
CFS Seeding Trust
Chullora Equity Investment Partnership
Commonwealth Bank Vodafone Leveraged Lease No1 Partnership
Commonwealth Life Australian Active 0-3 Year Maturities Bond Fund
Commonwealth Lifetime Australian Active Share Fund
Commonwealth Lifetime Australian Savings Option Fund
Commonwealth Lifetime Australian Share Index Fund
Green Line Nominees Pty Ltd
Long Point Funding Pty Ltd
Xxxxx Street Holdings (No 2) Pty Ltd
Xxxxx Street No 2 Unit Trust
Xxxxx Street Holdings Pty Limited
Xxxxx Street Holdings Trust
Mitisubishi Motor Vehicle Fleet Lease Facility No.2 Partnership
Mitisubishi Motor Vehicle Fleet Lease Partnership
MTE Leasing Partnership
NEG Bayside Franchise Lease Partnership
NEG Swanston Franchise Lease Partnership
Pindar Funding Pty Limited
Pont Nominees Pty Ltd
Pont Securities Nominees No 2 Pty Ltd
SA Govt Motor Vehicle Fleet List Security Trust
Samsung Hull No 1268 Lease Partnership
South Australian Government Motor Vehicle Fleet Partnership
TAA (Comm) Leveraged Lease Partnership 1985
TAA Colonial Shareholder Trust
Taylored Super Solutions Pty Ltd
TB Staff Superannuation Fund Pty Ltd
TD Waterhouse Pty Ltd
Theoric Partnership
Viracocha (Australia) P/L
PRICOA Red Rocks Holding Co Pty Ltd
PRICOA Red Rocks Company Pty Ltd
PRICOA Green Cape Holding Co Pty Ltd
PRICOA Green Cape Company Pty Ltd
Lindfield Trading Pty Limited
Rose Bay Trading Pty Limited
-16-
Asia Pacific Receivables Corporation Ltd
Colonial Foundation Ltd
Colonial Share Plan Trust
Derogst P/L (IN LIQ)
Hotel Holdings & Services Pty Limited
Kingston LLP1 Partnership
Prime Investments Entity Ltd
Series 2003 - 1SME Medallion Credit Linked Trust
Sparad (No 25) Pty Limited
Colonial First State Rollover & Superannuation Fund
Colonial First State Pooled Superannuation Trust
Colonial First State - FirstChoice Superannuation Trust
CFM - Pooled Superannuation Trusts
Australian Eligible Rolloer Fund
Colonial Masterfund Approved Deposit Fund
Colonial MasterFund Superannuation Fund
Colonial Super Retirement Fund
Supertrace Eligible Rollover Fund
CFM Retirement Fund
Commonwealth Bank Approved Deposit Fund
Commonwealth Life Personal Superannuation Fund
Commonwealth Life Superannuation Mastertrust
Officers' Superannuation Fund
State Bank Supersafe Approved Deposit Fund
Colonial First State - FirstChoice Investments - Australian Boutique Shares
Blended
Colonial First State - FirstChoice Investments - Australian Share Fund Number 1
Colonial First State - FirstChoice Investments - Australian Share Fund Number 10
Colonial First State - FirstChoice Investments - Australian Share Fund Number 12
Colonial First State - FirstChoice Investments - Australian Share Fund Number 13
Colonial First State - FirstChoice Investments - Australian Share Fund Number 15
Colonial First State - FirstChoice Investments - Australian Share Fund Number 17
Colonial First State - FirstChoice Investments - Australian Share Fund Number 2
Colonial First State - FirstChoice Investments - Australian Share Fund Number 3
Colonial First State - FirstChoice Investments - Australian Share Fund Number 4
Colonial First State - FirstChoice Investments - Australian Share Fund Number 5
Colonial First State - FirstChoice Investments - Australian Share Fund Number 6
Colonial First State - FirstChoice Investments - Australian Share Fund Number 7
Colonial First State - FirstChoice Investments - Australian Share Fund Number 8
Colonial First State - FirstChoice Investments - Australian Share Fund Number 9
Colonial First State - FirstChoice Investments - Australian Shares Blended
Colonial First State - FirstChoice Investments - Cash
Colonial First State - FirstChoice Investments - Conservative Blended
