EXHIBIT 1.1
UNDERWRITING AGREEMENT
US$[ ]
Perpetual Trustee Company Limited
SERIES 2001 -- 1G MEDALLION TRUST
Class A-1 Mortgage Backed Floating Rate Notes Due 2032
UNDERWRITING AGREEMENT
[April _, 2001
[▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇]
("Salomon")
As Representative of the
Several Underwriters Listed
in Schedule I
[ ]
[ ]
New York, NY [ ]
Ladies and Gentlemen:
Perpetual Trustee Company Limited, ABN 42 000 001 007, a company
incorporated in New South Wales, Australia ("Perpetual"), acting in its capacity
as trustee of the Series 2001-1G Medallion Trust (the "Trust", and Perpetual in
that capacity being the "Issuer Trustee"), acting at the direction of
Securitisation Advisory Services Pty Limited, ABN 88 064 133 946, a company
incorporated in New South Wales, Australia, as manager of the Trust (the
"Manager"), proposes to sell to the several Underwriters listed in Schedule I to
this Agreement (the "Underwriters"), for whom Salomon is acting as
representative (the "Representative"), US$[ ] aggregate principal amount of
Class A-1 Mortgage Backed Floating Rate Notes due 2032 (the "Class A-1 Notes")
issued by the Issuer Trustee. The Manager is a wholly-owned subsidiary of
Commonwealth
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Bank of Australia, ABN 48 123 123 124, a company incorporated in the Australian
Capital Territory, Australia ("CBA").
The Class A-1 Notes will be secured by the assets of the Trust in
accordance with the Security Trust Deed. The assets of the Trust means all
assets and property, real and personal, (including choses in action and other
rights), tangible and intangible, present or future, held by the Issuer Trustee
from time to time, as trustee of the Trust including, among other things: (i)
rights specified in the Security Trust Deed and the Note Trust Deed in a pool of
variable and fixed rate residential mortgage loans (the "Mortgage Loans") (such
rights, the "Mortgage Loan Rights" (as defined on the next page)) and certain
moneys received under the Mortgage Loans after [April _], 2001 (the "Cutoff
Date"), (ii) the benefits of all covenants, agreements, undertakings,
representations, warranties and other choses in action in favor of the Issuer
Trustee under the Transaction Documents (as defined in the Series Supplement),
(iii) the Collection Account and (iv) all other assets that comprise the Charged
Property (as defined in the Security Trust Deed). The Mortgage Loans will be
sold to the Issuer Trustee by CBA and Colonial State Bank ("Colonial") (in such
capacity, the "Sellers") and will be serviced for the Issuer Trustee by CBA (in
such capacity, the "Servicer").
The Trust was created pursuant to a master trust deed dated October 8,
1997, as amended from time to time (the "Master Trust Deed") between the Manager
and Perpetual and a series supplement dated [March _], 2001 (the "Series
Supplement"), between CBA (as Seller and Servicer), the Manager and the Issuer
Trustee, which describes, among other things, the Trust and the underlying cash
flow relating to the Class A-1 Notes. The Class A-1 Notes will be issued
pursuant to a Note Trust Deed to be dated [April _], 2001 among the Issuer
Trustee, the Manager and The Bank of New York, New York branch (the "Class A-1
Note Trustee").
Concurrently with the sale of the Class A-1 Notes, the Issuer Trustee
will also issue [US$[ ] aggregate principal amount of Class A-1 Mortgage Backed
Floating Rate Notes due 2032, which will be placed pursuant to a Placement
Agency Agreement, dated [April _], 2001, among CBA, the Manager, Perpetual and
[Salomon] as the placement agent, US$[ ] aggregate principal amount of Class A-1
Mortgage Backed Floating Rate Notes due 2032, which will be placed pursuant to a
Placement Agency Agreement, dated [April _], 2001, among CBA, the Manager,
Perpetual and [ ____________ ] as the placement agent (together with the notes
placed by Salomon, the "Placed Class A-1 Notes")] A$[ ] in aggregate principal
amount of Class A-2 Notes (together with the Class A-1 Notes, the "Class A
Notes"), and A$[ ] in aggregate principal amount of Class
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B Notes. The Class A-1 Notes [and the Placed Class A-1 Notes] will be issued in
an aggregate principal amount of US$[ ] which is equal to approximately [ ]% of
the aggregate balance of the Mortgage Loans as of the Cutoff Date. The Class A-2
Notes will be equal to approximately [ ]% of the aggregate principal amount of
Mortgage Loans as of the Cutoff Date, and the Class B Notes will be equal to
approximately [ ]% of the aggregate principal amount of the Mortgage Loans as of
the Cutoff Date. The assets of the Trust will also secure under the Security
Trust Deed, among other things, any Redraw Bonds (as defined in the Series
Supplement) that may be issued after the date of this Agreement and the Issuer
Trustee's obligations under the Liquidity Facility. The Class A-2 Notes, the
Class B Notes and the Redraw Bonds are collectively referred to as the "A$
Securities." The Class A-1 Notes, [the Placed Class A-1 Notes] and the A$
Securities are collectively referred to as the "Notes."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Class A-1 Notes. The
registration statement as amended at the time when it shall become effective,
or, if a post-effective amendment is filed with respect thereto, as amended by
such post-effective amendment at the time of its effectiveness, including in
each case information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430 or Rule 430A under the
Securities Act, is referred to in this Agreement as the "Registration
Statement", and the prospectus in the form first used to confirm sales of Class
A-1 Notes is referred to in this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean collectively:
the Master Trust Deed (in so far as it applies to the Trust), the Series
Supplement, the Notes, the Security Trust Deed, the Note Trust Deed, the Agency
Agreement, the Dealer Agreement, the Liquidity Facility Agreement, the Standby
Redraw Facility Agreement, the Currency Swap Agreements, the Interest Rate Swap
Agreements, the Mortgage Insurance Policies, any other document which is agreed
to by the Manager and the Issuer Trustee to be a Transaction Document in
relation to the Trust under clause 1.6(a)(v) of the Series Supplement, the DTC
Letter of Representations, any undertakings given to Euroclear or Clearstream
Banking, societe anonyme ("Clearstream") in connection with the Book Entry
Notes, any agreement, instrument or undertaking entered into by the Issuer
Trustee or any CBA Party in connection with the admission of the Class A-1 Notes
to the official list ("Official List") of the Financial Services Authority ("UK
Listing Authority") and the admission of the
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Class A-1 Notes to trading on the London Stock Exchange Limited's (the "London
Stock Exchange") market for listed securities, and any other contract, agreement
or instrument which is specified in the draft settlement agenda dated [April _],
2001 prepared by ▇▇▇▇▇▇▇ ▇▇▇ in connection with the issuance and sale of the
Class A-1 Notes. CBA and the Manager are each a "CBA Party" and collectively are
referred to as the "CBA Parties." To the extent not defined herein, capitalized
terms used herein have the meanings assigned to such terms in the Series
Supplement.
