U.S. $750,000,000
ME PORTFOLIO MANAGEMENT LIMITED
SMHL GLOBAL FUND NO. 7
U.S. $750,000,000 Class A1 Mortgage Backed Floating Rate Notes,
UNDERWRITING AGREEMENT
September ___, 2004
Credit Suisse First Boston LLC
As Representative of the Several Underwriters,
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Perpetual Trustees Australia Limited (ABN 86 000 000 000), a
corporation duly incorporated and existing under the Corporations Xxx 0000 (Cth)
of the Commonwealth of Australia ("PTAL"), in its capacity as trustee of the
SMHL Global Fund No. 7 (the "Fund", and PTAL in that capacity being the "ISSUER
TRUSTEE" acting at the direction of ME Portfolio Management Limited (ABN 79 005
964 134), as manager of the Fund (the "MANAGER") proposes to sell to the several
Underwriters listed in Schedule I hereto (the "UNDERWRITERS"), for whom Credit
Suisse First Boston LLC ("CSFB") is acting as representative (the
"REPRESENTATIVE"), U.S.$750,000,000 principal amount of Class A1 Mortgage Backed
Floating Rate Notes (the "CLASS A1 NOTES") issued by the Issuer Trustee. Each
Note will be secured by the assets of the Fund. The Issuer Trustee also proposes
to issue (euro)500,000,000 principal amount of Class A2 Mortgage Backed Floating
Rate Notes (the "CLASS A2 NOTES" and, together with the Class A1 Notes, the
"CLASS A NOTES") and A$35,100,000 principal amount of Class B Mortgage Backed
Floating Rate Notes (the "CLASS B NOTES" and, together with the Class A Notes,
the "Notes") which are not being sold to the Underwriters pursuant to this
Agreement. The assets of the Fund include, among other things, a pool of
variable and fixed rate residential housing loans (the "HOUSING LOANS")
initially originated by Members Equity Pty Limited (ABN 56 070 887 679)
("MEMBERS EQUITY") for Superannuation Members Home Loans Origination Fund No. 3
(the "ORIGINATION FUND") including all monies at any time paid or payable
thereon or in respect thereof from, after, August 18, 2004 (the "CUT-OFF DATE")
with respect to payments of principal and after the Closing Date (as defined
herein) with respect to payments of interest, rights under certain mortgage
insurance policies with respect to the Housing Loans, rights under the Mortgages
with respect to the Housing Loans, the amounts on deposit in the Collection
Account, amounts available under the Payment Funding Facility, the Redraw
Funding Facility, the Top-up Funding Facility and the rights of the Issuer
Trustee under the Basic Documents (other than
rights it holds personally). The Fund will be established pursuant to the Master
Trust Deed between the Manager and the Issuer Trustee, dated July 4, 1994 as
amended and restated (the "MASTER TRUST DEED") and a Notice of Creation of a
Securitisation Fund between the Manager and Issuer Trustee, dated August 19,
2004 (the "NOTICE OF CREATION") which sets forth specific provisions regarding
the Fund. A Supplementary Bond Terms Notice Class A Notes and Class B Notes, to
be dated on or about [_________], 2004 (the "SUPPLEMENTARY BOND TERMS NOTICE
CLASS A NOTES AND CLASS B NOTES") between the Issuer Trustee, the Note Trustee
and the Manager, which sets forth the terms and conditions of the Notes. The
Note Trust Deed, to be dated on or about [__________], 2004 (the "NOTE TRUST
DEED") by and among the Issuer Trustee, the Manager, AIB/BNY Fund Management
(Ireland) Limited (the "IRISH PAYING AGENT"), the Security Trustee and The Bank
of New York (the "NOTE TRUSTEE") provides for the issuance and registration of
the Class A Notes in accordance with the terms and conditions attached thereto.
Members Equity will act as mortgage manager (the "MORTGAGE MANAGER") of the
Housing Loans. The Manager and Members Equity are each a "MEMBERS EQUITY PARTY"
and collectively are referred to herein as the "MEMBERS EQUITY PARTIES."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Class A1 Notes. The United
States Securities Exchange Act of 1934, as amended, is herein referred to as the
"Exchange Act".
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Supplementary Bond Terms Notice Class A Notes and Class B
Notes, the Mortgage Origination and Management Agreement, the Notes, the
Security Trust Deed, the Note Trust Deed, the Fixed-Floating Rate Swap, the
Currency Swaps, the Redraw Funding Facility, the Top-Up Funding Facility, the
Payment Funding Facility, the Supplementary Bond Terms Notice - Liquidity Notes
and the Notice of Creation of a Securitisation Fund. To the extent not defined
herein, capitalized terms used herein have the meanings assigned to such terms
in the Prospectus (as defined hereinafter).
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Fund only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
The Members Equity Parties and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule A as follows:
2. Representations and Warranties of the Issuer Trustee and the Members Equity
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) Since the respective dates as of which information is provided in the
Prospectus (as defined herein), there has been no 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
2
PTAL or the Fund, except as disclosed in the Prospectus, which is
material in the context of performing the Issuer Trustee obligations
and duties under the Class A1 Notes and each Basic Document to which
it is or is to be a party.
(b) PTAL is a corporation duly incorporated and existing under the
Corporations Xxx 0000 (Cth) of the Commonwealth of Australia with the
power and authority (corporate and otherwise) to conduct its business
as described in the Prospectus, to issue the Class A1 Notes and to
enter into and perform the Issuer Trustee's obligations under this
Agreement and the Basic Documents and PTAL 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 so contemplated herein or in the Basic Documents.
(c) This Agreement has been duly authorized, executed and delivered by
PTAL.
(d) The Class A1 Notes have been duly authorized by PTAL, and, when
issued the Class A1 Notes have been (and duly authenticated by the
Principal Paying Agent), delivered and paid for pursuant to this
Agreement, they will constitute valid and binding obligations of the
Issuer Trustee, entitled to the benefits provided by the Note Trust
Deed and the Security Trust Deed, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the
enforcement of creditors' rights generally and to general equitable
principles.
(e) The execution, delivery and performance by PTAL of each of the
Basic Documents to which it either is a party or is to be a party and
this Agreement has been duly authorized by PTAL, and, when executed
and delivered by it and each of the other parties thereto, each of the
Basic Documents to which it is a party 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) PTAL 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 the Issuer Trustee
is either a party or by which the Issuer Trustee or any of the Issuer
Trustee's properties is bound, except in the case of sub-clause (ii)
above for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of
the Class A1 Notes and the performance by it of all of the provisions
of the Issuer Trustee's obligations under the Class A1 Notes, the
Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (A) 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 the Issuer Trustee is bound or to which any
3
of the Issuer Trustee's property or assets is subject, (B) result in
any violation of the provisions of PTAL's constitution, (C) result in
any violation of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Issuer Trustee or any of the Issuer Trustee's
properties or (D) result in the creation or imposition of any lien or
encumbrance upon any of the Issuer Trustee's property pursuant to the
terms of any indenture, mortgage, contract or other instrument other
than pursuant to the Basic Documents, which, in the case of clauses
(A), (C) and (D) above, would have a material adverse effect on the
transactions contemplated herein or in the Basic Documents; and, to
the knowledge of the Issuer Trustee no consent, approval,
authorization, order, license, registration or qualification of or
with any such court or governmental agency or body in Australia is
required for the issue and sale of the Class A1 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 as
may be required under state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Class A1 Notes by
the Underwriters and the registration of the charge created by the
Security Trust Deed with the Australian Securities and Investments
Commission.
(g) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or,
to the knowledge of the Issuer Trustee, threatened against or
affecting the Issuer Trustee or the Fund, or to which the Issuer
Trustee is or may be a party or to which the Issuer Trustee or any
property of the Fund is or may be the subject: (i) asserting the
invalidity of this Agreement or of any of the Basic Documents, (ii)
seeking to prevent the issuance of the Class A1 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 could
materially adversely affect the U.S. Federal or Australian Federal or
state income, excise, franchise or similar tax attributes of the Class
A1 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 have a material adverse effect on the interests of the
holders of any of the Class A1 Notes.