Colonial First State - FirstChoice Investments - Conservative Fund Number 1
Colonial First State - FirstChoice Investments - Conservative Fund Number 2
Colonial First State - FirstChoice Investments - Conservative Fund Number 3
Colonial First State - FirstChoice Investments - Defensive Blended
-17-
Colonial First State - FirstChoice Investments - Fixed Interest Blended
Colonial First State - FirstChoice Investments - Fixed Interest Fund Number 1
Colonial First State - FirstChoice Investments - Fixed Interest Fund Number 2
Colonial First State - FirstChoice Investments - Fixed Interest Fund Number 3
Colonial First State - FirstChoice Investments - Global Share Fund Number 1
Colonial First State - FirstChoice Investments - Global Share Fund Number 2
Colonial First State - FirstChoice Investments - Global Share Fund Number 3
Colonial First State - FirstChoice Investments - Global Share Fund Number 4
Colonial First State - FirstChoice Investments - Global Share Fund Number 5
Colonial First State - FirstChoice Investments - Global Share Fund Number 6
Colonial First State - FirstChoice Investments - Global Share Fund Number 7
Colonial First State - FirstChoice Investments - Global Shares Blended
Colonial First State - FirstChoice Investments - Growth Blended
Colonial First State - FirstChoice Investments - Growth Fund Number 1
Colonial First State - FirstChoice Investments - Growth Fund Number 2
Colonial First State - FirstChoice Investments - Growth Fund Number 3
Colonial First State - FirstChoice Investments - Growth Fund Number 4
Colonial First State - FirstChoice Investments - High Growth Blended
Colonial First State - FirstChoice Investments - High Growth Fund Number 2
Colonial First State - FirstChoice Investments - International Fixed Interest
Fund 4
Colonial First State - FirstChoice Investments - Moderate Blended
Colonial First State - FirstChoice Investments - Moderate Fund Number 1
Colonial First State - FirstChoice Investments - Moderate Fund Number 2
Colonial First State - FirstChoice Investments - Moderate Fund Number 3
Colonial First State - FirstChoice Investments - Property Securities Blended
Colonial First State - FirstChoice Investments - Property Securities Fund
Number 1
Colonial First State - FirstChoice Investments - Property Securities Fund
Number 2
Colonial First State - FirstChoice Investments - Property Securities Fund
Number 3
Colonial First State - FirstChoice Investments - Small Companies Blended
Colonial First State - FirstChoice Investments - Specialist Fund 8
Colonial First State - FirstChoice Investments - Specialist Fund Number 1
Colonial First State - FirstChoice Investments - Specialist Fund Number 2
Colonial First State - FirstChoice Investments - Specialist Fund Number 4
Colonial First State - FirstChoice Investments - Australian Share Fund 14
Colonial First State - FirstChoice Investments - Global Share Fund 11
Colonial First State - FirstChoice Investments - Small Companies Fund 4
Colonial First State - FirstChoice Investments - Specialist Fund 8
Colonial First State - FirstChoice Investments - Australian Share Fund 16
Colonial First State - FirstChoice Investments - Global Share Fund 12
Colonial First State - FirstChoice Investments - High Growth Fund Number 1
Colonial First State - FirstChoice Investments - International Fixed Interest
Fund 4
Colonial First State - FirstChoice Investments - Small Companies Fund 5
Colonial First State - FirstChoice Investments - Specialist Fund 5
Colonial First State - FirstChoice Investments - Specialist Fund 6
Colonial First State - FirstChoice Investments - Specialist Fund 7
Colonial First State - FirstChoice Investments - Fixed Interest Fund 12