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity and reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the CBA Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale.
(a) The Issuer Trustee, at the direction of the Manager, agrees to sell,
and the Manager agrees to direct the Issuer Trustee to sell, the Class A-1 Notes
to the several Underwriters as hereinafter provided, and each Underwriter, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Issuer Trustee, the respective principal amounts of Class A-1
Notes set forth opposite such Underwriter's name in Schedule I hereto at a price
equal to 100% of their principal amount.
(b) In connection with such purchase, CBA will pay in immediately
available funds to the Underwriters the commissions payable under the letter
agreement relating to fees and expenses between CBA and the Representative ("Fee
Letter").
(c) Each of the several Underwriters agrees to pay for any expenses
incurred by the CBA Parties in connection with any "roadshow" presentation to
potential investors.
2. Offering. The CBA Parties and the Issuer Trustee understand that the
Underwriters intend to make a public offering of their respective portions of
the Class A-1 Notes upon the terms set forth in the Prospectus as soon after (A)
the
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Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of Salomon is
advisable.
3. Delivery and Payment. Payment for the Class A-1 Notes shall be made
by wire transfer in immediately available funds to the account specified by the
Issuer Trustee to Salomon no later than 12:00 noon, New York City time on [April
_], 2001, or at such other time on the same or such other date, not later than
the fifth Business Day thereafter, as Salomon and the Manager may agree upon in
writing. The time and date of such payment are referred to herein as the
"Closing Date". As used herein, the term "Business Day" means any day other than
a day on which banks are permitted or required to be closed in New York City,
Sydney and London.
Payment for the Class A-1 Notes shall be made against delivery to the
nominee of the Depository Trust Company for the account of Salomon and for the
respective accounts of the several Underwriters of one or more fully registered
global book-entry notes (the "Book-Entry Notes") representing US$[ ] in
aggregate Principal Amount of Class A-1 Notes, with any transfer taxes payable
in connection with the transfer to the Underwriters of the Class A-1 Notes duly
paid by the Issuer Trustee. The Book-Entry Notes will be made available for
inspection by Salomon at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ not later than 1:00 P.M., New York City time, on the
Business Day prior to the Closing Date. Interests in any Book Entry Notes will
be held only in Book Entry form through DTC, except in limited circumstances
described in the Prospectus.
4. Representations and Warranties of the Issuer Trustee and the CBA
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter and the
CBA Parties as of the date of this Agreement and as of the Closing Date, and
agrees with each Underwriter and the CBA Parties, that:
(a) since the respective dates as of which information is provided in
the Registration Statement and the Prospectus, there has not been any material
adverse change or any development involving a prospective material adverse
change in or affecting the general affairs, business, prospects, management, or
results of operations, condition (financial or otherwise) of Perpetual or the
Trust except as disclosed in the Prospectus which is material in the context of
performing the Issuer
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Trustee's obligations and duties under the Notes and each Basic Document to
which it is or is to be party;
(b) Perpetual has been duly incorporated and is validly existing as a
corporation under the laws of New South Wales, with power and authority
(corporate and other) to conduct its business as described in the Prospectus,
and to enter into and perform the Issuer Trustee's obligations under this
Agreement and the Basic Documents and Perpetual has been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents;
(c) Perpetual has duly authorized, executed and delivered this
Agreement;
(d) the Notes have been duly authorized by Perpetual, and, when the
Class A-1 Notes have been issued (and duly authenticated by the Class A-1 Note
Trustee), delivered and paid for pursuant to this Agreement, they will
constitute valid and binding obligations of the Issuer Trustee entitled to the
benefits of the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable principles.
(e) the execution, delivery and performance by Perpetual of each of
the Basic Documents to which it either is, or is to be, a party and this
Agreement has been duly authorized by Perpetual and, when executed and delivered
by it and the other parties thereto, each of the Basic Documents will constitute
a legal, valid and binding obligation of the Issuer Trustee, enforceable against
it in accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles;
(f) Perpetual is not, nor with the giving of notice or lapse of time
or both will be, in violation of or in default under: (i) its constitution or
(ii) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which either is a party or by which it or any of its properties
is bound, except in the case of (ii), for violations and defaults which
individually and in the aggregate
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would not have a material adverse effect on the transactions contemplated in or
in the Basic Documents; the issue and sale of the Notes and the performance by
the Issuer Trustee of all of the provisions of the Issuer Trustee's obligations
under the Notes, the Basic Documents and this Agreement and the consummation of
the transactions herein and therein contemplated will not (I) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject, (II) result in any violation of the
provisions of its constitution or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over it, or any of its properties; or (III) result in the creation
or imposition of any lien or encumbrance upon any of its property pursuant to
the terms of any indenture, mortgage, contract or other instrument other than
pursuant to the Basic Documents; and no consent, approval, authorization, order,
license, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Notes or the
consummation by the Issuer Trustee of the transactions contemplated by this
Agreement or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder (the latter,
including such applicable rules and regulations, the "Trust Indenture Act") and
as may be required under state securities or "Blue Sky" Laws in connection with
the purchase and distribution of the Class A-1 Notes by the Underwriters;
(g) other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or the Trust or
to which it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents by
the Issuer Trustee, (iii) that may adversely affect the US Federal or Australian
Federal or state income, excise, franchise or similar tax attributes of the
Class A-1 Notes, (iv) that could materially and adversely affect the Issuer
Trustee's performance of its obligations under, or the validity or
enforceability against the Issuer Trustee of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
any of the Class A-1 Notes; and there are no contracts or other documents to
which it is party or bound that are required to be filed as an exhibit to
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the Registration Statement or laws, contracts or other documents required to be
described in the Registration Statement or the Prospectus which are not filed or
described as required;
(h) the representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might reduce, limit
or otherwise adversely affect the right of the Issuer Trustee to be indemnified
from the assets of the Trust under Clause 16 of the Master Trust Deed;