(h) The representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects.
(i) The Issuer Trustee 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 Fund under
clause 26 of the Master Trust Deed.
(j) PTAL has not taken any corporate action and (to its knowledge and
belief having made reasonable inquiry and investigation) no legal
proceedings have 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 personal assets.
4
(k) Subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "TAX ACT") and compliance by the
Underwriters with Section 10(b) hereto, no stamp or other duty is
assessable or payable in, and no withholding or deduction for any
taxes, duties, assessments or governmental charges of whatever nature
is imposed or made for or on account of any income, registration,
transfer or turnover taxes, customs or other duties or taxes of any
kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein
or thereof having power to tax in such jurisdiction, in connection
with (i) the authorization, execution, delivery or performance of this
Agreement, any of the Basic Documents to which the Issuer Trustee is
or is to be a party or (ii) the authorization, execution, issuance,
sale or delivery of the Notes, or (iii) the sale and delivery of the
Notes by the Underwriters contemplated by this Agreement.
(l) The Class A1 Notes and the obligations of the Issuer Trustee under
the Note Trust Deed will be secured (pursuant to the Security Trust
Deed) by a first floating charge over the assets of the Fund, subject
to the Prior Interest (as defined in the Security Trust Deed).
(m) No event has occurred or circumstances arisen which, had the Class
A1 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) obligate it to retire as Issuer Trustee or constitute a
Trustee's Default (as defined in the Master Trust Deed).
II. The Members Equity parties, jointly and severally, represent and warrant to
each Underwriter and the Issuer Trustee that:
(a) Except as described in the Prospectus, 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 (i) the general affairs, business, management, financial
position, properties, stockholders' equity or results of operations of
any Members Equity Party, (ii) their general affairs, business,
condition (financial or otherwise) taken as a whole, or (iii) assets
of the Fund.
(b) Each Members Equity Party is a corporation duly incorporated and
validly existing under the Corporations Xxx 0000 (Cth) of the
Commonwealth of Australia; each Members Equity Party has the power and
authority (corporate and otherwise) to own its properties and conduct
its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the Basic Documents
to which it is a party and carry out the transactions contemplated by
such Basic Documents; each Members Equity Party has been duly
qualified or licensed for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification or licensing, other than where the failure to be so
qualified or licensed or in good standing would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents.
5
(c) This Agreement has been duly authorized, executed and delivered by
each of the Members Equity Parties.
(d) The Basic Documents to which any Members Equity Party is or is to
be a party have been duly authorized by the applicable Members Equity
Party, and, upon effectiveness of the Registration Statement, the Note
Trust Deed will have been duly qualified under the Trust Indenture Act
and, when executed and delivered by each Members Equity Party which is
a party thereto and each of the other parties thereto, each of the
Basic Documents to which any Members Equity Party is a party will
constitute a legal, valid and binding obligation of each such Members
Equity Party, enforceable against each such Members Equity Party in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles; and
the Class A1 Notes and the Basic Documents each will conform to the
descriptions thereof in the Prospectus.
(e) Neither Members Equity Party is, nor with the giving of notice, or
lapse of time or both would 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 it is a party
or by which it or any of its properties is bound, except in the case
of (ii) for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of
the Class A1 Notes and the performance by each Members Equity Party of
all of the provisions of its obligations under the Class A1 Notes, the
Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (A) 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 either
Members Equity Party is a party or by which either Members Equity
Party is bound or to which any of the property or assets of either
Members Equity Party is subject, (B) result in any violation of the
provisions of the constitution of either Members Equity Party, (C)
result in any violation of any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over either Members Equity Party, or any of its
properties, or (D) 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, which, in the case of clauses
(A), (C) and (D) above, would have a material adverse effect on the
transactions contemplated herein or in the Basic Documents; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Class A1 Notes or the
consummation by either Members Equity Party 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 in connection with the purchase and distribution of
the Class A1 Notes by the Underwriters and the registration of the
charge created by the Security Trust Deed with the Australian
Securities and Investments Commission.
6
(f) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or,
to the knowledge of either Members Equity Party, threatened against or
affecting either Members Equity Party or its properties, the Issuer
Trustee in its capacity as trustee of the Fund or the Fund's assets
or, to which either Members Equity Party or the Issuer Trustee in its
capacity as trustee of the Fund is a party or to which either Members
Equity Party, the Issuer Trustee in its capacity as trustee of the
Fund or any property of either Members Equity Party or the Issuer
Trustee in its capacity as trustee of the Fund is the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic
Documents, (ii) seeking to prevent the issuance of the Class A1 Notes
or the consummation of any of the transactions contemplated by this
Agreement or any of the Basic Documents, (iii) that could materially
adversely affect the U.S. Federal or Australian Federal or state
income, excise, franchise or similar tax attributes of the Class A1
Notes, (iv) that could materially and adversely affect either Members
Equity Party's 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 have a material
adverse effect on the interests of the holders of any of the Class A1
Notes or the marketability of the Class A1 Notes.
(g) 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 have not been filed or described as required.
(h) The representations and warranties of each Members Equity Party
contained in the Basic Documents (other than the representations and
warranties regarding the Housing Loans made by the Mortgage Manager in
the Mortgage Origination and Management Agreement) are true and
correct in all material respects as of the date when made.
(i) Ernst & Young are independent public accountants with respect to
each Members Equity Party within the meaning of the standards
established by the American Institute of Certified Public Accountants.
(j) Each Members Equity Party owns, possesses or has obtained all
authorizations, licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign 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 neither Members Equity Party
has received any actual notice of any proceeding relating to
revocation or modification of any such authorization, license, permit,
certificate, consent, order, approval or other authorization; and each
Members Equity Party is in compliance with all laws and regulations
necessary for the performance of its obligations under this Agreement
and the Basic Documents.
(k) Each Members Equity Party has not taken any corporate action nor
(to the best of its knowledge and belief having made reasonable
inquiry and investigation) no other steps
7
have been taken or legal proceedings been started or threatened
against either Members Equity Party 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.
(l) Since [_________], 2004 there has been no material adverse change
or any development involving a prospective material adverse change in
the condition (financial or otherwise) of either of the Members Equity
Parties.
(m) Neither the Fund or any of the Members Equity Parties are open-end
investment companies, unit investment trusts or face-amount
certificate companies that are or are required to be registered under
Section 3 of the United States Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT"); and neither of the Fund or any
of the Members Equity Parties are and, after giving effect to the
offering and sale of the Class A1 Notes and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act.
III. The Manager represents and warrants to each Underwriter and the Issuer
Trustee that:
(a) The Manager has filed a registration statement on Form S-11 (No.
333-117983), including a form of preliminary prospectus, for
registration of the Class A1 Notes under the Securities Act and has
filed such amendments thereto and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required.
Such registration statement in the form in which it first became
effective and as amended or supplemented thereafter (if applicable)
and the prospectus constituting a part thereof (including all
information deemed to be a part thereof pursuant to Rule 430A(b) of
the rules and regulations of the Commission under the Securities Act)
as amended or supplemented thereafter (if applicable) under the
Securities Act are herein referred to as the "REGISTRATION STATEMENT"
and the "PROSPECTUS", respectively, except that if any revised
prospectus shall be provided to you for use in connection with the
offering of the Class A1 Notes which differs from the Prospectus on
file with the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b)), the term "PROSPECTUS" shall
refer to such revised prospectus from and after the time it is first
provided to you for such use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Manager, threatened by the Commission. The Registration
Statement and Prospectus (as amended or supplemented if the Manager
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the rules and regulations of the Commission
thereunder and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"TRUST INDENTURE ACT") and do not and will not, as of the applicable
effective date as to the Registration
8
Statement and any amendment thereto and as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
the foregoing representations and warranties shall not apply to (i)
that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) of the Note
Trustee under the Trust Indenture Act, and (ii) statements in or
omissions from the Registration Statement or the Prospectus based upon
written information furnished to the Manager by any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b).