-18-
Colonial First State - FirstChoice Investments - Fixed Interest Fund 13
Colonial First State - FirstChoice Investments - Global Share Fund 9
Colonial First State - FirstChoice Investments - Global Share Fund 18
Colonial First State - FirstChoice Investments - Small Companies Fund 7
Colonial First State - FirstChoice Investments - Small Companies Fund 8
Colonial First State - FirstChoice Investments - Fixed Interest Fund 14
Colonial First State - FirstChoice Investments - Fixed Interest Fund 15
Colonial First State - FirstChoice Investments - Property Securities Fund 10
Colonial First State - FirstChoice Investments - Specialist Fund 8
Colonial First State - FirstChoice Investments - International Fixed Interest
Fund 5
Colonial First State - FirstChoice Investments - Multi Manager Global Property
Securities Fund
452 Capital Wholesale Absolute Income Fund
Commonwealth Australian Boutique Share Fund 3
Colonial First State 452 Wholesale Australian Share Fund
Colonial First State Wholesale 452 Geared Australian Share Fund
Colonial First State Wholesale Enhanced Yield Fund
Colonial First State Wholesale Enhanced Yield Fixed Interest Component
Colonial First State Wholesale PM Capital Australian Share Fund
Commonwealth Australian Boutique Share Fund 1
Commonwealth Australian Boutique Share Fund 3
Commonwealth Australian Boutique Share Fund 4
Commonwealth Australian Boutique Shares Blended
Commonwealth Australian Share Fund 14
Commonwealth Australian Share Fund 15
Commonwealth Australian Share Fund 16
Commonwealth Australian Share Fund 17
Commonwealth Australian Share Fund 18
Commonwealth Australian Share Fund 19
Commonwealth Australian Share Fund 22
Commonwealth Australian Shares Fund 1
Commonwealth Australian Shares Fund 10
Commonwealth Australian Shares Fund 11
Commonwealth Australian Shares Fund 12
Commonwealth Australian Shares Fund 2
Commonwealth Australian Shares Fund 3
Commonwealth Australian Shares Fund 4
Commonwealth Australian Shares Fund 5
Commonwealth Australian Shares Fund 6
Commonwealth Australian Shares Fund 7
Commonwealth Australian Shares Fund 8
Commonwealth Australian Shares Fund 9
Commonwealth Cash Fund 1
Commonwealth Cash Fund 2
Commonwealth Cash Fund 3
Commonwealth Cash Fund 4
Commonwealth Diversified Fund 1
-19-
Commonwealth Diversified Fund 2
Commonwealth Diversified Fund 3
Commonwealth Diversified Fund 4
Commonwealth Diversified Fund 5
Commonwealth Diversified Fund 6
Commonwealth Diversified Fund 7
Commonwealth Diversified Fund 8
Commonwealth Fixed Interest Fund 1
Commonwealth Fixed Interest Fund 11
Commonwealth Fixed Interest Fund 2
Commonwealth Fixed Interest Fund 3
Commonwealth Fixed Interest Fund 4
Commonwealth Fixed Interest Fund 5
Commonwealth Fixed Interest Fund 6
Commonwealth Fixed Interest Fund 7
Commonwealth Global Share Fund 11
Commonwealth Global Share Fund 12
Commonwealth Global Share Fund 13
Commonwealth Global Shares Fund 1
Commonwealth Global Shares Fund 10
Commonwealth Global Shares Fund 2
Commonwealth Global Shares Fund 3
Commonwealth Global Shares Fund 4
Commonwealth Global Shares Fund 5
Commonwealth Global Shares Fund 6
Commonwealth Global Shares Fund 7
Commonwealth Global Shares Fund 8
Commonwealth Global Shares Fund 9
Commonwealth International Fixed Interest Fund 1
Commonwealth International Fixed Interest Fund 2
Commonwealth International Fixed Interest Fund 3
Commonwealth Multi-Manager Australian Shares Fund
Commonwealth Multi-Manager Conservative Fund
Commonwealth Multi-Manager Defensive Fund
Commonwealth Multi-Manager Fixed Interest Fund
Commonwealth Multi-Manager Global Shares Fund
Commonwealth Multi-Manager Growth Fund
