U.S. $[________]
ME PORTFOLIO MANAGEMENT LIMITED
SMHL GLOBAL FUND NO. [__]
U.S. $[_______] Class A1 Mortgage Backed Floating Rate Notes,
FORM OF UNDERWRITING AGREEMENT
------------------------------
[------]
[---------]
As Representative of the Several Underwriters,
[---------]
[---------]
Dear Sirs:
1. Introductory. Perpetual Limited (ABN 86 000 000 000), a corporation duly
incorporated and existing under the Corporations Xxx 0000 (Cth) of the
Commonwealth of Australia ("PERPETUAL"), in its capacity as trustee of the SMHL
Global Fund No. [_] (the "FUND", and Perpetual in that capacity being the
"ISSUER TRUSTEE" acting at the direction of ME Portfolio Management Limited (ABN
79 005 964 134), as manager of the Fund (the "MANAGER") proposes to sell to the
several Underwriters listed in Schedule I hereto (the "UNDERWRITERS"), for whom
[_________] ("[____]") is acting as representative (the "REPRESENTATIVE"),
U.S.$[______] 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
OFFERED NOTES"), A$[______] principal amount of Class A3 Mortgage Backed
Floating Rate Notes (the "CLASS A3 NOTES" and, together with the Class A Offered
Notes, the "CLASS A Notes") and A$[______] 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 Underwriting Agreement (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. [_] (the
"ORIGINATION FUND"), including all monies at any time paid or payable thereon or
in respect thereof, after the close of business [______] (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 Perpetual 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 [______] (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 [______] (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, will set forth the terms and conditions of the Notes.
The Note Trust Deed, to be dated on or about [______] (the "NOTE TRUST DEED") by
and among the Issuer Trustee, the Manager, [_________] (the "IRISH PAYING
AGENT"), the Security Trustee and [_________] (the "NOTE TRUSTEE") provides for
the issuance and registration of the Class A Offered 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".
At or prior to the time when sales of the Class A1 Notes were first made
to investors by the several Underwriters, which was approximately [________]
[A.M.] [P.M.] on [_______] (the "TIME OF SALE"), the Manager had prepared and
filed with the Commission in accordance with the provisions of the Securities
Act the following information (collectively, the "TIME OF SALE INFORMATION"):
the preliminary prospectus supplement dated [_______] relating to the Notes and
containing all information to be included in the Final Prospectus (as defined
below) other than final pricing spreads and certain pricing information and
accompanied by the base prospectus dated [_______] (together, along with
information referred to under the caption "Description of the Pool of Housing
Loans--Static Pool Information" in such preliminary prospectus supplement
regardless of whether it is deemed a part of the Registration Statement (as
defined below) or Final Prospectus, the "PRELIMINARY PROSPECTUS"). If,
subsequent to the Time of Sale and prior to the Closing Date, the Manager wishes
to convey additional or changed information in order to make the Time of Sale
Information, in the light of the circumstances under which statements in the
Time of Sale Information were made, not misleading, and as a result investors in
the Class A1 Notes elect to terminate their old "CONTRACTS OF SALE" (within the
meaning of Rule 159 under the Securities Act) for any Class A1 Notes and enter
into new Contracts of Sale with the Underwriters, then "TIME OF SALE
INFORMATION" will refer to the information conveyed to investors at the time of
entry into the first such new Contract of Sale, in an amended Preliminary
Prospectus approved by the Manager and the Representative that corrects such
material misstatements or omissions (a "CORRECTED PROSPECTUS") and "TIME OF
SALE" will refer to the time and date on which the first such new Contract of
Sale was entered into.
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
2
Origination and Management Agreement, the Notes, the Security Trust Deed, the
Note Trust Deed, the Fixed-Floating Rate Swap, the Currency Swap(s), 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 Perpetual or the Fund, except as
disclosed in the Prospectus, which is material in the context of the
Issuer Trustee's performance of its obligations and duties under the Class
A1 Notes and each Basic Document to which it is or is to be a party.
(b) Perpetual is a corporation duly incorporated and validly existing
under the Corporations Xxx 0000 (Cth) of the Commonwealth of Australia
with the power and authority (corporate and otherwise) to conduct its
business as described in the Prospectus, to issue the Class A1 Notes and
to enter into and perform the Issuer Trustee's obligations under this
Agreement and the Basic Documents, and Perpetual 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
Perpetual.