(c) To the knowledge of the Manager, no event has occurred which would
entitle either Members Equity Party to direct the Issuer Trustee to
retire as trustee of the Fund under clause 18 of the Master Trust
Deed.
(d) No event has occurred or circumstances arisen which, had the Class
A1 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's Default (as defined in the
Prospectus).
(e) As of the Closing Date, the Issuer Trustee holds each related
Housing Loan as trustee of the Fund.
(f) Subject to Section 128F of the Tax Act applying to exempt interest
payable on the Class A1 Notes from Australia withholding tax, no stamp
or other duty is assessable or payable in, and no withholding or
deduction for any taxes, duties, assessments or governmental charges
of whatever nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction,
in connection with the authorization, execution or delivery of the
agreements to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Class A1 Notes and the
performance by each Members Equity Party of the Basic Documents to
which it is or is to be a party and the Class A1 Notes.
3. Purchase, Sale and Delivery of Class A1 Notes. On the basis of the
representations, warranties and agreements contained herein, but subject to the
terms and conditions herein set forth, the Issuer Trustee, at the direction of
the Manager, agrees to sell the Class A1 Notes to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the Issuer
Trustee at a purchase price of 99.86% of the principal amount of the Class A1
Notes (which aggregate amounts shall be net of the commissions payable to the
Underwriters) the respective principal amount of each class of Class A1 Notes
set forth opposite the names of the Underwriters in Schedule I hereto. In
addition, the Underwriters shall severally and not jointly
9
be responsible for certain out-of-pocket expenses incurred by the Members Equity
Parties in connection with the offering of the Class A1 Notes, as shall be
agreed to separately by the Underwriters and the Members Equity Parties (and
such expenses may include a portion of the related attorneys fees incurred by
the Members Equity Parties).
The Issuer Trustee will deliver against payment of the purchase price
the Class A1 Notes in the form of one or more permanent Global Notes in
definitive form (the "GLOBAL NOTES") deposited with the Note Trustee as
custodian for The Depository Trust Company (the "DTC") and registered in the
name of Cede & Co., as nominee for DTC. Interests in any permanent Global Notes
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Class A1 Notes shall
be made by the Underwriters in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to the
Representative drawn to the order of Australia and New Zealand Banking Group
Limited (the "U.S. CURRENCY SWAP PROVIDER") at the office of Mayer, Brown, Xxxx
& Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 10:00 A.M.,
New York City time, on September 16, 2004 or at such other time not later than
seven full business days thereafter as CSFB and the Manager determine, such time
being herein referred to as the "CLOSING DATE," against delivery to the Note
Trustee as custodian for DTC of the Global Notes representing all of the Class
A1 Notes. The Global Notes will be made available for checking at the above
office at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. The Manager and the Issuer Trustee understand that
the several Underwriters propose to offer the Class A1 Notes for sale to the
public as set forth in the Prospectus.
5. Certain Agreements of the Issuer Trustee and the Members Equity Parties.
I. The Members Equity Parties, jointly and severally, covenant and agree with
each of the several Underwriters as follows:
(a) The Manager will file with the Commission pursuant to and in
accordance with Rule 430A and subparagraph (4) of Rule 424(b) copies
of an amended Prospectus containing all of the information omitted
from the Prospectus in reliance upon Rule 430A at the time the
Registration Statement became effective. The Manager will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Manager will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or
the related Prospectus and subject to section 5(I)(c), will not effect
such amendment or supplementation without the Representative's consent
(which consent will not be unreasonably withheld); and the Manager
will also advise the Representative promptly of the institution by the
Commission of any stop order proceedings in respect of the
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Class A1 Notes
is required to be delivered under the Securities Act in connection
with sales by any Underwriter or dealer,
10
the Manager becomes aware of the occurrence of any event 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 to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Manager will promptly notify the Representative of
such event and will promptly prepare and file with the Commission, at
its own expense, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Neither the Representative's consent to, nor the
Underwriters' delivery of to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, the Manager will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the effective date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the
Securities Act.
(e) The Manager will furnish to the Representative copies of each
Registration Statement (three (3) of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Class A1 Notes is required to be
delivered under the Securities Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such reasonable
quantities as the Representative requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or
the effective time of the Registration Statement. All other documents
shall be so furnished as soon as available. The Manager will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Manager will use its best efforts to arrange for the
qualification of the Class A1 Notes for sale and the determination of
their eligibility for investment under the laws of such jurisdictions
as the Representative designates and will use its best efforts to
continue such qualifications in effect so long as required for the
distribution provided that the Manager will not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any such State.
(g) So long as the Class A1 Notes are outstanding, the Manager will,
upon request, furnish to the Representative (i) copies of each
certificate, the annual statements of compliance and the annual
independent certified public accountant's audit report on the
financial statements furnished to the Issuer Trustee or the Note
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 or the Note Trustee, (ii) copies of each amendment to
any of the Basic Documents, (iii) copies of all reports or other
communications (financial or other) furnished to holders of the Class
A1 Notes, and copies of any reports and financial statements, if any,
furnished to or filed with the Commission, or any governmental or
regulatory authority or any national securities
11
exchange, and (iv) from time to time such other information concerning
the Fund or the Manager as the Representative may reasonably request.
(h)So long as the Class A1 Notes are outstanding, the Manager will not
be or become, an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(i) To the extent, if any, that the ratings provided with respect to
the Class A1 Notes by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by the
Manager, the Manager shall use its best efforts to furnish such
documents and take any other such action.
(j) The Manager will assist the Representative in making arrangements
with DTC, Euroclear and Clearstream, Luxembourg concerning the issue
of the Class A1 Notes and related matters.
(k) The Manager will not take, or cause to be taken, any action and
will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Class A1 Notes not being
assigned the ratings referred to in Section 6(o) below.
(l) Each Members Equity Party, jointly and severally, will pay all
expenses (together with value added tax where applicable) incidental
to the performance of the Members Equity Parties' obligations under
this Agreement, for any filing fees and other expenses (including fees
and disbursements of underwriters' counsel and issuers' counsel)
incurred in connection with qualification of the Class A1 Notes for
sale under the laws of such jurisdictions as the Representative
designates and the printing of memoranda relating thereto, for any
fees charged by the independent accountants, for any fees charged by
the rating agencies for the rating of the Class A1 Notes, for any
travel expenses of any of the Members Equity Parties' officers and
employees and any other expenses of any of Members Equity Party in
connection with attending or hosting meetings with prospective
purchasers of the Class A1 Notes and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters.
(m) The Manager will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and initial sale of the
Class A1 Notes and on the execution and delivery of this Agreement.
All payments to be made by the Members Equity Parties hereunder shall
be made without withholding or deduction for or on account of any
present or future taxes, duties or governmental charges whatsoever
unless the Members Equity Parties are compelled by law to deduct or
withhold such taxes, duties or charges. In that event, the applicable
Members Equity 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 amounts that would have been
received if no withholding or deduction had been made.
(n) For a period from the date of this Agreement to the Closing Date,
neither the Manager or Members Equity will not offer, sell, contract
to sell, pledge or otherwise dispose of,
12
directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to asset-backed
securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent
of the Representative (which consent will not be unreasonably
withheld) for a period beginning at the date of this Agreement and
ending at the later of the Closing Date or the lifting of trading
restrictions by the Representative.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the
Issuer Trustee from the sale of the Class A1 Notes pursuant to this
Agreement in the manner specified in the Prospectus under the caption
"Use of Proceeds".
(b) The Issuer Trustee will 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 Class A1 Notes or
the enforcement or delivery of this Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred
to in Section 6 below and, in particular the Issuer Trustee shall
execute those of the Basic Documents required to be executed by the
Issuer Trustee not executed on the date hereof on or before the
Closing Date.
(d) The Issuer Trustee will ensure that the Security Trustee will
procure or cause to be procured that the charges created by or
contained in the Security Trust Deed are registered within all
applicable time limits in all appropriate registers in Australia.
(e) The Issuer Trustee will perform all its obligations under, and
subject to, 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.