Commonwealth Multi-Manager High Growth Fund
Commonwealth Multi-Manager Moderate Fund
Commonwealth Multi-Manager Property Securities Fund
Commonwealth Multi-Manager Small Companies Fund
Commonwealth Property Fund 1
Commonwealth Property Fund 2
Commonwealth Property Fund 3
Commonwealth Property Fund 4
Commonwealth Property Fund 5
-20-
Commonwealth Property Fund 6
Commonwealth Property Securities Fund 8
Commonwealth Small Companies Fund 1
Commonwealth Small Companies Fund 2
Commonwealth Small Companies Fund 3
Commonwealth Specialist Fund 5
Commonwealth Specialist Fund 4
Commonwealth Fixed Interest Fund 13
Commonwealth Global Share Fund 9
Commonwealth Small Companies Fund 7
Commonwealth Small Companies Fund 8
Commonwealth Fixed Interest Fund 14
Commonwealth Fixed Interest Fund 15
Commonwealth Property Securities Fund 10
Commonwealth Specialist Fund 8
Commonwealth International Fixed Interest Fund 5
Commonwealth Australian Share Fund 22
Commonwealth Global Share Fund 14
Commonwealth Global Share Fund 15
Commonwealth Global Share Fund 16
Commonwealth Global Share Fund 17
Commonwealth Global Share Fund 18
Commonwealth Multi Manager Global Property Securities Fund
Commonwealth Global Property Securities Fund 1
Commonwealth Emerging Markets Fund 1
Colonial First State Australian Share Fund
Colonial First State Balanced Fund
Colonial First State Cash Fund
Colonial First State Conservative Fund
Colonial First State Developing Companies Fund
Colonial First State Diversified Fund
Colonial First State Future Leaders Fund
Colonial First State Geared Global Share Fund
Colonial First State Geared Share Fund
Colonial First State Global Health & Biotechnology Fund
Colonial First State Global Resources Fund
Colonial First State Global Share Fund
Colonial First State Global Technology & Communications Fund
Colonial First State High Growth Fund
Colonial First State Imputation Fund
Colonial First State Income Fund - Entry Fee Option
Colonial First State Premier CMT
Colonial First State Property Securities Fund
Colonial First State Australian Share Fund - Nil Entry Fee Option
Colonial First State Balanced Fund - Nil Entry Fee Option
Colonial First State Cash Fund - Nil Entry Fee Option
-21-
Colonial First State Conservative Fund - Nil Entry Fee Option
Colonial First State Developing Companies Fund - Nil Entry Fee Option
Colonial First State Diversified Fund - Nil Entry Fee Option
Colonial First State Future Leaders Fund - Nil Entry Fee Option
Colonial First State Geared Global Share Fund - Nil Entry Fee Option
Colonial First State Geared Share Fund - Nil Entry Fee Option
Colonial First State Global Health & Biotechnology Fund - Nil Entry Fee Option
Colonial First State Global Resources Fund - Nil Entry Fee Option
Colonial First State Global Share Fund - Nil Entry Fee Option
Colonial First State Global Technology & Communications Fund - Nil Entry Fee
Option
Colonial First State High Growth Fund - Nil Entry Fee Option
Colonial First State Imputation Fund - Nil Entry Fee Option
Colonial First State Income Fund - Nil Entry Fee Option
Colonial First State Property Securities Fund - Nil Entry Fee Option
Colonial First State Wholesale Capital Secure Fund
Colonial First State Wholesale Global Bond Fund
Colonial First State Wholesale International High Yield Fund
Colonial First State Wholesale Americas Share Fund
Colonial First State Wholesale Asian Share Fund
Colonial First State Wholesale Japanese Share Fund
Colonial First State Wholesale Pan-European Share Fund
Colonial First State Wholesale World Equities Fund
Colonial First State World Equities TAA Fund
Colonial First State Wholesale Geared Global Fund
Colonial First State Wholesale Australian Bond Fund