(d) The Class A1 Notes have been duly authorized by Perpetual, 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.
3
(e) The execution, delivery and performance by Perpetual 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 Perpetual, 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 its terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement
of creditors' rights generally and to general equitable principles.
(f) Perpetual is not, nor with the giving of notice or lapse of time or
both 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 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 of the Issuer
Trustee's property or assets is subject, (B) result in any violation of
the provisions of Perpetual'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
4
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) Perpetual 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.
(k) Subject to compliance with Section 128FA 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 or circumstances arisen which, had the Class A1
Notes already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other
requirement) obligate it to retire as Issuer Trustee or constitute a
Trustee's Default (as defined in the Master Trust Deed).
5
II. The Members Equity Parties, jointly and severally, represent and warrant to
each Underwriter and the Issuer Trustee that:
(a) The Time of Sale Information, at the Time of Sale, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Manager makes no representation and warranty
with respect to any statements or omissions made in reliance upon and in
conformity with the Underwriter Information (as defined in the last
sentence of Section 7(b)).
(b) The Class A1 Notes are "asset backed securities" within the meaning of
the Securities Act, and all conditions requisite to the use of Form S-3
and the Prospectus under the Securities Act for the offering of the Class
A1 Notes have been satisfied.
(c) 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.
(d) Each Members Equity Party is a corporation duly incorporated and
validly existing under the Corporations Xxx 0000 (Cth) of the Commonwealth
of Australia; each Members Equity Party has the power and authority
(corporate and otherwise) to own its properties and conduct its business
as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Basic Documents to which it is a
party and carry out the transactions contemplated by 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.
(e) This Agreement has been duly authorized, executed and delivered by
each of the Members Equity Parties.
(f) 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 its terms,
6
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.
(g) 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.
(h) 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
7
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.
(i) There are no statutes, regulations, contracts or other documents that
are required to be filed with the Commission as an exhibit to the
Registration Statement, or required to be described in the Registration
Statement or the Prospectus, which have not been filed with the Commission
or described as required.
(j) 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.
(k) Deloitte and Touche LLP 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.
(l) 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.
(m) 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 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.
(n) Since [_______] 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.
8
(o) 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 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) A registration statement on Form S-3 (No. 333-[_________]), including
a prospectus, relating to the Class A1 Notes has been filed with the
Commission and has become effective and is still effective as of the date
hereof. 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. A Preliminary Prospectus was filed with the Commission
pursuant to Rule 424(b) ("RULE 424(b)") of the Securities Act and the
rules and regulations thereunder (the "RULES AND REGULATIONS"). A final
prospectus supplement dated the date hereof, containing the same
information as the Preliminary Prospectus, but including the final pricing
spreads and certain pricing information and accompanied by the base
prospectus dated [_______] (together, along with information referred to
under the caption "Description of the Pool of Housing Loans--Static Pool
Information" in such final prospectus supplement regardless of whether it
is deemed a part of the Registration Statement or final prospectus, the
"FINAL PROSPECTUS", and together with the Preliminary Prospectus and any
Corrected Prospectus, the "PROSPECTUS") will be filed with the Commission
pursuant to Rule 424(b) within the time period required thereby.
"REGISTRATION STATEMENT" as of any time means the Registration Statement
in the form then filed with the Commission, including any amendment
thereto, any document incorporated by reference therein and any
information in a prospectus or prospectus supplement deemed or
retroactively deemed to be a part thereof pursuant to Rule 430B ("RULE
430B") or 430C ("RULE 430C") under the Securities Act that has not been
superseded or modified. "REGISTRATION STATEMENT" without reference to a
time means the Registration Statement as of the time of the first Time of
Sale for the Class A1 Notes, which time shall be considered the "EFFECTIVE
DATE" of the Registration Statement relating to the Class A1 Notes. For
purposes of this definition, information contained in a form of prospectus
or prospectus supplement that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430B shall be considered to be
included in the Registration Statement as of the time specified in Rule
430B. Except as set forth on Schedule II hereof, no "issuer free writing
prospectus," as defined in Rule 433 of the Rules and Regulations, relating
to the Class A1 Notes has been or will be used by or on behalf of the
Manager.
