U.S. $[ ]
ME PORTFOLIO MANAGEMENT LIMITED
SMHL GLOBAL FUND NO. 8
U.S. $[ ] Class A1 Mortgage Backed Floating Rate Notes,
UNDERWRITING AGREEMENT
----------------------
September [_], 2005
Deutsche Bank Securities Inc.
As Representative of the Several Underwriters,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. Perpetual Trustees Australia Limited (ABN 86 ▇▇▇ ▇▇▇ ▇▇▇), a
corporation duly incorporated and existing under the Corporations ▇▇▇ ▇▇▇▇ (Cth)
of the Commonwealth of Australia ("PTAL"), in its capacity as trustee of the
SMHL Global Fund No. 8 (the "FUND", and PTAL in that capacity being the "ISSUER
TRUSTEE" acting at the direction of ME Portfolio Management Limited (ABN 79 005
964 134), as manager of the Fund (the "MANAGER") proposes to sell to the several
Underwriters listed in Schedule I hereto (the "UNDERWRITERS"), for whom Deutsche
Bank Securities Inc. ("DBSI") is acting as representative (the
"REPRESENTATIVE"), U.S.$[ ] 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)[ ] 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$[ ] 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 Bank Pty Limited (formerly known as
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, after the close of business August 30, 2005 (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 July 27, 2005 (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 [ ], 2005 (the
"SUPPLEMENTARY BOND TERMS NOTICE CLASS A NOTES AND CLASS B NOTES") between the
Issuer Trustee, the Security 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 [ ], 2005 (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 I 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, 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 PTAL or the Fund, except as disclosed in the
Prospectus, which is material in the context of performing the Issuer
2
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 validly existing under the
Corporations ▇▇▇ ▇▇▇▇ (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 jurisdiction in
which it conducts any business, so as to require such qualification, other
than where the failure to be so qualified or in good standing would not
have a material adverse effect on the transactions contemplated herein or
in the Basic Documents.
(c) 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 will have been delivered and paid for pursuant to this
Agreement (and duly authenticated by the Principal Paying Agent), 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 and this Agreement will constitute a
legal, valid and binding obligation of the Issuer Trustee, enforceable
against it in accordance with their 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 the Issuer
Trustee 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 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. 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 any 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 ad valorem 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 nor 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) the assets of the Fund.
(b) Each Members Equity Party is a corporation duly incorporated and
validly existing under the Corporations ▇▇▇ ▇▇▇▇ (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 this Agreement and 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 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 and this Agreement will
constitute a legal, valid and binding obligation of each such Members
Equity Party, enforceable against each such Members Equity Party in
accordance with their 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
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 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. 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 any 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) Neither Members Equity Party has taken any corporate action nor (to the
best of its knowledge and belief having made reasonable inquiry and
investigation) have other steps
7
been taken nor 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 [ ], 2005 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 nor either of the Members Equity Parties is an
open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under Section 3
of the United States Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"); and neither the Fund nor either of the Members
Equity Parties is 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, neither will 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.
333-127004), 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) of the rules and regulations of the Commission
under the Securities Act), 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 Statement
and any amendment thereto and as of the date of the Prospectus and any
8
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 [ ]% of the principal amount of the Class A1
Notes (which aggregate amounts shall be net of the commissions payable to the
Underwriters) the principal amount of the Class A1 Notes set forth opposite the
respective names of the Underwriters in Schedule I hereto. In addition, the
Underwriters shall severally and not jointly be responsible for certain
out-of-pocket expenses incurred by the Members Equity Parties in connection with
the
9
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 ("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
Societe Generale Australia Branch (the "U.S.$ CURRENCY SWAP PROVIDER") at the
office of Mayer, Brown, ▇▇▇▇ & Maw LLP, [1675 ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇] not later than 10:00 A.M., New York City time, on [ ], 2005 or at such
other time not later than seven full business days thereafter as DBSI 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 inspection 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
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, the Manager becomes aware of the occurrence
of any event as a result of which the
10
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 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) Prior to the Closing Date, 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 exchange, and (iv) from time to time
such other information concerning the Fund or the Manager as the
Representative may reasonably request.