Colonial First State Wholesale Australian Corporate Debt Fund
Colonial First State Wholesale Australian Share Fund
Colonial First State Wholesale Balanced Fund
Colonial First State Wholesale Cash Fund
Colonial First State Wholesale Conservative Fund
Colonial First State Wholesale Conservative Growth Fund
Colonial First State Wholesale Diversified Fixed Interest Fund
Colonial First State Wholesale Diversified Fund
Colonial First State Wholesale Geared Share Fund
Colonial First State Wholesale Global Health & Biotechnology Fund
Colonial First State Wholesale Global Resources Fund
Colonial First State Wholesale Global Share Fund
Colonial First State Wholesale Global Technology & Communications Fund
Colonial First State Wholesale High Growth Fund
Colonial First State Wholesale High Yield Fund
Colonial First State Wholesale Imputation Fund
Colonial First State Wholesale Income Fund
Colonial First State Wholesale Industrial Share Fund
Colonial First State Wholesale Leaders Fund
Colonial First State Wholesale Property Securities Fund
Colonial First State Wholesale Sector Neutral Fund
-22-
Colonial First State Wholesale Short Term Australian Bond Fund
Commonwealth Asia Pacific Share Fund
Colonial First State Wholesale Australian Share Fund - Core
Colonial First State Wholesale Global Corporate Debt Enhanced Fund
Colonial First State Wholesale Global Corporate Debt Fund
Colonial First State Wholesale Indexed Australian Bond Fund
Colonial First State Wholesale Indexed Australian Share Fund
Colonial First State Wholesale Indexed Global Bond Fund
Colonial First State Wholesale Indexed Global Share Fund
Colonial First State Wholesale Indexed Property Securities Fund
Colonial First State Wholesale Low Tracking Error Australian Share Fund - Core
Colonial First State Wholesale Premium Cash Enhanced Fund
Colonial First State Wholesale Premium Cash Fund
Colonial First State Wholesale Small Companies Fund - Core
Commonwealth Airports Fund
Commonwealth Infrastructure and Utilities Fund
Commonwealth Premium International Equity Funds
Commonwealth Tracker Enhanced
Colonial First State Global Diversified Strategies Fund
Colonial First State Wholesale Fixed Interest Strategies Fund
Colonial First State Wholesale Fixed Interest Strategies Fund 2 (No 2)
Colonial First State Wholesale Global Diversified Strategies Fund
Colonial First State Wholesale Long Short Share Strategies Fund
Colonial First State Wholesale Long Short Share Strategies Fund (No 2)
Colonial First State Wholesale Relative Value Share Strategies Fund
Colonial First State Wholesale Relative Value Share Strategies Fund (No 2)
Colonial First State Wholesale Tactical Strategies Fund
Colonial First State Wholesale Tactical Strategies Fund 2 (No 2)
Storm Financial Australian Industrials Index Group
Storm Financial Australian Resources Index Fund
Storm Financial Australian Sharemarket Index Fund
Storm Financial Australian Technology Index Fund
Colonial First State Infrastructure Finance Fund 2001
Colonial First State Infrastructure Investment Fund 2001
Commonwealth Diversified Share Fund
Commonwealth Lifetime Australian Active 0-5 yr Maturities Bond Fund
Commonwealth Lifetime Australian Index-Linked Bond Fund
Colonial First State Mortgage Backed Securities Fund
Colonial First State Wholesale Internal Mortgage Fund
CFS Diversified Balanced Fund
Colonial First State Bricks & Mortar Fund
Colonial First State Cash Management Trust
Colonial First State Diversified Private Equity Fund
Colonial First State Wholesale 452 Australian Share Fund
Colonial First State Wholesale Global Emerging Markets Fund
Colonial First State Wholesale Guaranteed Mortgage Fund