(b) At the time the Registration Statement initially became effective, at
the time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether by post-effective
amendment, incorporated report or form of prospectus) and on the Effective
Date relating to the Class A1 Notes, the Registration Statement conformed
and will conform in all respects to the requirements of the Securities
Act, the
9
Trust Indenture Act of 1939 ("TRUST INDENTURE ACT") and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not and
will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. As of the date hereof, each of the
Registration Statement and the Prospectus conforms, and as of the Closing
Date each of the Registration Statement and the Prospectus will conform,
in all respects to the requirements of the Securities Act, the Trust
Indenture Act and the Rules and Regulations, and neither of such documents
will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based upon
Underwriter Information, as defined in the last sentence of Section 7(b),
furnished to the Manager by any Underwriter through the Representative
specifically for use therein.
(c) As of the Time of Sale, neither the Preliminary Prospectus nor any
documents listed or disclosures identified on Schedule II attached hereto,
all considered together, included any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from any prospectus included in the
Registration Statement based upon Underwriter Information, as defined in
the last sentence of Section 7(b), furnished to the Manager by any
Underwriter through the Representative specifically for use therein.
(d) The documents incorporated by reference in the Registration Statement
and the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations thereunder; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the Rules and Regulations.
(e) The Manager is not, and on the date on which the first bona fide offer
of the Class A1 Notes is made, will not be an "ineligible issuer" as
defined in Rule 405 under the Securities Act. The Manager has caused the
Preliminary Prospectus to be filed with the Commission on [________].
(f) 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.
(g) 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).
10
(h) As of the Closing Date, the Issuer Trustee holds each related Housing
Loan as trustee of the Fund.
(i) Subject to Section 128FA 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 100% of the principal amount of the Class A1
Notes the principal amount of the Class A1 Notes set forth opposite the
respective names of the Underwriters in Schedule I hereto.
In consideration of the agreement by the Underwriters to subscribe and pay
for the Class A1 Notes, the Manager agrees to cause the Origination Fund, at the
direction of the Manager, to pay the commissions set forth opposite the
respective names of the Underwriters in Schedule I hereto.
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 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 book-entry 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 [_______] (the "U.S.$ CURRENCY SWAP PROVIDER") at the office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 not later than 10:00 A.M., New York City time, on [_______] or at such
other time not later than seven full business days thereafter as [____] 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
11
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 shall file the Final Prospectus with the Commission
pursuant to and in accordance with subparagraph (2) (or, if applicable and
if consented to by the Representative, subparagraph (5)) of Rule 424(b) of
the Securities Act no later than the second business day following the
date it is first used. The Manager will advise the Representative promptly
of any such filing pursuant to Rule 424(b).
(b) The Manager shall file with the Commission the final pricing
information, which may be posted on a Bloomberg screen or distributed via
Bloomberg, as a free writing prospectus.
(c) The Manager will advise the Representative promptly of any proposal to
amend or supplement the Registration Statement as filed or any Prospectus
and, subject to Section 5.I(d), 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.
(d) 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 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.
(e) [Reserved.]
12
(f) The Manager will furnish to the Representative copies of each
Registration Statement (three (3) of which will be signed and will include
all exhibits), the Prospectus and all amendments and supplements to such
documents, in each case in such reasonable quantities as the
Representative requests. The Final Prospectus and any amendments or
supplements thereto, shall be so furnished on or prior to 3:00 P.M., New
York time, on or prior to, the later to occur of, the second business day
following the execution and delivery of this Agreement or the date such
Final Prospectus is first used, but in no event later than the day before
the Closing Date. 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.
(g) 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.
(h) So long as the Class A1 Notes are outstanding, the Manager will, upon
request, furnish to the Representative (i) copies of any certificate, the
annual statements of compliance and any other information or reports with
respect to the Fund filed by the Manager with the Commission or 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.
(i) 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.
(j) To the extent 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.
(k) 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.
(l) 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(p) below.
13
(m) 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 issuers' counsel, but not underwriters' 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 and for expenses incurred in distributing
the Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(n) 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.
(o) 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 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 supplement of 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.
14
(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(p) 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.