(f) The Issuer Trustee will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Class A1 Notes not being
assigned the ratings referred to in Section 6(o) below.
(g) The Issuer Trustee will not prior to or on the Closing Date amend
the terms of any Basic Document to which it is a party (except if such
amendment does not affect the Fund) nor execute any of the Basic
Documents to which it is a party other than in the agreed form without
the consent of the Representative.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Class A1 Notes on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Members Equity Parties and the Issuer Trustee herein, to the
accuracy of the statements of officers of the Members Equity Parties and the
Issuer Trustee made pursuant to the provisions hereof, to the performance of the
13
Members Equity Parties and the Issuer Trustee of their obligations hereunder and
to the following additional conditions precedent:
(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 or on
such later date to which you have consented; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission.
The Prospectus, including all price-related information previously
omitted from the prospectus which formed a part of the Registration
Statement at the time it became effective, in accordance with Rule
430A, shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with Section 5.I.(a) hereof; and prior to the
Closing Date the Manager shall have provided evidence satisfactory to
the Representative of such timely filing, and all requests for
additional information shall have been complied with to the
satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of any of the Members
Equity Parties, the Issuer Trustee or any Swap Party and their
respective subsidiaries, in each case, taken as one enterprise, which,
in the judgment of a majority in interest of the Underwriters
including the Representative, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Class A1 Notes; (ii) any
downgrading in the rating of any debt securities of any of the
Manager, Members Equity, the Issuer Trustee or any Swap Party by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or
review its rating of the Class A1 Notes or any debt securities of any
of the Manager, Members Equity or the Issuer Trustee (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any
change in United States, Australian or international financial,
political or economic conditions or currency exchange rates or
exchange controls as would, in the judgment of a majority in interest
of the Underwriters, including the Representative, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Class A1 Notes, whether in the primary market or
in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally
on the New York Stock Exchange, the London Stock Exchange, the Irish
Stock Exchange or any other exchange on which the Class A1 Notes are
listed, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of any of the Manager,
Members Equity, the Issuer Trustee or any Swap Party on any exchange
or in the over-the-counter market; (v) any banking moratorium declared
by U.S. Federal, New York, London, England or Australian authorities;
or (vi) any outbreak or escalation of major hostilities or act of
terrorism involving the United States, the United Kingdom or
Australia, any
14
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters, including the Representative, the
effect of any such outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Class A1 Notes.
(c) The Representative shall have received a certificate, dated such
Closing Date, of the managing director, director or any chief general
manager of each Members Equity Party and (as to paragraphs (i) and
(ii) below only) of an authorized officer of the Issuer Trustee in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that: (i) the representations and
warranties of such entity in this Agreement are true and correct; (ii)
such entity has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date; (iii) in the case of the Manager, no stop
order suspending the effectiveness of any Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission; and (iv) subsequent to the date
of the most recent financial statements supplied by the Members Equity
Parties to the Underwriters or the Representative on behalf of the
Underwriters, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of such entity and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(d) Freehills, Australian counsel for Members Equity and the Manager,
shall have furnished to the Representative and addressed to the
Underwriters their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, a copy of which
opinion is attached hereto as Exhibit A.
(e) Greenwood & Freehills Pty Limited, Australian tax counsel for
Members Equity and the Manager, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, a copy of which
opinion is attached hereto as Exhibit B.
(f) The Representative shall have received two letters, one dated the
date hereof and one dated the Closing Date, each substantially in the
form attached hereto as Exhibit H, of Ernst & Young confirming that
they are independent public accountants within the standards
established by the American Institute of Certified Public Accountants
and the meaning of the Securities Act and the applicable published
rules and regulations thereunder (the "RULES AND REGULATIONS") and
stating to the effect that they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other financial
information contained in the Registration Statement (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Members Equity Parties and their subsidiaries subject to the internal
controls of such parties' accounting system or are
15
derived directly from such records by analysis or computation or from
the collateral tape containing the description of the Housing Loans)
with the results obtained from inquiries, a reading of such general
accounting records and collateral tape and other procedures specified
in such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such results,
except as otherwise specified in such letter.
(g) Mayer, Brown, Xxxx & Maw LLP, United States counsel for the
Members Equity Parties and the Issuer Trustee, shall have furnished to
the Representative their written opinion, dated the Closing Date, in
form and substance satisfactory to the Representative, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters, to the
effect that:
(1) The Note Trust Deed has been duly qualified under the Trust
Indenture Act;
(2) To such counsel's knowledge, there are no material contracts,
indentures, or other documents of a character required to be
described or referred to under either the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto;
(3) The Fund is not and, after giving effect to the offering and
sale of the Class A1 Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act;
(4) No consent, approval, authorization or order of, or filing
with, any governmental agency located in the United States or
body or any court located in the United States is required for
the consummation of the transactions contemplated by this
Agreement in connection with the issuance or sale of the Class A1
Notes by the Issuer Trustee, except such as have been obtained
and made under the Securities Act and the Trust Indenture Act and
such as may be required under state securities laws;
(5) The Registration Statement was filed and was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus either was filed with
the Commission pursuant to subparagraph (4) of Rule 424(b) on the
date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Securities Act, the Trust Indenture Act and
the Rules and Regulations; such counsel have no reason to believe
that any part of the Registration Statement or any amendment
thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted
16
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Prospectus or any amendment or supplement thereto, as of its
issue date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings are
accurate and fairly present the information required to be shown:
it being understood that such counsel need express no opinion as
to the financial statements or other financial data contained in
the Registration Statement or the Prospectus;
(6) The statements in the Prospectus under the Captions
"Description of the Class A1 Notes" and "Description of the
Transaction Documents", insofar as they purport to summarize
certain terms of the Class A1 Notes and the applicable Basic
Documents, constitute a fair summary of the provisions purported
to be summarized;
(7) The statements contained in the Prospectus under the captions
"ERISA Considerations", "Legal Investment Considerations" and
"United States Federal Income Tax Matters", to the extent that
they constitute matters of federal law or legal conclusions with
respect thereto, while not purporting to discuss all possible
consequences of investment in the Class A1 Notes, are correct in
all material respect with respect to those consequences or
matters that are discussed therein; and
(8) This Agreement constitutes a legal, valid and binding
obligation of each of Members Equity, the Manager and the Issuer
Trustee.
(h) Mayer, Brown, Xxxx & Maw LLP, United States federal income tax
counsel for the Members Equity Parties and the Issuer Trustee, shall
have furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the
Representative, a copy of which opinion is attached hereto as Exhibit
C.
(i) Xxxxx Xxxxx York, counsel for the Issuer Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters, a copy of which opinion is attached hereto as Exhibit D.
(j) Mallesons Xxxxxxx Xxxxxx, counsel for the Note Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters, a copy of which is attached hereto as Exhibit E.
17
(k) Counsel to the U.S. Currency Swap Provider shall have furnished to
the Representative and the Members Equity Parties its written opinion
in form and substance satisfactory to the Representative, a copy of
which opinion will be attached hereto as Exhibit F.
(l) Counsel to Australia and New Zealand Banking Group Limited (the
"EURO CURRENCY SWAP PROVIDER") shall have furnished to the
Representative and the Members Equity Parties its written opinion in
form and substance satisfactory to the Representative, a copy of which
opinion will be attached hereto as Exhibit G.
(m) XxXxx Xxxxxx, LLP, special United States counsel to the
Representative and the Underwriters, shall have furnished to the
Representative their written opinion, dated the Closing Date, with
respect to the Registration Statement, the Prospectus and other
related matters as the Representative 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.
(n) The Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not
otherwise described in this Agreement allowing the Representative to
rely on such opinion as if it were addressed to the Representative.
(o) At the Closing Date, the Class A1 Notes shall have been rated
"AAA" by Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc. ("Standard and Poor's") and "Aaa" by
Xxxxx'x Investors Service, Inc. ("Moody's" and together with Standard
and Poor's, the "Rating Agencies") as evidenced by letters from the
Rating Agencies.