(j) the Prospectus complies with the Listing Rules of the UK Listing
Authority, and any preliminary prospectus and the Prospectus (in the case of the
Prospectus, as of the date of this Agreement and in the case of any preliminary
prospectus, as of its date) (i) contains all the information required by section
146 of the Financial Services ▇▇▇ ▇▇▇▇ (the "Financial Services Act"); and (ii)
in the context of offers and sales of the Class A-1 Notes to any person (A) who
is outside the "United States" (as defined in Regulation S under the Securities
Act) or (B) who is not a "U.S. person" (as defined in Regulation S under the
Securities Act), is accurate in all material respects and does not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the information therein, in the light of the circumstances under which
it is given, not misleading and all reasonable inquiries have been made by or on
behalf of the Issuer Trustee to ascertain the accuracy of all such information;
(k) Perpetual has not taken any corporate action and (to the best of
its knowledge and belief having made reasonable inquiry and investigation) no
other steps have been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator, provisional
liquidator or similar officer of it or of any or all its assets;
(l) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Income Tax Assessment Act 1936 (the
"Australian Tax Act") in relation to interest payments under the Class A-1
Notes, no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature will be imposed or made for or on
account of any income, registration transfer or turnover taxes, customs or other
duties or taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or authority
therein or thereof having power to tax in such
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jurisdiction, in connection with (i) the authorization, execution or delivery of
any of the Basic Documents to which it is or is to be a party or with the
authorization, execution, issue, sale or delivery of the Class A-1 Notes under
this Agreement, (ii) the sale and delivery of the Class A-1 Notes by the
Underwriters contemplated in this Agreement and the Prospectus or (iii) the
execution, delivery or performance by the Issuer Trustee of any of the Basic
Documents to which it is or is to be a party or the Class A-1 Notes; except, in
the case of sub clause (iii), for any of the Basic Documents on which nominal
stamp duty is payable or any other document executed in connection with the
perfection of the Issuer's Trustee's legal title to the Mortgage Loans on which
stamp duties or registration fees may be payable;
(m) the Class A-1 Notes and the obligations of the Issuer Trustee
under the Note Trust Deed will be secured (pursuant to the Security Trust Deed)
by a first floating charge over the assets of the Trust, subject to the Prior
Interest (as defined in the Security Trust Deed); and
(n) no event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice or
direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
II. Each CBA Party severally represents and warrants to each Underwriter
and the Issuer Trustee as of the date of this Agreement and as of the Closing
Date that:
(a) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the CBA Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust otherwise than as set
forth or contemplated in the Prospectus;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of (in the case of CBA) the Australian Capital
Territory and (in the case of the Manager) New South Wales, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement
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and the Basic Documents, and, in each case, has been duly qualified or licensed
for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification or licensing, other than where the
failure to be so qualified or licensed or in good standing would not have a
material adverse effect on the transactions contemplated in this Agreement or in
the Basic Documents;
(c) this Agreement has been duly authorized, executed and delivered by
it;
(d) each of the Basic Documents to which it is or is to be a party has
been duly authorized by it and, upon effectiveness of the Registration
Statement, the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each CBA Party that is a party to it and the other parties thereto, will
constitute a legal, valid and binding obligation of such CBA party, enforceable
against it in accordance with its terms, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the enforcement of
creditors rights generally and to general equitable principles; and, in the case
of the Manager only, the Class A-1 Notes and the Basic Documents each will
conform to the descriptions thereof in the Prospectus;
(e) it is not, nor with the giving of notice or lapse of time or both
would it be, in violation of or in default under, its constitution or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject, (ii) result in any violation of the
provisions of the constitution of a CBA Party or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over a CBA Party, or any of its properties or (iii) result
in the creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract, or
other instrument other than pursuant to the
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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 A-1 Notes or the
consummation by it of the transactions contemplated by this Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under state
securities or Blue Sky Laws of the United States in connection with the purchase
and distribution of the Class A-1 Notes by the Underwriters and the registration
of the Charge with the ASIC on the Closing Date;
(f) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or its
properties, the Trust or the Trust's properties, or to which it or the Trust is
or may be a party or to which it, the Trust or any property of it or the Trust
is or may be the subject, (i) asserting the invalidity of this Agreement or of
any of the Basic Documents, (ii) seeking to prevent the issuance of the Notes or
the consummation of any of the transactions contemplated by this Agreement or
any of the Basic Documents, (iii) that may adversely affect the U.S. federal or
Australian federal or state income, excise, franchise, stamp duty or similar tax
attributes of the Class A-1 Notes, (iv) that could materially and adversely
affect its performance of its obligations under, or the validity or
enforceability of, this Agreement or any of the Basic Documents or (v) which
could individually or in the aggregate reasonably be expected to have a material
adverse effect on the interests of the holders of the Class A-1 Notes or the
marketability of the Class A-1 Notes; and there are no statutes, regulations,
contracts or other documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Prospectus which are not filed or described as required;
(g) its representations and warranties contained in the Basic
Documents are true and correct in all material respects;
(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to perform its obligations
under this Agreement and the Basic Documents, and it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
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authorization; and it is in compliance with all laws and regulations necessary
for the performance of its obligations under this Agreement and the Basic
Documents;
(i) the Prospectus complies with the Listing Rules of the UK Listing
Authority,
and any preliminary prospectus and the Prospectus (in the case of the
Prospectus), as of the date hereof and in the case of any preliminary
prospectus, as of its date) (i) contains all the information required by section
146 of the Financial Services Act; and (ii) in the context of offers and sales
of the Class A-1 Notes to any person (A) who is outside the "United States" (as
defined in Regulation S under the Securities Act) or (B) who is not a "U.S.