11
(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 nor Members Equity will offer, sell, contract to sell,
pledge or otherwise dispose of, 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
12
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 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
Members Equity Parties and the Issuer Trustee of their obligations hereunder and
to the following additional conditions precedent:
13
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, not later than
5:00 P.M., New York City time, on the date hereof 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 Australia authorities; or (vi) any outbreak or escalation of major
hostilities or act of terrorism involving the United States, the United
Kingdom or Australia, any 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
14
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 the 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 the 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 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
15
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, ▇▇▇▇ & 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, a copy of which is attached
as Exhibit C hereto, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters.
(h) Mayer, Brown, ▇▇▇▇ & 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 and confirming that,
as of the date of such opinion, the statements contained in the Prospectus
under the caption "United States Federal Income Tax Matters", to the extent
that they constitute matters of law or legal conclusions relating to the
federal laws of the United States, have been reviewed by such counsel and
are correct in all material respects with regard to those consequences or
matters that are discussed therein.
(i) ▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 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.
(k) Counsel to the U.S.$ 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 Societe Generale Australia Branch (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) ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
16
(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 ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. ("STANDARD AND POOR'S"), "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc.
("MOODY'S") and "AAA" by Fitch Ratings Group ("FITCH" and together with
Standard and Poor's and Moody'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) Prior to the Closing Date, the Manager shall have submitted an
application 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 [ ], 2005, among the Issuer Trustee, the
Manager and Members Equity and the Underwriters.
(u) The U.S.$ Swap Provider, the Euro Currency Swap Provider, 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
17
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.$ 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.
(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
18
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 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
19
as the total net proceeds from the offering (before deducting expenses) received
by the Members Equity Parties and the Issuer Trustee 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 either 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
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.
20
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 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:
21
(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
invite 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 ▇▇▇ ▇▇▇▇ (Cth) and the Corporations Regulations made
under the Corporations ▇▇▇ ▇▇▇▇ (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 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) represents and 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
22
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 severally (but not jointly) represents and agrees that
it must offer the Class A1 Notes for which it subscribes for sale within 30 days
of the issuance 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 publicly by the
Underwriter in electronic form or in another form that is used by
financial markets for dealing in instruments similar to the Class
A1 Notes 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 must be: (i) carrying on a
business of providing finance, or investing or dealing in
securities, in the course of operating in financial markets; and
(ii) neither known nor suspected to be an associate of any of the
others (within the meaning of section 128F(9) 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) If requested in writing, 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, 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) represents and agrees
that:
(1) 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 ▇▇▇ ▇▇▇▇, 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
(2) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to any Class
A1 Notes in, from or otherwise involving the United Kingdom.
23
(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, a subsequent 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) represents and agrees
that:
(1) it has not offered or sold and will not offer or sell any Notes in
Hong Kong, by means of any document, other than (a) to "professional
investors" as defined in the Securities and Futures Ordinance (Cap.
571) of Hong Kong (the "SFO") and any rules made under the SFO; or (b)
in other circumstances which do not result in the document being a
"prospectus" as defined in the Companies Ordinance (Cap. 32) of Hong
Kong (the "CO") or which do not constitute an offer to the public
within the meaning of the CO; and
(2) no person may issue, distribute or circulate, any advertisement,
invitation or document relating to Class A1 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 Class A1 Notes which are or are intended to be
disposed of only to persons outside Hong Kong or only to "professional
investors" as defined in the SFO and any rules made under the SFO.
(i) Each Underwriter (severally and not jointly) represents and agrees
that:
(1) it has not offered or sold and will not offer or sell any Class A1
Notes in the Republic of Ireland, except in conformity with the
provisions of the Prospectus (Directive 2003/71/EC) Regulations 2005
(the Prospectus Regulations) and the provisions of the Irish Companies
Acts 1963-2005;
(2) it has not and will not offer or sell any Class A1 Notes other
than in compliance with the provisions of the Irish Market Abuse
(Directive 2003/6/EU) Regulations 2005; and
(3) it will not underwrite the issuance of or place 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,
24
23 (including any advertising restrictions made thereunder) and
Section 37 (including any codes of conduct issued thereunder) the
provisions of the Irish Investor Compensation Act, 1998, including,
without limitation, Section 21.