III. Each of the several Underwriters, for itself only, represents, warrants and
agrees with the Members Equity Parties as follows:
Other than the Preliminary Prospectus, the Final Prospectus and the
information set forth in Schedule II hereof, such Underwriter has not
conveyed and will not convey, without the Manager's prior written
approval, to any potential investor in the Class A1 Notes (each a
"POTENTIAL INVESTOR") any other written material of any kind relating to
any "issuer information" as defined in Rule 433(h)(2) under the Securities
Act, or the Class A1 Notes that would constitute (i) a "prospectus" or a
"free writing prospectus," each as defined in the Securities Act and Rule
405 thereunder, as applicable, including, but not limited to any materials
constituting a "road show" presentation to Potential Investors (other than
use or transmission of such written or electronic materials as part of an
actual road show where representatives from the Trust Manager are
participants) or (ii) "ABS informational and computational materials"
within the meaning of Item 1101(a) of Regulation AB promulgated by the
Commission under the Securities Act and the Exchange Act (collectively,
"PROHIBITED MATERIALS"); provided, however, that, in addition to the
foregoing, such Underwriter may convey to one or more of its Potential
Investors (i) information permitted in Rule 134 under the Securities Act
or previously included in the Preliminary Prospectus and (ii) a free
writing prospectus, as defined in Rule 405 under the Securities Act,
containing only: (a) a column or other entry showing the status of the
subscriptions for the Class A1 Notes (both for the issuance as a whole and
for such Underwriter's specific retention) and confirmation information,
(b) expected settlement date and expected and actual pricing parameters of
the Class A1 Notes, (c) information relating to the class, size, rating,
price, CUSIP, coupon, yield, spread, benchmark, status, expected final
payment date, trade date, payment window and weighted average life of the
Class A1 Notes, (d) expected maturities of Class A1 Notes and (e) the
eligibility of the Class A1 Notes to be purchased by ERISA plans, provided
that, in the case of clauses (i) and (ii), such information is posted on a
Bloomberg screen or distributed via Bloomberg and, in the case of clause
(ii), other than the final pricing
15
terms, which will be posted on a Bloomberg screen or distributed via
Bloomberg, such free writing prospectus shall not contain information that
would require the issuer to file such free writing prospectus pursuant to
Rule 433 under the Securities Act.
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:
(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 any amendment or
supplement thereto) shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) within the applicable time period
prescribed for such filings 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 provider 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 provider 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
16
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
provider 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 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) Greenwoods & 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 Underwriters shall have received two letters, one dated the date
hereof and one dated the Closing Date, each in form and substance
satisfactory to the Representative and their counsel, of Deloitte and
Touche LLP confirming that they are independent public accountants within
the standards established by the American Institute of Certified Public
17
Accountants and the meaning of the Securities Act and 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 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) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel for
the Members Equity Parties, 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-1 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) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States federal income
tax counsel for the Members Equity Parties, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative and their counsel and
confirming that, as of the date of such opinion, the statements contained
in the prospectus supplement of the Prospectus under the caption "Certain
United States Federal Income Tax Considerations", 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.
(i) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel for
the Members Equity Parties, shall have furnished to the Underwriters their
written 10b-5 negative assurance letter, dated the Closing Date, in form
and substance satisfactory to the Representative, a copy of which is
attached as Exhibit C-2 hereto, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
provide such letter;
18
(j) Xxxxx Xxxxx York, counsel for the Issuer Trustee, shall have furnished
to the Representative their written opinion, dated the Closing Date, in
form and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, a copy of which opinion
is attached hereto as Exhibit D.
(k) Mallesons Xxxxxxx Xxxxxx, counsel for the Note Trustee, shall have
furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters, a copy of
which is attached hereto as Exhibit E.
(l) Counsel to the U.S.$ Currency Swap Provider shall have furnished to
the Representative and the Members Equity Parties its written opinion in
form and substance satisfactory to the Representative, a copy of which
opinion will be attached hereto as Exhibit F.
(m) Counsel to [________] (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.
(n) XxXxx Xxxxxx LLP, special United States counsel to the Representative
and the Underwriters, shall have furnished to the Representative their
written opinion, dated the Closing Date, with respect to the Registration
Statement, the Prospectus and other related matters as the Representative
may reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters.
(o) 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.