person" (as defined in Regulation S under the Securities Act), is accurate in
all material respects and does not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the information
therein, in the light of the circumstances under which it is given, not
misleading and all reasonable inquiries have been made by the CBA Parties to
ascertain the accuracy of all such information;
(j) it has not taken any corporate action and (to the best of its
knowledge and belief having made reasonable inquiry and investigation) no other
steps have been taken or legal proceedings been started or threatened against it
for its winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or similar
officer of it or of any or all of its assets (other than enforcement action
taken by CBA over its assets);
(k) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Australian Tax Act in relation to
payments under the Class A-1 Notes, no withholding or deduction for any taxes,
duties, assessments or governmental charges of whatever nature is imposed or
made for or on account of any income, registration, transfer or turnover taxes,
customs or other duties or taxes of any kind, levied, collected, withheld or
assessed by or within, the Commonwealth of Australia or any sub-divisions of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with (i) the authorization, execution or delivery of the Basic
Documents to which it is, or is to be, a party or with the authorization,
execution, issue, sale or delivery of the Class A-1 Notes and (ii) the
execution, delivery or performance by each CBA Party of the Basic Documents to
which it is or is to be a party or the Class A-1 Notes; except, in the case of
sub clause (ii), for any of the Basic Documents on which nominal stamp duty is
payable or any other document executed in connection with the perfection of the
Issuer's Trustee's legal title to the Mortgage Loans on which stamp duties or
registration fees may be payable;
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(l) no event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice and/or the
passage of time and/or the fulfillment of any other requirement) constitute a
Manager Default (as defined in the Master Trust Deed) or a Servicer Default (as
defined in the Series Supplement); and
(m) with respect to the A$ Securities: (A) none of the CBA Parties,
any "affiliate" (as defined in Rule 144(a)(1), each an "Affiliate") of a CBA
Party or any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has engaged or will engage in any "directed selling efforts" (within the
meaning of Regulation S), (B) each of the CBA Parties, each Affiliate of a CBA
Party and any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has offered and sold, and will offer and sell, the A$ Securities only in
"offshore transactions" (within the meaning of Regulation S) in compliance with
Regulation S and (C) each of the CBA Parties, each Affiliate of a CBA Party and
any person acting on behalf of a CBA Party or an Affiliate of a CBA Party has
complied and will comply with the offering restrictions requirement of
Regulation S.
III. The Manager represents and warrants to each Underwriter and the Issuer
Trustee as of the date of this Agreement and as of the Closing Date, that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to a CBA Party in writing by such Underwriter
through Salomon expressly for use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Manager, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the
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Manager shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the Securities
Act and the Trust Indenture Act and do not and will not, as of the applicable
effective date of the Registration Statement and any amendment thereto and as of
the date of the Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the Closing
Date will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act, and (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to any CBA Party in writing by such Underwriter through Salomon
expressly for use therein;
(c) Ernst & Young LLP are independent public accountants with respect
to CBA and the Manager within the meaning of the Securities Act;
(d) to the knowledge of the Manager, no event has occurred that would
entitle the Manager to direct the Issuer Trustee to retire as trustee of the
Trust under clause 19.2 of the Master Trust Deed;
(e) the Trust is not and (i) upon the issuance and sale of the Notes
as contemplated in this Agreement, (ii) the application of the net proceeds
therefrom as described in the Prospectus, (iii) the performance by the parties
to the Basic Documents of their respective obligations under the Basic
Documents, and (iv) the consummation of the transactions contemplated by the
Basic Documents, the Trust will not be required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended; and
(f) application has been made to the UK Listing Authority for the
Class A-1 Notes to be admitted to the Official List of the UK Listing Authority
and to the London Stock Exchange for the Class A-1 Notes to be admitted to
trading and all relevant requirements of the Listing Rules will have been
complied with.
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5. Covenants and Agreements.
I. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the
sale of the Class A-1 Notes pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it
becomes actually aware of any matter which would make any of its representations
and warranties in this Agreement untrue if given at any time prior to payment
being made to the Issuer Trustee on the Closing Date and take such steps as may
be reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added,
goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, the
Agreements or in connection with the issue and distribution of the Class A-1
Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or
before the Closing Date of the conditions referred to in Section 6 below which
relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents not executed on the date hereof on or
before the Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and Clearstream
concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure
that the charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic
Documents to which it is a party which are required to be performed prior to or
simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit
any action to be taken which it knows or has reason to believe would result in
the Class A-1 Notes not being assigned the ratings referred to in Section 6(q)
below;
-15-
(h) not, prior to or on the Closing Date, amend the terms of any Basic
Document nor execute any of the Basic Documents other than in the agreed form
without the consent of the Underwriters;
(i) provided the Manager complies with Section 5.II.(r), the
Issuer Trustee will:
(i) sign and deliver to the UK Listing Authority a listing
application and copies of the Prospectus on or prior to the
Closing Date;
(ii) ensure that the Prospectus shall be approved as listing
particulars by or on behalf of the UK Listing Authority as
required by Section 144(2) of the Financial Services Act and the
Listing Rules; and
(iii) ensure that two copies of the Prospectus shall be delivered
to the Registrar of Companies in England and Wales for
registration as required by Section 149 of the Financial Services
Act, on or before the date of publication thereof;
(j) to procure that if, after the Prospectus has been published and
following the admission of the Class A-1 Notes to the Official List of the UK
Listing Authority and admission of the Class A-1 Notes to trading on the London
Stock Exchange:
(i) there is a significant change affecting any matter contained
in the Prospectus the inclusion of which was required by Section
146 of the Financial Services Act or by the Listing Rules or by
the UK Listing Authority or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of information
in respect of which would have been so required if it had arisen
when the Prospectus was prepared, to notify the Representative on
behalf of the Underwriters as soon as reasonably practicable and,
in accordance with the Listing Rules, to submit to the UK Listing
Authority for its approval and, if approved, publish a supplement
to the Offering Circular of the change or new matter;
-16-
(k) for the purposes of section 128F(3)(c) of the Australian Tax Act,
it will, before it issues any Class A-1 Note, seek a listing of the Class A-1
Notes on the Official List of the UK Listing Authority and the admission of the
Class A-1 Notes to trading on the London Stock Exchange, and use its best
efforts to maintain such listing for as long as any of the Class A-1 Notes are
outstanding; provided, however, if such listing becomes impossible, to use their
best efforts to obtain, and will thereafter use its best efforts to maintain a
quotation for, or listing of, the Class A-1 Notes on such other exchange as is
commonly used for the quotation or listing of debt securities as they may, with
the approval of Salomon, decide; and
(l) in connection with the initial distribution of the Class A-2 Notes
and the Class B Notes, it and each person acting on its behalf (other than the
CBA Parties, each Affiliate of a CBA Party and the Managers (as defined in the
Dealer Agreement)) has not and will not offer for issue, or invite applications
for the issue of, the Class A-2 Notes and the Class B Notes or offer the Class
A-2 Notes and the Class B Notes for sale or invite offers to purchase the Class
A-2 Notes and the Class B Notes to a person, where the offer or invitation is
received by that person in Australia, unless the minimum amount payable for the
Class A-2 Notes or the Class B Notes (as the case may be) (after disregarding
any amount lent by any of the CBA Parties or any associate (as determined under
sections 10 to 17 of the Corporations Law) of any CBA Party) on acceptance of
the offer by that person is at least A$500,000 or the offer or invitation
otherwise does not require disclosure to investors in accordance with Part 6D.2
of the Corporations Law.