(p) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(q) The Class A2 Notes will have been validly issued by the Issuer
Trustee upon the directions of the Manager on or prior to the Closing
Date and are outstanding without any default thereon.
(r) Application has been made to list the Class A2 Notes on the
Official List of the Irish Stock Exchange Limited and such application
has not been rejected.
(s) The Class B Notes will have been validly issued by the Issuer
Trustee upon the directions of the Manager on or prior to the Closing
Date and are outstanding without any default thereon.
(t) The Underwriters have purchased the Class A2 Notes pursuant to the
Subscription Agreement, dated as of the date hereof, among the Issuer
Trustee, the Manager and Members Equity and the Underwriters.
18
(u) The US Swap Counterparty, the Euro Swap Counterparty Members
Equity, the Manager and the Representative shall have entered into an
indemnity agreement, in a form reasonably satisfactory to the
Representative, on or prior to the Closing Date.
(v) On or prior to the Closing Date the Members Equity Parties and the
Issuer Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably
request.
7. Indemnification and Contribution.
(a) Each of the Members Equity Parties, jointly and severally, agrees to
indemnify and hold harmless each Underwriter and the Issuer Trustee, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter or the Issuer Trustee may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter or the Issuer Trustee in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that neither of the Members Equity Parties will be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to either of the Members
Equity Parties by: (i) any Underwriter, through the Representative, specifically
for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below, or (ii) the U.S. Currency Swap Provider and Euro Currency
Swap Provider, for inclusion in the Prospectus under the heading "Description of
the Class A1 Notes--The Currency Swap--The Currency Swap Provider"; and
provided, further, that with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from any preliminary prospectus the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Class A1 Notes concerned, to the
extent that a prospectus relating to such Class A1 Notes was required to be
delivered by such Underwriter under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Class A1 Notes to such
person, a copy of the Prospectus if the Manager had previously furnished copies
thereof to such Underwriter at least two Business Days prior to the required
time of delivery of the related trade confirmations to potential investors.
19
(b)Each Underwriter will severally and not jointly indemnify and hold harmless
Members Equity, the Issuer Trustee and the Manager, their respective partners,
their respective directors and their respective officers and each person, if
any, who controls such company within the meaning of Section 15 of the
Securities Act or section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which such company may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Registration Statement or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) any
untrue statement or alleged untrue statement of any material fact contained in
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Manager by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by Members Equity, the Issuer Trustee or the
Manager in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: (i) the concession and discount percentages appearing in the
[third] paragraph under the caption "Plan of Distribution - Underwriting" and
(ii) the information contained in the [sixth] and [eighth] paragraphs under the
caption "Plan of Distribution - Underwriting"; provided, however, that the
Underwriters shall not be liable for any losses, claims, damages or liabilities
arising out of or based upon the Manager's failure to perform its obligations
under Section 5.I.(b) of this Agreement.
(c)Promptly after receipt by an indemnified party under this subsection (c) of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an
20
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action and (ii) does not include a statement
as to, or an admission of, fault, culpability or a failure to act by or on
behalf of an indemnified party.
(d)If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Members Equity
Parties and the Issuer Trustee on the one hand and the Underwriters on the other
from the offering of the Class A1 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 Members Equity Parties and the Issuer
Trustee on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Members Equity Parties and the Issuer Trustee on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Members Equity Parties and the Issuer Trustee bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Members Equity Parties and the Issuer Trustee or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). In addition, nothing in this
Section 7 shall require any of the Members Equity Parties or any Underwriter to
contribute to the amount paid or payable by any Members Equity Party or any
Underwriter, as applicable, from any losses, claims, damages or liabilities
arising out of or based on information contained in or omitted from the
information set forth in the Prospectus under the heading "Description of the
Class A1 Notes--The Currency Swap--The Currency Swap Provider". Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Class A1 Notes underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which 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 in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e)The obligations of the Members Equity Parties and the Issuer Trustee under
this Section shall be in addition to any liability which the Members Equity
Parties and the Issuer Trustee may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Securities Act; and the obligations of the
21
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Members Equity Parties or the Issuer
Trustee, to each officer of the Members Equity Parties or the Issuer Trustee who
has signed the Registration Statement and to each person, if any, who controls
the Members Equity Parties within the meaning of the Securities Act.
(f)To the extent that any payment of damages by Members Equity or the Manager
pursuant to subsection 7(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 provision in any replacement of Prudential Standard APS
120-).
(g)The remedies provided in this Section 7, are not exclusive and shall not
limit any rights or remedies which may otherwise by available to any indemnified
party at law or in equity.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Class A1 Notes hereunder on the Closing Date and the
aggregate principal amount of Class A1 Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Class A1 Notes that the Underwriters are obligated to
purchase on such Closing Date, the Representative may make arrangements
satisfactory to the Manager for the purchase of such Class A1 Notes by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Class A1 Notes that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate principal amount of Class A1 Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Class A1
Notes that the Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representative and the Manager for the purchase
of such Class A1 Notes by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Manager, except as provided in Section 9. As
used in this Agreement, the term "UNDERWRITER" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Members Equity Parties, the Issuer Trustee or their respective officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the Members
Equity Parties, the Issuer Trustee or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Class A1 Notes. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Class A1 Notes by the
Underwriters is not consummated, each of the Members Equity Parties, jointly and
severally, shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to
22
Section 5 and the respective obligations of the Members Equity Parties, the
Issuer Trustee and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Class A1 Notes have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Class A1 Notes by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv), (v) or (vi) of Section 6(b), the Members
Equity Parties, jointly and severally, will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Class A1 Notes.
10. Selling Restrictions.
(a) No offering circular, prospectus or other disclosure document in relation to
any Class A1 Notes has been lodged with the Australian Securities and
Investments Commission or the Australian Stock Exchange Limited. Each
Underwriter severally (but not jointly) represents and agrees that it:
(1) has not, directly or indirectly, offered for issue or sale or
invited applications for the issue of or for offers to purchase
nor has it sold, the Class A1 Notes;
(2) will not, directly or indirectly, offer for issue or sale or
invited applications for the issue of or for offers to purchase
nor will it sell the Class A1 Notes; and
(3) has not distributed and will not distribute any draft,
preliminary or definitive offering circular, or any advertisement
or other offering material,
in the Commonwealth of Australia, its territories or possessions ("AUSTRALIA"):
(1) unless the amount payable for the Class A1 Notes on acceptance of
the offer by each offeree or invitee is a minimum amount of
A$500,000 (or its equivalent in another currency) (disregarding
amounts, if any, lent by ME Portfolio Management Limited or any
other person offering the Class A1 Notes or any associate of it,
which will also include for this purpose the Issuer Trustee) or
the offer or invitation is otherwise an offer or invitation for
which no disclosure is required to be made under Part 6D.2 of the
Corporations Xxx 0000 (Cth) and the Corporations Regulations made
under the Corporations Xxx 0000 (Cth);
(2) unless the offer, invitation or distribution complies with all
applicable laws, regulations and directives in relation to the
offer, invitation or distribution and does not require any
document to be lodged with the Australian Securities and
Investments Commission; and
(3) if its employees involved in the offer, sale or distribution, as
the case may be, are actually aware at the time of such offer,
sale or distribution that the
23
Class A1 Notes will subsequently be acquired by an associate of
ME Portfolio Management Limited (which shall also include for
this purpose the Issuer Trustee and associates of the Issuer
Trustee) within the meaning of section 128F of the Income Tax
Assessment Act (other than in the capacity of a dealer, manager
or underwriter in relation to a placement of the Class A1 Notes)
as identified on a list provided by ME Portfolio Management
Limited and attached hereto as Appendix I, which may be amended,
from time to time, by written notice to the Representative and
the Underwriters (the "List").
(b) Each Underwriter severally (but not jointly) agrees that, in connection
with the primary distribution of the Class A1 Notes, it will not sell any Class
A1 Notes to any person if, at the time of such sale, the employees of the
Underwriter aware of, or involved in, the sale know, or have reasonable grounds
to suspect that, as a result of such sale, such Class A1 Notes or any interest
in such Class A1 Notes were being, or would later be acquired (directly or
indirectly) by an associate of the Issuer Trustee or ME Portfolio Management
Limited for the purposes of section 128F of the Income Tax Assessment Act.