(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 ▇▇/▇▇▇▇, ▇▇ ▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇) 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.
(k) Each Underwriter (severally and not jointly) agrees that the Class A1
Notes are not to be offered or sold in the Republic of Italy.
(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.
(m) Each Underwriter (severally and not jointly) agrees that it will not
re-transfer, directly or indirectly, the Class A1 notes to the public in France,
other than in compliance with articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8
of the French Monetary Code (Code Monetaire et Financier).
(n) Each Underwriter (severally and not jointly) agrees that the Class A1
notes may not be publicly offered for sale, sold or marketed in Belgium by means
of a public offer under Belgian law. The offering of the Class A1 notes to the
public in Belgium within the meaning of the Belgian Act of 22 April 2003 and the
Royal Decree of 7 July 1999 has not been authorized. Accordingly, the Class A1
notes may not be offered or sold or marketed to persons in Belgium other than in
circumstances which do not constitute an offer of the Class A1 notes to the
public in Belgium.
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
25
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.
(b) Each Underwriter and each of the Members Equity Parties may not ▇▇▇ 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.$ 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 Class A 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 no 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 subsection (c) of this Section 11.
(f) The Issuer Trustee is not obligated to do or refrain from doing
anything under this Agreement (including incurring any liability) unless
the Issuer Trustee's liability is limited in the same manner as set out in
subsections (a) and (c) of this Section 11.
26
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 transactions contemplated hereby. Each of the
Members Equity Parties and the Issuer Trustee irrevocably appoints CT
Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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
27
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 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 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [Legal];
if sent to the Manager will be mailed, delivered or telegraphed and confirmed to
the Manager at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
(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 ▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ (Facsimile No. 612-9221 7870), Attention: Manager Securitsation; and
if sent to Members Equity, mailed, delivered or telegraphed and confirmed to
Members Equity at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ (Facsimile No. 613-9605 6200), Attention: ▇▇▇▇ ▇▇▇▇▇▇; 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. Absence of Fiduciary Relationship. Each of the Manager and the Issuer
Trustee acknowledges and agrees that each Underwriter in providing investment
banking services to the Manager and Issuer Trustee in connection with the
issuance of the Class A1 Notes, including in acting pursuant to the terms of
this Agreement, has acted and is acting as an independent contractor and not as
a fiduciary and the Manager and the Issuer Trustee do not intend such
28
Underwriters to act in any capacity other than as independent contractors,
including as a fiduciary or in any other position of higher trust.
21. 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.
22. 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.
29
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to the undersigned the enclosed
counterpart hereof, whereupon this Agreement will become a binding agreement by
and among the parties listed below and the Underwriters in accordance with its
terms.
Very truly yours,
ME PORTFOLIO MANAGEMENT LIMITED
By:
---------------------------
Name:
Title:
PERPETUAL TRUSTEES AUSTRALIA
LIMITED
By:
---------------------------
Name:
Title:
MEMBERS EQUITY BANK PTY LIMITED
By:
---------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
day first above written:
DEUTSCHE BANK SECURITIES INC.
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
----------- ---------------------
Deutsche Bank Securities Inc. $[ ]
SG Americas Securities, LLC $[ ]
Credit Suisse First Boston LLC $[ ]
Citigroup Global Markets Inc. $[ ]
Total........................... $[ ]
SCHEDULE A
SMHL GLOBAL FUND NO. 8
Form of Certificates pursuant to Section 6(c) of the Underwriting Agreement
[OFFICER'S CERTIFICATE OF THE ISSUER TRUSTEE]
Date: ____________, 2005
Deutsche Bank Securities Inc.
As Representative of the Underwriters
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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. 8 (in such capacity, the "Issuer
Trustee"), in the Underwriting Agreement dated September [ ], 2005
(the "Underwriting Agreement"), among Deutsche Bank Securities Inc.,
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
Bank 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: ____________, 2005
Deutsche Bank Securities Inc.