(p) At the Closing Date, the Class A1 Notes shall have been rated "AAA" by
Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx Companies,
Inc. ("STANDARD & POOR'S"), "Aaa" by Xxxxx'x Investors Service, Inc.
("MOODY'S") and "AAA" by Fitch Ratings Group ("FITCH" and together with
Standard & Poor's and Moody's, the "RATING AGENCIES") as evidenced by
letters from the Rating Agencies.
(q) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(r) Each of the Class A2 Notes, Class A3 Notes and 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.
19
(s) 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.
(t) The Underwriters, through one or more of their respective affiliates,
have purchased the Class A2 Notes pursuant to the Subscription Agreement,
dated [_______], among the Issuer Trustee, the Manager and Members Equity
and the Underwriters.
(u) The U.S.$ Currency 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 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 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 and the Issuer Trustee for any
legal or other expenses reasonably incurred by such Underwriter or the Issuer
Trustee in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that neither of the Members Equity Parties will be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to either of the Members Equity Parties by:
(i) any Underwriter, through the Representative, specifically for use therein,
it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (b)
below, or (ii) the U.S.$ Currency Swap Provider and Euro Currency Swap Provider,
for inclusion in the prospectus supplement of the Prospectus under the heading
"Description of the Offered Notes--The Currency Swap--The Currency Swap
Provider."
20
(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 the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Manager by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by Members Equity, the Issuer
Trustee or the Manager in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the following information furnished on behalf of each
Underwriter: (i) in the prospectus supplement of the Final Prospectus, the
concession and discount percentages appearing in the [third] paragraph under the
caption "Plan of Distribution - Underwriting" and (ii) in the prospectus
supplement of the Prospectus, the information contained in the [sixth] and
[eighth] paragraphs under the caption "Plan of Distribution - Underwriting"
(collectively, the "UNDERWRITER INFORMATION"); 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.(c) 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
21
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 as the total net proceeds from the offering (before deducting
expenses) received by the Members Equity Parties and the Issuer Trustee bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Members Equity Parties and the Issuer Trustee or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). In addition, nothing in this
Section 7 shall require 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 supplement of the Prospectus under the
heading "Description of the Offered Notes--The Currency Swap[s]--The Currency
Swap Provider[s]" and information relating to the U.S.$ Currency Swap Provider
and the Euro Currency Swap Provider included or incorporated by reference in the
Prospectus. 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.
22
(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 that may otherwise be available to any indemnified
party at law or in equity.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Class A1 Notes hereunder on the Closing Date and the
aggregate principal amount of Class A1 Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Class A1 Notes that the Underwriters are obligated to
purchase on such Closing Date, the Representative may make arrangements
satisfactory to the Manager for the purchase of such Class A1 Notes by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Class A1 Notes that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate principal amount of Class A1 Notes with respect to which such
default or defaults occur exceeds 10% of the total principal amount of Class A1
Notes that the Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representative and the Manager for the purchase
of such Class A1 Notes by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Manager, except as provided in Section 9. As
used in this Agreement, the term "UNDERWRITER" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Members Equity Parties, the Issuer Trustee or their respective officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the Members
Equity Parties, the Issuer Trustee or any of their respective representatives,
officers or directors or any
23
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. The Class
A1 Notes may not, in connection with their initial distribution, be offered or
sold, directly or indirectly, in the Commonwealth of Australia, its territories
or possessions, or to any resident of Australia except by way of an offer or
sale not required to be disclosed pursuant to Chapter 6D of the Corporations Xxx
0000 (Cth). Each Underwriter severally (but not jointly) represents and agrees
that it:
(1) has not, directly or indirectly, offered for issue or sale or
invited applications for the issue of or for offers to
purchase nor has it sold, the Class A1 Notes;
(2) will not, directly or indirectly, offer for issue or sale or
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 Xxx 0000 (Cth) and
the Corporations Regulations made under the Corporations Xxx
0000 (Cth);
24
(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 or the Issuer Trustee (which shall also
include for this purpose the beneficiaries of the Fund, being
the residual capital unitholder and the income unitholder
(together, the "BENEFICIARIES") and associates of the
Beneficiaries) within the meaning of section 128FA of the
Income Tax Assessment Act 1936 (Cth) (other than in the
capacity of a dealer, manager or underwriter in relation to a
placement of the Class A1 Notes or a clearing house,
custodian, funds manager or responsible entity or a registered
scheme) 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 indirectly) by an associate of the Issuer Trustee or ME
Portfolio Management Limited for the purposes of section 128FA of the Income Tax
Assessment Xxx 0000 (Cth).