II. The CBA Parties severally covenant and agree with each of the several
Underwriters and the Issuer Trustee as follows:
(a) in the case of the Manager only, to use its best efforts to cause
the Registration Statement to become effective at the earliest possible time
and, if required, to file the final Prospectus with the Commission within the
time periods specified by Rule 424(b) and Rule 430A under the Securities Act,
and to furnish copies of the Prospectus to the Underwriters in New York City
prior to 10:00 a.m., New York City time, on the Business Day next succeeding the
date of this Agreement in such quantities as the Representative may reasonably
request;
(b) in the case of the Manager only, to deliver, at the expense of the
Manager, to the Representative, five signed copies of the Registration Statement
(as originally filed) and each amendment thereto, in each case including
exhibits, and to each other Underwriter a conformed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each case without
exhibits and,
-17-
during the period mentioned in paragraph (e) below, to each of the Underwriters
as many copies of the Prospectus (including all amendments and supplements
thereto and documents incorporated by reference therein) as the Representative
may reasonably request;
(c) in the case of the Manager only, before filing any amendment or
supplement to the Registration Statement or the Prospectus, whether before or
after the time the Registration Statement becomes effective, to furnish to the
Representative a copy of the proposed amendment or supplement for review and not
to file any such proposed amendment or supplement to which the Representative
reasonably objects;
(d) in the case of the Manager only, to advise the Representative
promptly, and to confirm such advice in writing, (i) when the Registration
Statement has become effective, (ii) when any amendment to the Registration
Statement has been filed or becomes effective, (iii) when any supplement to the
Prospectus or any amendment to the Prospectus has been filed and to furnish the
Representative with copies thereof, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any proceeding
for that purpose, and (vi) of the occurrence of any event, within the period
referenced in paragraph (e) below, as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading and to use its best efforts to prevent the issuance of
any such stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending and such
qualification of the Class A-1 Notes, or notification of any such order thereof
and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) to advise the Representative promptly, and to confirm such advice
in writing of the receipt by a CBA Party of any notification with respect to any
suspension of the qualification of the Class A-1 Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(f) in the case of the Manager only, if, during such period of time
after the first date of the public offering of the Class A-1 Notes as in the
opinion of
-18-
counsel for the Underwriters a prospectus relating to the Class A-1 Notes is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of the CBA
Parties, to the Underwriters and to the dealers (whose names and addresses the
Representative will furnish to CBA) to which Class A-1 Notes may have been sold
by the Representative on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law;
(g) in the case of the Manager only, to endeavor to qualify the Class
A-1 Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and to continue
such qualification in effect so long as reasonably required for distribution of
the Class A-1 Notes; provided that the Manager shall not be required to file a
general consent to service of process in any jurisdiction;
(h) in the case of the Manager only, to make generally available to
the holders of the Class A-1 Notes and to the Representative as soon as
practicable an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(i) in the case of the Manager only, so long as the Class A-1 Notes
are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual independent
certified public accountant's audit report on the financial statements furnished
to the Issuer Trustee pursuant to the Basic Documents by first class mail as
soon as practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as soon thereafter as practicable, notice by
telex or facsimile to the Representative of the Pool Factor as of the related
Record Date, (iv) copies of all reports or other communications (financial or
other) furnished to holders of the Class A-1 Notes, and copies of any reports
and financial statements furnished to or filed with the
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Commission, any governmental or regulatory authority or any national securities
exchange, and (v) from time to time such other information concerning the Trust
or the CBA Parties as the Representative may reasonably request;
(j) to the extent, if any, that the ratings provided with respect to
the Class
A-1 Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by a CBA Party or the Issuer
Trustee, the relevant CBA Party shall use its best efforts to furnish such
documents and take any other such action or, in the case of the Issuer Trustee,
it will use its best efforts to procure the Issuer Trustee to do so;
(k) it will on behalf of the Issuer Trustee: (i) for the purposes of
128F of the Australian Tax Act, seek a listing of the Class A-1 Notes on the
Official List of the UK Listing Authority and the admission of the Class A-1
Notes to trading on the London Stock Exchange before the Issuer Trustee issues
any Class A-1 Note, (ii) ensure that the Issuer Trustee will not offer, issue or
sell the Class A-1 Notes to the Underwriters, until the Class A-1 Notes have
been admitted to the Official List of the UK Listing Authority and to trading on
the London Stock Exchange or the Representative, on behalf of the Underwriters,
is satisfied that the Class A-1 Notes will be admitted after the Closing Date
and (iii) it will, use its best efforts to maintain such listing for as long as
any of the Class A-1 Notes are outstanding; provided, however, if such listing
becomes impossible, to use their best efforts to obtain, and will thereafter use
its best efforts to maintain a quotation for, or listing of, the Class A-1 Notes
on such other exchange as is commonly used for the quotation or listing of debt
securities as they may, with the approval of Salomon, decide;
(l) to furnish from time to time copies of the Prospectus and any and
all documents, instruments, information and undertakings (in addition to any
already published or lodged with the UK Listing Authority) and publish all
advertisements or other material and to comply with any other requirements of
the UK Listing Authority or the London Stock Exchange that may be necessary in
order to effect and maintain such listing;
(m) not to take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to believe
would result in the Class A-1 Notes not being assigned the rating referred to in
Section 6(q) below;
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(n) in the case of the Manager only, to assist Salomon in making
arrangements with DTC, Euroclear and Clearstream concerning the issue of the
Book-Entry Notes and related matters;
(o) in the case of the Manager only, if required, to register the
Class A-1 Notes pursuant to the Securities Exchange Act of 1934, as amended, as
soon as reasonably practicable as such requirement comes into effect but no
later that when such registration may become required by law;
(p) in the case of CBA only, whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
to pay, or cause to be paid, all fees costs and expenses incident to the
performance of the CBA Parties' obligations under this Agreement, including,
without limiting the generality of the foregoing, all fees, costs and expenses:
(i) incident to the preparation, issuance, execution, authentication and
delivery of the Notes, including any fees, costs and expenses of the Class A-1
Note Trustee or any transfer agent, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Class A-1 Notes under the laws of such jurisdictions as the Underwriters may
designate (including fees of counsel for the Underwriters and their
disbursements with respect thereto), (iv) in connection with the listing of the
Notes on any stock exchange, (v) related to any filing with National Association
of Securities Dealers, Inc., (vi) in connection with the printing (including
word processing and duplication costs) and delivery of this Agreement, the Basic
Documents, the Preliminary and Supplemental Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to Underwriters and dealers of copies of
the Registration Statement and the Prospectus, including mailing and shipping,
as provided in this Agreement, (vii) the CBA Parties' counsel and accountants
and the Underwriters' counsel fees and disbursement that are chargeable to CBA,
and (viii) payable to rating agencies in connection with the rating of the
Notes. However, each of the several Underwriters shall be severally responsible
for any expenses incurred by the CBA Parties in connection with any "roadshow"
presentation to potential investors;
(q) to indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issue tax, including any interest and penalties,
on the creation, issue and sale of the Class A-1 Notes in accordance with this
Agreement and on the execution and delivery of this Agreement and any value
added tax or
-21-
goods and services tax payable in connection with any concessions, commissions
and other amounts payable or allowable by the Issuer Trustee; to make all
payments to be made by the CBA Parties or the Issuer Trustee under this
Agreement without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the relevant CBA
Party is compelled by law to deduct or withhold such taxes, duties or charges.