(c) Each Underwriter agrees that it must offer the Class A1 Notes for which
it subscribes for sale within 30 days of the issue of those Class A1 Notes. Such
offer must only be by one of the following means (or a combination thereof);
(1) as a result of negotiations being initiated by the
underwriter in electronic form on Reuters or the electronic
information system made available to its subscribers by
Bloomberg, L.P., specifying in such offer the name of the
issuer and the price at which the Class A1 Notes are offered
for sale; or
(2) by the Underwriter offering those Class A1 Notes for sale to
at least 10 persons, each of whom (i) must be carrying on a
business of providing finance, or investing or dealing in
securities, in the course of operating in financial markets;
and (ii) who was not known or suspected to be an associate
of any of the others (within the meaning of section 128F of
the Income Tax Assessment Act), as identified on the List;
or
(3) to at least 100 persons who it would be reasonable to regard
as either having acquired instruments similar to the Class
A1 Notes in the past or as likely to be interested in
acquiring Class A1 Notes.
(d) Each Underwriter will provide the Issuer Trustee (within five Business
Days of the offer of such Class A1 Notes by it) a written statement which sets
out the details of the relevant offer.
(e) Each Underwriter (severally, not jointly) agrees to co-operate with
reasonable requests from the Issuer Trustee for information for the purposes of
assisting the Issuer Trustee to demonstrate that the public offer test under
section 128F of the Tax Act has been satisfied, provided that no Underwriter
shall be obliged to disclose the identity of the purchaser of any Note or any
information from which such identity might/would be capable of being
ascertained,
24
or any information the disclosure of which would be contrary to or
prohibited by any relevant law, regulation or directive.
(f) Each Underwriter (severally and not jointly) agrees that:
(1) it has not offered or sold and, prior to the expiry of a
period of six months from the Closing Date, will not offer or
sell any Class A1 Notes to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom
within the meaning of the Public Offer of Securities
Regulations 1995, as amended (the "UK Regulations");
(2) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity
within the meaning of Section 21 of the Financial Services and
Markets Xxx 0000, as amended (the "FSMA") received by it in
connection with the issue or sale of any Class A1 Notes in
circumstances in which section 21(1) of the FSMA does not
apply to the Issuer Trustee; and
(3) it has complied and will comply with all applicable
provisions of the UK Regulations and the FSMA with respect to
anything done by it in relation to the Class A1 Class A1 Notes
in, from or otherwise involving the United Kingdom.
(g) Each Underwriter (severally and not jointly) agrees that such
Underwriter will not distribute or circulate, whether directly or indirectly,
the Prospectus in Singapore other than to:
(1) persons in Singapore under circumstances in which any offer
or invitation to subscribe for or purchase, or sale of, Class A1
Notes does not constitute an offer, invitation or sale to the
public in Singapore; or
(2) the public (including any person selected by reference to him
being a member of the public, or any section of the public
whether by selection as customers or in any other manner) or any
person in Singapore pursuant to, and in accordance with the
conditions of, an exemption within the ambit of Subdivision (4)
of Division 1 to Part XIII of the Securities and Futures Act
(Chapter 289) of Singapore to whom any Class A1 Notes may be
offered or sold under such exemption.
(h) Each Underwriter (severally and not jointly) agrees that:
(1) it has not offered or sold and will not offer or sell in Hong
Kong, by means of any document, any Notes other than to persons
whose ordinary business is to buy or sell shares or debentures,
whether as principal or agent, or in circumstances which do not
constitute an offer to the public within the meaning of the
Companies Ordinance (Cap. 32) of Hong Kong; and
25
(2) it has not issued and will not issue any advertisement,
invitation or document relating to the Notes, whether in Hong
Kong or elsewhere, which is directed at, or the contents of which
are likely to be accessed or read by, the public in Hong Kong
(except if permitted to do so under the securities laws of Hong
Kong) other than with respect to Notes which are or are intended
to be disposed of only to persons outside Hong Kong or only to
"professional investors" within the meaning of the Securities and
Futures Ordinance (Cap. 571) of Hong Kong and any rules made
thereunder.
(i) Each Underwriter (severally and not jointly) agrees:
(1) except in circumstances which do not constitute an offer to
the public within the meaning of the Companies Xxx 0000 (as
amended) of Ireland (the "1963 Act"), it has not offered or sold
and will not sell any Class A1 notes in Ireland or elsewhere, by
means of any document prior to the application for listing of the
Class A1 notes being made and the Irish Stock Exchange having
approved the Listing Particulars in accordance with the European
Communities (Stock Exchange) Regulations, 1984 (the "Irish Stock
Exchange Regulations") and thereafter by means of any documents
other than:
(a) the Listing Particulars; and/or
(b) the form of application issued in connection with the Class
A1 Notes which indicates where the Listing Particulars can be
obtained or inspected or which is issued with the Listing
Particulars;
(2) it has complied with and will comply with all applicable
provisions of the 1963 Act and the Irish Stock Exchange
Regulations with respect to anything done by it in relation to
the Class A1 Notes in, from or otherwise involving Ireland;
(3) it has not made and will not make any offer of Class A1 Notes
which would require a prospectus to be issued under the European
Communities (Transferable Securities and Stock Exchange)
Regulations 1992 of Ireland; and
(4) to the extent applicable, it will not underwrite the issue of
the Class A1 Notes otherwise than in 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 50
and any conduct of business rules made under Section 37.
(j) Each Underwriter (severally and not jointly) acknowledges that the
Class A1 notes may not be offered, sold or distributed in the Kingdom of Spain
save in accordance with the requirements of the Spanish Securities Market Law of
July 28, 1988 (Ley 00/0000, xx 00 xx xxxxx, xxx Xxxxxxx xx Xxxxxxx) as amended
and restated, and Royal Decree 291/1992 on Issues and Public Offerings for the
Sale 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.
26
(k) Each underwriter represents and agrees that no action has or will be
taken by it which would allow an offering (or a "sollecitazione
all'investimento") of the Class A1 notes to the public in the Republic of Italy,
and that the sale of the Class A1 notes to any persons in the Republic of Italy
shall be effected in accordance with Italian securities, tax and other
applicable laws and regulations.
Each underwriter represents that it has not offered, sold or delivered
and will not offer, sell or deliver any of the Class A1 notes or distribute or
make available any of the Class A1 notes or copies of this prospectus or any
other offering material relating to the Class A1 notes in the Republic of Italy
except:
o to professional investors (operatori qualificati), as
defined in Article 31, second paragraph of Regulation No.
11522 of July 1, 1998 issued by the Commissione Nazionale
per le Societa e la Borsa ("CONSOB"), as amended and
integrated from time to time;
o in circumstances which are exempted from the rules on
solicitation of investments pursuant to Article 100 of
Legislative Decree No. 58 of February 24, 1998 (the
"Financial Services Act") and Article 33, first paragraph,
of CONSOB Regulation No. 11971 of May 14, 1999, as amended
and integrated from time to time; or
o to an Italian resident who submits outside the Italian
territory an unsolicited offer to purchase such Class A1
notes.
(l) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any Members Equity Party that
any action has been or will be taken in any jurisdiction outside the United
States by the Issuer Trustee or any Underwriter that would permit a public
offering of the Class A1 Notes, or possession or distribution of the Prospectus
or any other offering material, in any country or jurisdiction where action for
that purpose is required. Each Underwriter (severally and not jointly) will
comply with all applicable securities laws and regulations in each jurisdiction
in which it purchases, offers, sells or delivers Class A1 Notes or has in its
possession or distributes the Prospectus or any other offering material, in all
cases at its own expense.
11. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement and issues the Class
A1 Notes only in its capacity as trustee of the Fund and in no other
capacity. A liability incurred by the Issuer Trustee acting in its
capacity as Issuer Trustee of the Fund arising under or in connection
with this Agreement, the Class A1 Notes or the Fund is limited to and
can be enforced against the Issuer Trustee only to the extent to which
it can be satisfied out of assets and property of the Fund out of
which the Issuer Trustee is actually indemnified for such liability.