(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 128FA(8) of the
Income Tax Assessment Xxx 0000 (Cth)), as identified on the
List; or
(3) by the Underwriter offering those Class A1 Notes for sale to
at least 100 persons who it would be reasonable to regard as
either having acquired
25
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 128FA 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 Xxx 0000, as
amended (the "FSMA") received by it in connection with the issue or
sale of any Class A1 Notes in circumstances in which section 21(1)
of the FSMA does not apply to the Issuer Trustee; and
(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.
(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
26
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) In relation to each member state of the European Economic Area which
has implemented the Prospectus Directive (each, a "RELEVANT MEMBER STATE"), each
Underwriter represents and agrees that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant Member State
(the "RELEVANT IMPLEMENTATION DATE") it has not made and will not make an offer
of Class A1 Notes to the public (where such Class A1 Notes have a minimum
denomination less than (euro)50,000 (or its equivalent in any other currency) as
at the date of issue of such Class A1 NoTES) in that Relevant Member State prior
to the publication of a prospectus in relation to the Class A1 Notes which has
been approved by the competent authority in that Relevant Member State, or where
appropriate, approved in another Relevant Member State, all in accordance with
the Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Class A1 Notes to the public in
that Relevant Member State at any time:
(1) to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(2) to any legal entity which has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a total
balance sheet of more than (euro)43,000,000; and (3) an annual net
turnover of more THAN (euro)50,000,000, as shown in its last annual
or consolidated accounts;
(3) in any other circumstances which do not require publication by
the manager or the issuer trustee on behalf of the issuing entity of
a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Class A1
Notes to the public" in relation to any Class A1 Notes in any Relevant Member
State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Class A1 Notes to be offered so as
to enable an investor to decide to purchase or subscribe to the Class A1 Notes,
as the same may be varied in that Relevant Member State by any measure
implementing the Prospectus Directive in that Relevant Member State and the
expression "Prospectus Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
27
(j) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any Members Equity Party that
any action has been or will be taken in any jurisdiction outside the United
States by the Issuer Trustee or any Underwriter that would permit a public
offering of the Class A1 Notes, or possession or distribution of the Prospectus
or any other offering material, in any country or jurisdiction where action for
that purpose is required. Each Underwriter (severally and not jointly) will
comply with all applicable securities laws and regulations in each jurisdiction
in which it purchases, offers, sells or delivers Class A1 Notes or has in its
possession or distributes the Prospectus or any other offering material, in all
cases at its own expense.
11. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement and issues the Class A1
Notes only in its capacity as trustee of the Fund and in no other
capacity. A liability incurred by the Issuer Trustee acting in its
capacity as Issuer Trustee of the Fund arising under or in connection with
this Agreement, the Class A1 Notes or the Fund is limited to and can be
enforced against the Issuer Trustee only to the extent to which it can be
satisfied out of assets and property of the Fund out of which the Issuer
Trustee is actually indemnified for such liability. This limitation of the
Issuer Trustee's liability applies despite any other provisions of this
Agreement (other than Section 11(c)) and extends to all liabilities and
obligations of the Issuer Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or Transaction
related to this Agreement, the Class A1 Notes or the Fund.
(b) Each Underwriter and each of the Members Equity Parties may not xxx
the Issuer Trustee in respect of liabilities incurred by the Issuer
Trustee, acting in its capacity as Issuer Trustee of the Fund, in any
capacity other than as trustee of the Fund including seeking the
appointment of a receiver (except in relation to the assets of the Fund),
or a liquidator, an administrator or any other similar person to the
Issuer Trustee or prove in any liquidation, administration or arrangements
of or affecting the Issuer Trustee (except in relation to the assets of
the Fund).
(c) The provisions of this Section 11 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied
because, under a Transaction Document (as defined in the Master Trust
Deed) or by operation of law, there is a reduction in the extent of the
Issuer Trustee's indemnification or exoneration out of the assets of the
Fund as a result of the Issuer Trustee's fraud, negligence or willful
default (as defined in the Security Trust Deed).