In that event, the relevant CBA Party shall pay such additional amounts as may
be necessary in order that the net amounts received after such withholding or
deduction shall equal the amount that would have been received if no withholding
or deduction had been made;
(r) in the case of the Manager only, to do all things necessary to
enable and cause the Issuer Trustee to:
(i) sign and deliver to the UK Listing Authority a listing
application and copies of the Prospectus on or prior to the
Closing Date;
(ii) cause the Prospectus to be approved as listing particulars
by or on behalf of the UK Listing Authority as required by
Section 144(2) of the Financial Services Act and the Listing
Rules; and
(iii) cause two copies of the Prospectus to be delivered to the
Registrar of Companies in England and Wales for registration as
required by Section 149 of the Financial Services Act, on or
before the date of publication thereof; and
(s) if, after the Prospectus has been published and following the
admission of the Class A-1 Notes to the Official List of the UK Listing
Authority and admission of the Class A-1 Notes to trading on the London Stock
Exchange:
(i) there is a significant change affecting any matter contained
in the Prospectus the inclusion of which was required by Section
146 of the Financial Services Act or by the Listing Rules or by
the UK Listing Authority or by the London Stock Exchange; or
(ii) a significant new matter arises the inclusion of information
in respect of which would have been so required if it had arisen
when the Prospectus was prepared,
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to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and will, in accordance with the Listing Rules, submit to the UK
Listing Authority for its approval and, if approved, publish a supplement to the
Prospectus of the change or new matter;
(t) in connection with the initial distribution of the Class A-2 Notes
and the Class B Notes, it and each person acting on behalf of the CBA Parties
(other than the Co-Managers (as defined in the Dealer Agreement), each of whom
has agreed and covenanted with the Issuer Trustee and the Manager, with
appropriate changes, as follows) has not and will not offer for issue, or invite
applications for the issue of, the Class A-2 Notes and the Class B Notes or
offer the Class A-2 Notes and the Class B Notes for sale or invite offers to
purchase the Class A-2 Notes and the Class B Notes to a person, where the offer
or invitation is received by that person in Australia, unless the minimum amount
payable for the Class A-2 Notes or the Class B Notes (as the case may be) (after
disregarding any amount lent by any of the CBA Parties or any associate (as
determined under sections 10 to 17 of the Corporations Law) of any CBA Party) on
acceptance of the offer by that person is at least A$500,000 or the offer or
invitation otherwise does not require disclosure to investors in accordance with
Part 6D.2 of the Corporations Law; and
(u) to procure that the charges created by or contained in the
Security Trust
Deed are registered within all applicable time limits in all appropriate
registers.
III. Selling Restrictions
(a) No prospectus in relation to the Class A-1 Notes has been lodged
with, or registered by, the Australian Securities and Investments Commission or
the Australian Stock Exchange Limited. Accordingly, each of the Underwriters,
severally and not jointly, represents and agrees that it has not offered and
will not offer for issue and has not invited and will not invite applications
for the issue of the Class A-1 Notes or offer the Class A-1 Notes for sale or
invite offers to purchase the Class A-1 Notes to a person, where the offer or
invitation is received by that person in Australia.
(b) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this Agreement, it will have
offered the Class A-1 Notes for sale, or invited or induced offers to buy the
Class A-1 Notes, in each case by:
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(i) making each preliminary prospectus or the Prospectus
available for inspection on a Bloomberg source and inviting
potential investors to access the preliminary prospectus or the
Prospectus available on that Bloomberg source; or
(ii) making hard copies of each preliminary prospectus or the
Prospectus for the Class A-1 Notes available for collection from
that Underwriter in at least its principal office in New York
City or London and, in the case of purchasers in the United
States, by sending or giving copies of that preliminary
prospectus or the Prospectus to those purchasers.
(c) Each Underwriter agrees that it will not sell Class A-1 Notes
to, or invite or induce offers for the Class A-1 Notes from:
(i) any associate of the Issuer Trustee or a CBA Party specified
in Schedule II or Schedule III; or
(ii) any other associate from time to time specified in writing
to the Underwriter by the Issuer Trustee or a CBA Party.
(d) Each Underwriter, severally and not jointly, agrees to:
(i) provide written advice to the Issuer Trustee and the Manager
within 40 days of the issue of the Class A-1 Notes specifying
that it has complied with section 5(III)(b); and
(ii) cooperate with reasonable requests from the Issuer Trustee
for information for the purposes of assisting the Issuer Trustee
to demonstrate that the public offer test under section 128F of
the Tax Act has been satisfied in respect of the Class A-1 Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any
Class A-1 Note or any information from which
such identity might be capable of being
ascertained; or
-24-
(y) any information the disclosure of which
would be contrary to or prohibited by any
relevant law, regulation or directive.