This limitation of the Issuer Trustee's liability applies despite any
other provisions of this Agreement (other than section 11(c)) 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, the
Class A1 Notes or the Fund.
27
(b) Each Underwriter and each of the Members Equity Parties may not
xxx the Issuer Trustee in respect of liabilities incurred by the
Issuer Trustee, acting in its capacity as Issuer Trustee of the Fund,
in any capacity other than as trustee of the Fund including seeking
the appointment of a receiver (except in relation to the assets of the
Fund), or a liquidator, an administrator or any other similar person
to the Issuer Trustee or prove in any liquidation, administration or
arrangements of or affecting the Issuer Trustee (except in relation to
the assets of the Fund).
(c) The provisions of this Section 11 shall not apply to any
obligation or liability of the Issuer Trustee to the extent that it is
not satisfied because under a Transaction Document (as defined in the
Master Trust Deed) 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 Fund as a result of the Issuer Trustee's fraud,
negligence or willful default (as defined in the Security Trust Deed).
(d) It is acknowledged that the Manager, the Mortgage Manager, the
Security Trustee, the U.S. Currency Swap Provider, the Euro Currency
Swap Provider, the Liquidity Facility Provider, the Payment Funding
Facility Provider, the Redraw Funding Facility Provider, the Top-Up
Funding Facility Provider, the Fixed-Floating Rate Swap Providers, the
Note Trustee, the Principal Paying Agent, the Note Registrar and the
Calculation Agent (each, a "RELEVANT PARTY") are responsible under the
Transaction Documents (as defined in the Master Trust Deed) for
performing a variety of obligations relating to the Fund. No act or
omission of the Issuer Trustee (including any related failure to
satisfy its obligations (including a breach of representation or
warranty) under the Transaction Documents) will be considered fraud,
negligence or willful default (as defined in the Security Trust Deed)
of the Issuer Trustee for the purpose of this Agreement to the extent
to which the act or omission was caused or contributed to by any
failure by any Relevant Party (other than any person for whom the
Issuer Trustee is responsible or liable for in accordance with any
Transaction Document (as defined in the Master Trust Deed)) to fulfill
its obligations relating to the Fund or by any other act or omission
of a Relevant Party or by any other such person.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this Agreement has authority to act on behalf of the
Issuer Trustee in a way which exposes the Issuer Trustee to any
personal liability and not act or omission of any such person will be
considered fraud, negligence or willful default (as defined in the
Security Trust Deed) of the Issuer Trustee for the purpose of
paragraph (c) of this clause 11.
(f) The Issuer Trustee is not obligated to do or refrain from doing
anything under this Agreement (including incur any liability) unless
the Issuer Trustee's liability is limited in the same manner as set
out in paragraphs (a) and (c) of this clause.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process.
Each of the Members Equity Parties and the Issuer Trustee hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the
28
transactions contemplated hereby. Each of the Members Equity Parties and the
Issuer Trustee irrevocably appoints CT Corporation, 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any such
suit or proceeding, and agrees that service of process upon such agent, and
written notice of said service to it by the person serving the same to the
address provided in Section 17, shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. Each of the Members
Equity Parties and the Issuer Trustee further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect for so long as the Class A1 Notes remain outstanding.
13. Satisfaction of Obligations in United States Dollars.
The obligation of any of the Members Equity Parties or the Issuer
Trustee in respect of any sum due to any Underwriter shall, notwithstanding any
judgment in a currency other than United States dollars, not be discharged until
the first business day, following receipt by such Underwriter of any sum
adjudged to be so due in such other currency, on which (and only to the extent
that) such Underwriter may in accordance with normal banking procedures purchase
United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
each of the Members Equity Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
14. Foreign Taxes. All payments to be made by the Issuer Trustee and any Members
Equity Party hereunder shall be made without withholding or deduction for or on
account of any present or future taxes, duties or governmental charges
whatsoever unless the Issuer Trustee or such Members Equity Party, as
applicable, is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Issuer Trustee or such Members Equity Party, as
applicable, shall pay such additional amounts as may be necessary in order that
the net amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction had been
made.
15. Waiver of Immunities. To the extent that any of the Issuer Trustee and
Members Equity Parties or any of their properties, assets or revenues may have
or may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection this Agreement, the Issuer Trustee and the Members Equity
Parties, as applicable, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
16. Judgment Currency. If any judgment or order in any legal proceeding against
any of the Issuer Trustee and the Members Equity Parties is given or made for
any amount due hereunder
29
and such judgment or order is expressed and paid in a currency (the "JUDGMENT
CURRENCY") other than United States dollars and there is any variation as
between (i) the rate of exchange (the "JUDGMENT RATE") at which the United
States dollar amount is converted into Judgment Currency for the purpose of such
judgment or order, and (ii) the rate of exchange (the "MARKET RATE") at which
the person to whom such amounts is paid (the "PAYEE") is able to purchase United
States dollars with the amount of the Judgment Currency actually received by the
holder, then the difference, expressed in United States dollars, between such
amount calculated at the Judgment Rate and such amount calculated at the Market
Rate shall be indemnified (a) if negative by the Issuer Trustee and the Members
Equity Parties, as applicable, to the Payee and (b) if positive by the Payee to
the Issuer Trustee and the Members Equity Parties, as applicable. The foregoing
indemnity shall constitute a separate and independent obligation of the Issuer
Trustee, the Manager and Members Equity or the Payee, as the case may be, and
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "RATE OR EXCHANGE" shall include any premiums and
costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
17. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representative at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxx; if sent to the Manager will be mailed, delivered or telegraphed and
confirmed to the Manager at 000 Xxxxxxx Xxxxxx, Xxxxx 00, Xxxxxxxxx, Xxxxxxxx
0000, Xxxxxxxxx (Facsimile No. 612-9605 6200), Attention: Manager Capital
Markets; if sent to the Issuer Trustee, mailed, delivered or telegraphed and
confirmed to the Issuer Trustee at Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx 0000, Xxxxxxxxx (Facsimile No. 612-92217870), Attention: Manager
Securitsation; and if sent to Members Equity, mailed, delivered or telegraphed
and confirmed to Members Equity at 000 Xxxxxxx Xxxxxx, Xxxxx 00, Xxxxxxxxx,
Xxxxxxxx 0000, Xxxxxxxxx (Facsimile No. 613-96056200), Attention: Xxxx Xxxxxx;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
18. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
19. Representation of Underwriters. The Representative will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representative will be binding upon all the Underwriters.
20. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
21. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
30
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return the enclosed counterparts
hereof, whereupon it will become a binding agreement between the parties listed
below in accordance with its terms.
Very truly yours,
ME PORTFOLIO MANAGEMENT LIMITED
By:
-----------------------------------------
Name:
Title:
PERPETUAL TRUSTEES AUSTRALIA
LIMITED
By:
---------------------------------------
Name:
Title:
MEMBERS EQUITY PTY LIMITED
By:
-----------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the day
first above written:
CREDIT SUISSE FIRST BOSTON LLC
By:
---------------------------------------------------------
Name:
Title:
Acting on behalf of itself
and as the Representative
of the several Underwriters
SCHEDULE I
PRINCIPAL AMOUNT OF CLASS A1
UNDERWRITER NOTES TO BE PURCHASED
Credit Suisse First Boston LLC $
Deutsche Bank Securities Inc. $
Citigroup Global Markets Inc. $
SG Americas Securities LLC $
Total........................ $
SCHEDULE A
SMHL GLOBAL FUND NO. 7
Form of Certificates pursuant to section 6(c) of the Underwriting Agreement
[OFFICER'S CERTIFICATE OF THE ISSUER TRUSTEE]
Date: ____________, 2004
Credit Suisse First Boston LLC
As Representative of the Underwriters
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
I, ________________, in my capacity as a __________________ of Perpetual
Trustees Australia Limited ("PTAL"), hereby certify that, to the best of my
knowledge after reasonable investigation:
(i) the representations and warranties of PTAL, in its capacity as
trustee of the SMHL Global Fund No. 7 (in such capacity, the
"Issuer Trustee"), in the Underwriting Agreement dated September
___, 2004 (the "Underwriting Agreement"), among Credit Suisse
First Boston LLC, as representative ("Representative") of the
several Underwriters listed in Schedule I to that agreement (the
"Underwriters"), ME Portfolio Management Limited, the Issuer
Trustee and Members Equity Pty Limited, are true and correct; and
(ii) the Issuer Trustee has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under the
Underwriting Agreement.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Underwriting Agreement.