-23-
Colonial First State Wholesale Infrastructure Income Fund
Count First Australian Share Fund
HIH Fund
CFCL Market Linked Australian Industrial Share (Superannuation) Fund
CFCL Non Market Linked Australian Industrial Share Fund
CFCL North Terrace Finance Fund Xx.0
XXXX Xxxxx Xxxxxxx Finance Fund No.2
CFCL Property Securities (Superannuation) Fund
CFCL Structured Investment Fund
Milberry Trust
Riccarton Mall Trust
Southbank Trust
Victoria Ave Trust - Terminated 7/4/03
CFCL Global Resources Fund
CFCL International Resources Fund
CFCL Statutory Fund Options Trust
CMLA Global Resources Fund
CMLA International Share Fund
CMLA Market Linked Australian Share Fund
CMLA Non Market Linkted Australian Industrial Share Fund
CMLA Statutory Fund Options Trust
Colonial Annuity Mortgage Trust
Colonial Mortgage Trust
Statutory Annuity Investments Fund
Statutory Cash Fund
Statutory Fixed Interest Fund
Commonwealth Property Securities Fund
Commonwealth Australian Shares Fund
Commonwealth International Shares Fund
Commonwealth Balanced Fund
Commonwealth Bond Fund
Commonwealth Share Income Fund
Commonwealth Income Fund
Commonwealth Growth Fund
Commonwealth Cash Management Trust
Commonwealth Div Share Fd
CPIF Head Trust
C1 Trust
Spring Trust
Allara Trust
York Trust
Hunter Trust
Alexandria Trust
I1 Trust
Altona Trust
210 Xxxxxxxxx Trust
-24-
R1 Trust
Salamander Trust
Midland Trust
Grosvenor Place Trust
Beenleigh partnership
PTAL ATF R1 Trust and CBOSC (Caringbah partnership)
PTAL ATF Midland Trust and CBOSC (Midland partnership)
Hunter Street partnership
Queen Street partnership
Grosvenor Place Trust
Colonial First State Wholesale Diversified Property Fund
I2 Trust
Xxxxx Farm Trust
Commonwealth International Real Estate Trust
Commonwealth Property Hotel Fund
CPHF Investment Fund
CPHF Investment Fund No 2
CPOF Head Trust
000 Xxxx Xxxxxx Trust
000 Xxxx Xxxxxx Trust
000 Xxxxxx Xxxxxx Trust
000 Xxxxxx Xxxxxx Trust
000 Xxxx Xxxxxxx Xx Trust
Burwood Trust
Finlay Crisp Trust
Parliament Place Trust
Ord Street Trust
Colin Street Trust
000 Xxxxxxxx Xxxxxx Trust
Freshwater Office Trust No. 1
Freshwater Holding Trust No 1
Australand Stage 3A partner trust
CFCL Property Trust No. 1
AAP Centre 000 Xxxxxx Xx Partnership
000 Xxxxxxxx Xxxxxx Partnership
King Street Wharf Partnership- Australand stage 3A partner trust & Multiplex
stage 3A
Landowning Trust
Freshwater Holding No 1 Pty Ltd
CFM Property Fund
Westpac Plaza Partnership
Grosvenor Place Partnership
Grosvenor Place Pty Ltd
000 Xxxxxxx Xxxxxx Pty Limited
CLL Property Trust
PPS
PPS Partnership (SPPS ps)
-25-
PPS Discretionary Trust (SPPS discretionary trust)
Kent Street Trust
Commonwealth Property Investment Trust
Aurora Place Partnership
Commonwealth Property Diversified Pool
Colonial First State Property Opportunistic Partnership 1
Opportunistic Holding Company Pty Limited
Lidcombe Opportunistic Investment Company
Point Cook Opportunistic Investment Company
Moonee Ponds Land Trust (Site A)
Cammeray Opportunistic Investment Company Pty Ltd
Moonee Ponds Opportunistic Investment Company
Runaway Bay Partnership
Rockingham Partnership
Colonial First State Retail Property Trust (FME)
Colonial First State Retail Property Pty Ltd (Trustee)
CFS Special Purpose Investment Vehicle
CFS Xxxxxx Retail Trust
Colonial Mutual Choice Property Fund No 1
Colonial First State Retail Property Trust
Xxxxx Park Trust
CC No 1 Trust
CC No1 Trust & CC No 2 Trust
International Opportunistic Real Estate Fund
International Private Equity Real Estate Fund
CFSP Asset Management
PIF Managed Property Pty Ltd
Private Investor Fund 1
Colonial First State Property Opportunistic Partnership 2
Forest Hill Trust
-26-