(e) Each Underwriter, severally and not jointly, represents and agrees
that it (i) has not offered or sold, and prior to admission of the Class A-1
Notes to listing in accordance with Part IV of the Financial Services Act will
not offer or sell any Class A-1 Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
business or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulation 1995, as amended, or the Financial
Services Act, (ii) has complied with and will comply with all applicable
provisions of the Financial Services Act with respect to anything done by it in
relation to the Class A-1 Notes, in, from or otherwise involving the United
Kingdom, and (iii) has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the issue
of the Class A-1 Notes, other than any document which consists of, or any part
of, listing particulars, supplementary listing particulars or any other document
required or permitted to be published by listing rules under Part IV of the
Financial Services Act to a person who is a kind described in Article 11(3) of
the Financial Services Act (Investment Advertisements) (Exemptions) Order 1996,
as amended, or is a person to whom the document may otherwise lawfully be issued
or passed on.
(f) Each Underwriter, severally and not jointly, acknowledges that no
action has been taken to permit a public offering of the Class A-1 Notes in any
jurisdiction outside the United States where action would be required for that
purpose. Each Underwriter will comply with all applicable securities laws and
regulations in each jurisdiction in which it purchases, offer, sells or delivers
Class A-1 Notes or has in its possession or distributes the Prospectus or any
other offering material in all cases at its own expense.
IV. The Manager hereby directs the Issuer Trustee to do each of the things
(or, as the case may be, not to do the things) specified in Section 5.I. and the
Issuer Trustee acknowledges and accepts that direction.
6. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters hereunder are subject to the performance by the
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Issuer Trustee and the CBA Parties of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective, not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Representative;
(b) the representations and warranties of the Issuer Trustee and the
CBA Parties contained herein are true and correct on and as of the Closing Date
as if made on and as of the Closing Date and the representations and warranties
of the Issuer Trustee and CBA Parties in the Basic Documents will be true and
correct on the Closing Date; and the Issuer Trustee and the CBA Parties shall
have complied with all agreements and all conditions on the part of each to be
performed or satisfied hereunder and under the Basic Documents at or prior to
the Closing Date;
(c) all actions required to be taken and all filings required to be
made by the Manager or the Issuer Trustee under the Securities Act prior to the
Closing Date for the Notes shall have been duly taken or made;
(d) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date: (x) there shall not have occurred any downgrading in
any rating accorded any securities of, or guaranteed by, CBA by any "nationally
recognized statistical rating organization" (as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act) to: (i) "A2" or worse in
the case of the rating accorded by ▇▇▇▇▇'▇ Investors Service, Inc., (ii) "A" or
worse in the case of a rating accorded by Standard & Poor's Ratings Group or
(iii) the equivalent of "A2" or "A"or worse in the case of the rating accorded
by any other "nationally recognized statistical rating organization"nor (y)
shall any notice have been given of any intended or potential downgrading as is
referred to in subclause (x) of this paragraph (d);
-26-
(e) since the date of this Agreement, there shall not have been any
material adverse change or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Issuer Trustee or any of the CBA Parties, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Class A-1 Notes on the Closing
Date on the terms and in the manner contemplated in the Prospectus;
(f) the Representative shall have received on and as of the Closing
Date a certificate of an Authorized Officer of the Issuer Trustee and each CBA
Party, with specific knowledge about the party's financial matters, satisfactory
to the Representative to the effect set forth in subsections (a) through (e) of
this Section;
(g) the Representative shall have received letters, dated the date of
delivery thereof, of (i) Ernst & Young LLP, in form and substance satisfactory
to the Representative and counsel for the Underwriters, confirming that they are
independent public accountants within the meaning of the Securities Act and the
applicable Rules and Regulations and stating in effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Registration Statement and the Prospectus (and any amendments and supplements
thereto), agrees with the accounting records of CBA, excluding any questions of
legal interpretation, and (ii) PriceWaterhouseCoopers, in form and substance
satisfactory to the Representative and counsel for the Underwriters, stating in
effect that they have performed certain specified procedures with respect to the
Mortgage Loans;
(h) ▇▇▇▇▇ & ▇▇▇▇ LLP, special United States counsel to the
Underwriters, shall have furnished to the Underwriters their written opinion,
dated the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(i) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, United States counsel for the CBA Parties, shall have
furnished to the Representative their written opinions, dated the Closing Date,
substantially in the form of Exhibit A-1 and Exhibit A-2 and otherwise
-27-
in form and substance satisfactory to the Representative, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(j) ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, United States federal income tax counsel for
the CBA Parties shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(k) ▇▇▇▇▇▇▇ ▇▇▇, Australian counsel for the CBA Parties, shall have
furnished to the Representative their written opinion, dated the Closing Date,
substantially in the form of Exhibit B and otherwise in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(l) ▇▇▇▇▇▇▇ ▇▇▇, Australian tax counsel for the CBA Parties, shall
have furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such
Australian tax counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(m) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Australian counsel for the Issuer
Trustee and the Security Trustee, shall have furnished to the Representative
their written opinion, dated the Closing Date, substantially in the form of
Exhibit C and otherwise in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(n) the Chief Solicitor and General Counsel of CBA shall have
furnished to the Representative their written opinion, dated the Closing Date,
substantially in the form of Exhibit D and otherwise in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(o) Counsel to the Interest Rate Swap Provider and Currency Swap
Providers shall have furnished to the Representative their written opinion dated
the Closing Date, in form and substance satisfactory to the Representative, and
such
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counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(p) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in connection
with the transaction described in this Agreement which opinion is not otherwise
described in this Agreement allowing the Representative to rely on such opinion
as if it were addressed to the Representative;
(q) the Representative shall have received copies of letters from
▇▇▇▇▇'▇ Investors Service, Inc. and Standard & Poor's Ratings Group and Fitch,
Inc. (the "Rating Agencies") stating that the Class A-1 Notes have been rated
AAA or its equivalent by the Rating Agencies;
(r) the Class A-1 Notes shall have been admitted to the Official List
of the UK Listing Authority and admitted to trading on the London Stock Exchange
or such other exchange as the parties shall agree upon or the Representative
shall be satisfied that such listing will be granted after the Closing Date but
in any event, prior to the first Payment Date for the Class A-1 Notes;
(s) the Representative shall have received evidence satisfactory to it
and its counsel that on or prior to the Closing Date the Class A-2 Notes and the
Class B Notes have been duly authorized, executed, authenticated, issued and
delivered pursuant to the Basic Documents;
(t) on or prior to the Closing Date the Issuer Trustee and the CBA
Parties shall have furnished to the Representative such further certificates and
documents as the Representative shall reasonably request; and
(u) [all of the Placed Class A-1 Notes have been duly executed,
authenticated, delivered and paid for.]