By:
-------------------------------
Name:
Title:
[OFFICER'S CERTIFICATE OF THE MANAGER]
Date: ____________, 2004
Credit Suisse First Boston LLC
As Representative of the Underwriters
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
I, ________________, in my capacity as a __________________ of ME Portfolio
Management Limited (the "Manager"), hereby certify that, to the best of my
knowledge after reasonable investigation:
(i) the representations and warranties of the Manager in the
Underwriting Agreement dated September ___, 2004 (the
"Underwriting Agreement"), among Credit Suisse First Boston LLC,
as representative ("Representative") of the several Underwriters
listed in Schedule I to that agreement (the "Underwriters"), the
Manager, Perpetual Trustees Australia Limited, in its capacity as
trustee of the SMHL Global Fund No. 7, and Members Equity Pty
Limited, are true and correct;
(ii) the Manager has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under the
Underwriting Agreement;
(iii) no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; and
(iv) subsequent to the date of the most recent financial statements
supplied by the Members Equity Parties to the Underwriters or the
Representative on behalf of the Underwriters, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial
or other), business, properties or results of operations of the
Manager and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Underwriting Agreement.
By:
--------------------------------
Name:
Title:
[OFFICER'S CERTIFICATE OF MEMBERS EQUITY]
Date: ____________, 2004
Credit Suisse First Boston LLC
As Representative of the Underwriters
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
I, ________________, in my capacity as a __________________ of Members Equity
Pty Limited ("Members Equity"), hereby certify that, to the best of my knowledge
after reasonable investigation:
(i) the representations and warranties of Members Equity in the
Underwriting Agreement dated September ___, 2004 (the
"Underwriting Agreement"), among Credit Suisse First Boston LLC,
as representative ("Representative") of the several Underwriters
listed in Schedule I to that agreement (the "Underwriters"), ME
Portfolio Management Limited, Perpetual Trustees Australia
Limited, in its capacity as trustee of the SMHL Global Fund No.
7, and Members Equity, are true and correct;
(ii) Members Equity has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under the
Underwriting Agreement; and
(iii) subsequent to the date of the most recent financial statements
supplied by the Members Equity Parties to the Underwriters or the
Representative on behalf of the Underwriters, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial
or other), business, properties or results of operations of the
Manager and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Underwriting Agreement.
By:
-------------------------------
Name:
Title:
Exhibit A
Opinion of Freehills
[TO BE ATTACHED]
Exhibit B
Opinion of Greenwood & Freehills Pty Limited
[TO BE ATTACHED]
Exhibit C
U.S. federal tax opinion of Mayer, Brown, Xxxx & Maw LLP
[TO BE ATTACHED]
Exhibit D
Opinion of Xxxxx Xxxxx York
[TO BE ATTACHED]
Exhibit E
Opinion of Mallesons Xxxxxxx Xxxxxx
[TO BE ATTACHED]
Exhibit F
Opinion of Counsel to
the U.S. Currency Swap Provider
[TO BE ATTACHED]
Exhibit G
Opinion of Counsel to
the Euro Currency Swap Provider
[TO BE ATTACHED]
Exhibit H
Ernst & Young Agreed Upon Procedures Letter
[TO BE ATTACHED]
APPENDIX I
A. LIST OF ASSOCIATES OF THE MEMBERS EQUITY PARTIES
Members Equity Pty Limited
ME Portfolio Management Limited
Accountants Superannuation Fund
Cogent Nominees Pty Limited
ACF Australian Government Employees Superannuation Trust
Amcor Superannuation Fund Pty Ltd
Australian Meat Industry Superannuation Trust
Australian Preservation Fund Pty Ltd
Australian Primary Superannuation Fund
Australian Retirement Fund
Asset Limited
Allied Union Superannuation Trust (Qld)
Austsafe Pty Ltd
AXA Australia Staff Superannuation Plan
City Super Pty Ltd
Bus Industry Superannuation Scheme
Bosch Benefits Plan
XXXX (Queensland) Pty Limited Pooled Superannaution Trust
Construction and Building Union Superannuation Fund
CARE Superannuation Plan Pty Ltd
Catholic Church Staff Superannuation Fund (SA)
Xxxxxxxx Superannuation Plan
Coal Industry Superannuation Fund
Clemenger Superannuation Plan
Xxxxxx Superannuation Pty Ltd
Club Plus Superannuation Pty Ltd
Club Super
Concept One Superannuation Plan
Superannuation Plan for Electrical Contractors
City of Perth Superannuation Fund
Catholic Superannuation Fund
CSL Superannuation Plan Pty Ltd
Catholic Superannuation and Retirement Fund
Catholic Schools Superannuation Fund (WA)
Commonwealth Superannuation Scheme (CSS) /
Public Sector Superannuation Scheme (PSS)
CUE Superannuation Plan Pty Limited
Equip Super
Finsuper Ltd
Furniture Industry Retirement and Superannuation Trust
Food Industry Superannuation Trust
Xxxxxx Industries Retirement Fund
WA Government Employees Superannuation Board
Golf Superannuation Ltd
Glaxo Wellcome Superannuation Fund
Health Employees Superannuation Trust Australia
Hort Super Pty Limited
Host Plus Superannuation Fund
IFS Xxxxxxx Management Services Pty. Ltd
IFST Pty. Ltd.
Independent Schools Super Pty Ltd
Industry Administration Services Pty. Limited
Industry Fund Services Pty. Limited
Industry Funds Credit Control Pty. Ltd;
Industry Funds Financial Services Pty. Ltd
Industry Funds Investments
The Industry Superannuation Fund Pty Limited
Intrust Super
JUST Pty Ltd
Local Authorities Superannuation Fund
National Nominees Limited ACF Legal Industry Superannuation Scheme
SA Local Government Superannuation Scheme
Labour Union Co-operative Retirement Fund
Managed ARF
Meat Industry Employees Superannuation Fund
Master Superannuation Fund
MTAA Superannuation Fund
New South Wales Electrical Superannuation Scheme
Non-Government Schools Superannuation Fund
NT Government and Public Authorities Employees Superannuation Scheme
Pulp & Paper Workers' Superannuation Fund
Printing Industry Superannuation Fund
QANTAS Super
Queensland Coal & Oil Shale Mining Industry Superannuation Ltd
Queensland Independent Education & Care Superannuation Trust
Quadrant Superannuation Scheme
REI Superannuation Fund
Recruitment Services Superannuation Fund
Stevedoring Employees Retirement Fund
Transport Investment Fund
Sisters of Mercy Staff Superannuation Pty Ltd
Seafarers Retirement Fund
Statewide Superannuation Trust
Superpartners Pty. Limited
Superannuation Plan for Electrical Contractors (QLD)
Superannuation Trust of Australia
Sunsuper
Tasplan Super
Telstra Superannuation Scheme
Timber Industry Superannuation Scheme
TWU Superannuation Fund
Uniting Church Superannuation Plan Pty Ltd
TESS Uni-Super
VicSuper Pty Ltd
WA Fire Brigade Superannuation Board
WA Local Government Superannuation Plan
Westscheme Pty Ltd
Western Power Superannuation Fund
Military Super & Benefits Scheme
Retirement Benefits Fund Board
Sugar Manufactures of Australia Retirement Trust
Nationwide Superannuation Fund
AV Super Pty Ltd
Water Corporation Superannuation Plan