(d) It is acknowledged that the Manager, the Mortgage Manager, the
Security Trustee, the U.S.$ Currency Swap Provider, the Euro Currency Swap
Provider, the Liquidity Facility Provider, the Payment Funding Facility
Provider, the Redraw Funding Facility Provider, the Top-Up Funding
Facility Provider, the Fixed-Floating Interest 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
28
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) to (e) of this Section 11.
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, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to it by the person
serving the same to the address provided in Section 17, shall be deemed in every
respect effective service of process upon it in any such suit or proceeding.
Each of the Members Equity Parties and the Issuer Trustee further agrees to take
any and all action as may be necessary to maintain such designation and
appointment of such agent in full force and effect for so long as the Class A1
Notes remain outstanding.
13. Satisfaction of Obligations in United States Dollars. The obligation of any
of the Members Equity Parties or the Issuer Trustee in respect of any sum due to
any Underwriter shall, notwithstanding any judgment in a currency other than
United States dollars, not be discharged until the first business day, following
receipt by such Underwriter of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such Underwriter may, in
accordance with normal banking procedures, purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Underwriter hereunder, each of the Members Equity
Parties and the Issuer Trustee agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter against such
loss.
14. Foreign Taxes. All payments to be made by the Issuer Trustee and any Members
Equity Party hereunder shall be made without withholding or deduction for or on
account of any present or future taxes, duties or governmental charges
whatsoever unless the Issuer Trustee or such
29
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 with this Agreement, each of the Issuer Trustee and the
Members Equity Parties, as applicable, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to such
relief and enforcement.
16. Judgment Currency. If any judgment or order in any legal proceeding against
any of the Issuer Trustee and the Members Equity Parties is given or made for
any amount due hereunder 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 OF EXCHANGE" shall
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
17. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representative at 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Legal; if sent to the Manager will be mailed, delivered or
telegraphed and confirmed to the Manager at 000 Xxxxxxx Xxxxxx, Xxxxx 00,
Xxxxxxxxx, Xxxxxxxx 0000, Xxxxxxxxx (Facsimile No. 612-9605 6200), Attention:
Manager Capital Markets; if sent to the Issuer Trustee, mailed, delivered or
telegraphed and confirmed to the Issuer Trustee at Xxxxx 00, 000 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx (Facsimile No. 612-9221 7870),
Attention: Manager Securitisation; and if sent to Members Equity, mailed,
delivered or telegraphed and confirmed to Members Equity at 000 Xxxxxxx Xxxxxx,
Xxxxx 00, Xxxxxxxxx, Xxxxxxxx 0000, Xxxxxxxxx (Facsimile No. 613-9605 6200),
Attention: Xxxx Xxxxxx;
30
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:
(a) the Representative has been retained solely to act as underwriter in
connection with the sale of the Class A1 Notes and that no fiduciary,
advisory or agency relationship between either the Manager or the Issuer
Trustee, on the one hand, and the Representative, on the other hand, has
been created in respect of any of the transactions contemplated by this
Agreement, irrespective of whether the Representative has advised or is
advising the Manager and/or the Issuer Trustee on other matters;
(b) the price of the Class A1 Notes set forth in this Agreement was
established by the Representative and the Underwriters following
discussions and arms-length negotiations with the Manager and the Issuer
Trustee, and the Manager and the Issuer Trustee are capable of evaluating
and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement;
(c) they have been advised that the Representative and its affiliates are
engaged in a broad range of transactions which may involve interests that
differ from those of the Manager and the Issuer Trustee and that the
Representative has no obligation to disclose such interests and
transactions to the Manager and the Issuer Trustee by virtue of any
fiduciary, advisory or agency relationship; and
(d) they jointly and severally waive, to the fullest extent permitted by
law, any claims they may have against the Representative for breach of
fiduciary duty or alleged breach of fiduciary duty and agree that the
Representative shall have no liability (whether direct or indirect) to the
Manager or the Issuer Trustee in respect of such a fiduciary duty claim or
to any person asserting a fiduciary duty claim on behalf of or in right of
the Manager and/or the Issuer Trustee, including stockholders, employees
or creditors of the Manager or the Issuer Trustee.