As Representative of the Underwriters
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 [ ], 2005 (the "Underwriting
Agreement"), among Deutsche Bank Securities Inc., 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. 8, and Members Equity Bank 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: ____________, 2005
Deutsche Bank Securities Inc.
As Representative of the Underwriters
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
I, ________________, in my capacity as a __________________ of Members Equity
Bank 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[ ], 2005 (the "Underwriting
Agreement"), among Deutsche Bank Securities Inc., 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. 8, 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 Greenwoods & Freehills Pty Limited
[TO BE ATTACHED]
Exhibit C
---------
Opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP
[TO BE ATTACHED]
Exhibit D
---------
Opinion of ▇▇▇▇▇ ▇▇▇▇▇ York
[TO BE ATTACHED]
Exhibit E
---------
Opinion of Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
[TO BE ATTACHED]
Exhibit F
---------
Opinion of Counsel to
the U.S.$ 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 Bank 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
▇▇▇▇ (Queensland) Pty Limited Pooled Superannaution Trust
Construction and Building Union Superannuation Fund
CARE Superannuation Plan Pty Ltd
Catholic Church Staff Superannuation Fund (SA)
▇▇▇▇▇▇▇▇ Superannuation Plan
Coal Industry Superannuation Fund
Clemenger Superannuation Plan
▇▇▇▇▇▇ Superannuation Pty Ltd
Club Plus Superannuation Pty Ltd
Club Super
Concept One Superannuation Plan
Superannuation Plan for Electrical Contractors (QLD)
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
WA Government Employees Superannuation Board
Glaxo Wellcome Superannuation Fund
Health Employees Superannuation Trust Australia
Host Plus Superannuation Fund
IFS ▇▇▇▇▇▇▇ Management Services Pty. Ltd
Industry Funds Management Pty Ltd (Nominess 2) (formerly 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
National Nominees Limited ANF Vision Super Pty Ltd
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
Retirement Benefits Fund Board
Nationwide Superannuation Fund
AV Super Pty Ltd
Water Corporation Superannuation Plan
[Remainder of Page Intentionally Left Blank]
B-1. LIST OF ASSOCIATES OF THE ISSUER TRUSTEE
ASX Perpetual Registrars Limited
Australian Trustees Limited
Commonwealth Trustees Pty Limited
Investor Marketplace Limited
Perpetrust Nominees Pty Ltd
Perpetual Asset Management Ltd
Perpetual Assets Pty Ltd
Perpetual Australia Pty Limited
Perpetual Custodians Ltd
Perpetual Custodian Nominees Pty Limited
Perpetual Executors Nominees Ltd
Perpetual Fund Services Limited
Perpetual Investment Management Limited
Perpetual ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited
Perpetual Nominees Limited
Perpetual Nominees (Canberra) Limited
Perpetual Legal Services Pty Ltd.
Perpetual Service Network Pty Limited
Perpetual Services Pty Ltd
Perpetual Superannuation Limited
Perpetual Trust Services Limited
Perpetual Trustee Company (Canberra) Limited
Perpetual Trustee Company Limited
Perpetual Trustees Consolidated Limited
Perpetual Trustees Nominees Limited
Perpetual Trustees Queensland Ltd
Perpetual Trustees S A Limited
Perpetual Trustees Victoria Limited
Perpetual Trustees W.A. Ltd
PT Limited
Queensland Trustees Pty Limited
Terrace Guardians Ltd
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Finance Pty Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Partnership Pty Limited
B-2. FORMER AXA COMPANIES (INCLUDED AS ASSOCIATES)
Perpetual Trustees Consolidated Limited
Perpetual Nominees (Canberra) Limited
Perpetual Custodian Nominees Pty Ltd
[Remainder of Page Intentionally Left Blank]
B-3. OFFSHORE COMPANY (INCLUDED AS ASSOCIATES)
P.I. Investment Management Limited (Incorporation No. 391261)