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.
31
[signature pages follow]
32
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:
By:
----------------------------
Name:
Title:
PERPETUAL 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:
[_________]
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
----------- ---------------------
[_________] $[______]
[_________] $[______]
Total................................. $[______]
COMMISSIONS:
UNDERWRITING SELLING MANAGEMENT
UNDERWRITER COMMISSION COMMISSION COMMISSION
----------- ---------- ---------- ----------
[_________] $[______] $[______] $[______]
[_________] $[______] $[______] $[______]
Total........................ $[______] $[______] $[______]
SCHEDULE II
-----------
LIST OF ISSUER FREE-WRITING PROSPECTUSES
See Section 5.III of this Agreement.
SCHEDULE A
SMHL GLOBAL FUND NO. 9
Form of Certificates pursuant to Section 6(c) of the Underwriting Agreement
[OFFICER'S CERTIFICATE OF THE ISSUER TRUSTEE]
Date: ____________
[_________]
As Representative of the Underwriters
[_________]
[_________]
I, ________________, in my capacity as a __________________ of Perpetual Limited
("Perpetual"), hereby certify that, to the best of my knowledge after reasonable
investigation:
(i) the representations and warranties of Perpetual, in its capacity as
trustee of the SMHL Global Fund No. [_] (in such capacity, the
"Issuer Trustee"), in the Underwriting Agreement dated [______] (the
"Underwriting Agreement"), among [_________], 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: ____________
[_________]
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 [______] (the "Underwriting
Agreement"), among [_________], as representative ("Representative")
of the several Underwriters listed in Schedule I to that agreement
(the "Underwriters"), the Manager, Perpetual Limited, in its
capacity as trustee of the SMHL Global Fund No. [_], 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: ____________
[_________]
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 [______] (the "Underwriting
Agreement"), among [_________], as representative ("Representative")
of the several Underwriters listed in Schedule I to that agreement
(the "Underwriters"), ME Portfolio Management Limited, Perpetual
Limited, in its capacity as trustee of the SMHL Global Fund No. [_],
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-1
-----------
Opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
[TO BE ATTACHED]
Exhibit C-2
-----------
10b-5 negative assurance letter of Skadden, Arps, Slate, Meagher, & Xxxx LLP
[TO BE ATTACHED]
Exhibit D
---------
Opinion of Xxxxx Xxxxx York
[TO BE ATTACHED]
Exhibit E
---------
Opinion of Mallesons Xxxxxxx Xxxxxx
[TO BE ATTACHED]
Exhibit F
---------
Opinion of Counsel to
the U.S.$ Currency Swap Provider
[TO BE ATTACHED]
Exhibit G
---------
Opinion of Counsel to
the Euro Currency Swap Provider
[TO BE ATTACHED]
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
XXXX (Queensland) Pty Limited Pooled Superannaution Trust
Construction and Building Union Superannuation Fund
CARE Superannuation Plan Pty Ltd
Catholic Church Staff Superannuation Fund (SA)
Xxxxxxxx Superannuation Plan
Coal Industry Superannuation Fund
Clemenger Superannuation Plan
Xxxxxx Superannuation Pty Ltd
Club Plus Superannuation Pty Ltd
Club Super
Concept One Superannuation Plan
National Nominees Limited ANF SPEC PTY Limited ATF CONNECT
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 Xxxxxxx Management Services Pty. Ltd
Industry Funds Management Pty Ltd (Nominees 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
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 Investment Management Limited
Perpetual Legal Services Pty Ltd.
Perpetual Loan Company Limited
Perpetual Nominees Limited
Perpetual Nominees (Canberra) Limited
Perpetual Property Securities Limited
Perpetual Service Network Pty Limited
Perpetual Services Pty Ltd
Perpetual Superannuation Limited
Perpetual Trust Services Limited
Perpetual Trustee Company Ltd
Perpetual Trustee Company (Canberra) 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
P.I. Investment Management Limited (Incorporation No. 391261)
PT Limited
Queensland Trustees Pty Limited
Terrace Guardians Ltd
Xxxxxx Xxxxxxxx Limited
Xxxxxx Xxxxxxxx Finance Pty Limited
Xxxxxx Xxxxxxxx Partnership Pty Limited