7. Indemnification and Contribution.
(a) Each of the CBA Parties agrees jointly and severally to indemnify
and hold harmless each Underwriter, each affiliate of an Underwriter that
assists such Underwriter in the distribution of the Class A-1 Notes and each
person, if any, that controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against (x) any and all losses, claims, damages and liabilities (including,
without limitation, the legal fees
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and other expenses incurred in connection with any suit, action or proceeding or
any claim asserted) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the CBA Parties shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (y) any and all legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted caused by any untrue statement or alleged untrue statement of material
fact contained in any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated in or
necessary to make the statements in not misleading, except in (i) insofar as any
such losses, claims, damages, liabilities, legal fees and other expenses are
caused by any untrue statement or omission or alleged untrue statement or
omission made (A) in reliance upon and in conformity with information relating
to any Underwriter furnished to a CBA Party in writing by such Underwriter
through Salomon expressly for use therein or (B) in the Prepayment and Yield
Information (as defined in the next paragraph); or (ii) that such indemnity with
respect to any preliminary prospectus or the Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling any Underwriter) from whom
the person asserting any such loss, claim, damage or liability, purchased the
Class A-1 Notes which are the subject hereof, if such person did not receive a
copy of the Prospectus (or the Prospectus as amended or supplemented) at or
prior to the confirmation of the sale of such Class A-1 Notes to such person,
and where such delivery is required by the Securities Act and the alleged untrue
statement contained in, or omission of a material fact from (i) any preliminary
prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented) or (ii) the Prospectus was corrected in the Prospectus as amended
or supplemented;
For the purposes of this Agreement, the term "Prepayment and Yield
Information" means that portion of the information in any preliminary prospectus
or the Prospectus (or the Prospectus as amended or supplemented) set forth under
the sub-heading "Prepayment and Yield Considerations - Weighted Average Lives",
including the table entitled "Percent of Initial Principal Outstanding at the
Following Percentages of Constant Prepayment Rate", that is not Pool
Information; provided, however, that information set forth under that
sub-heading that is not Pool Information shall not constitute Prepayment and
Yield Information to the extent such information is inaccurate or misleading in
any material respect as a result of it being based on Pool Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished by magnetic tape, diskette or
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any other computer readable format, or in writing to the Underwriters by any CBA
Party regarding the Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and CBA and each person that controls
a CBA Party or the Issuer Trustee within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the CBA Parties to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the CBA
Parties in writing by such Underwriter through Salomon expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to subsection
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters, each affiliate of any
Underwriter which assists such Underwriter in the distribution of the Notes and
such control persons of Underwriters shall be designated in writing by Salomon
and any such separate firm for the Manager, its directors, its officers who sign
the Registration Statement, CBA and the Issuer Trustee and such control persons
of each of the Issuer Trustee and the
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CBA Parties shall be designated in writing by that party. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this subsection (c), the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in subsection (a) or (b) above
is unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such subsection, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the CBA Parties and
the Issuer Trustee on the one hand and the Underwriters on the other hand from
the offering of the Class A-1 Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the CBA Parties
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and the Issuer Trustee on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the CBA Parties and the Issuer
Trustee on the one hand and the Underwriters on the other shall be deemed to be
in the same respective proportions as the net proceeds from the offering (before
deducting expenses) received by the CBA Parties and the Issuer Trustee and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Class A-1 Notes. The relative
fault of the CBA Parties and the Issuer Trustee on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by a CBA Party or the Issuer Trustee or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The CBA Parties, the Issuer Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amount of Class
A-1 Notes set forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Issuer Trustee and the
CBA Parties set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Issuer Trustee or a CBA Party, its
officers or directors or any other person controlling the Issuer Trustee or a
CBA Party and (iii) acceptance of and payment for any of the Class A-1 Notes.
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(f) To the extent that any payment of damages by a CBA Party pursuant
to subsection (a) above is determined to be a payment of damages pursuant to
Prudential Standard APS 120-- "Funds Management and Securitisation paragraph 15
of Guidance Note AGN 120.3-" "Purchase and Supply of Assets (including
Securities issued by SPVs)," being Guidance Note to Prudential Standard APS
120-"Funds Management and Securitisation" or any successor thereto such payment
shall be subject to the terms therein (or the terms of any equivalent provisions
in any replacement of Predential Standard).
8. Termination. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of Salomon, by notice
given to the Issuer Trustee and each CBA Party, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the London Stock Exchange or the Australian
Stock Exchange, (ii) trading of any securities of or guaranteed by the Issuer
Trustee or any CBA Party shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York, Sydney or London shall have been declared by either
United States Federal, New York State, Commonwealth of Australia, New South
Wales State or United Kingdom authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of Salomon, is material and adverse and
which, in the judgment of Salomon, makes it impracticable to market the Class
A-1 Notes on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness of Agreement; Default of Underwriters. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase Class A-1 Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Class A-1 Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Class A-1 Notes to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Class A-1
Notes set forth opposite their
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respective names in Schedule I bears to the aggregate principal amount of Class
A-1 Notes set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as Salomon may specify, to purchase the Class A-1
Notes which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the principal
amount of Class A-1 Notes that any Underwriter has agreed to purchase pursuant
to Section 1 be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Class A-1 Notes without the written
consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Class A-1 Notes which it or they
have agreed to purchase hereunder on such date, and the aggregate principal
amount of Class A-1 Notes with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Class A-1 Notes to be purchased
on such date, and arrangements satisfactory to Salomon and the Manager for the
purchase of such Notes are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the CBA Parties and the Issuer Trustee. In any such case either
Salomon or the Manager shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated
by the Underwriters, or any of them, because of any failure or refusal on the
part of the Issuer Trustee or a CBA Party to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the Issuer Trustee
or a CBA Party shall be unable to perform its obligations under this Agreement
or any condition of the Underwriters' obligations cannot be fulfilled, the CBA
Parties jointly and severally agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the CBA Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Class A-1 Notes, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be
-35-
construed to give any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. No purchaser of Notes from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
12. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement only in its capacity
as Trustee of the Trust and in no other capacity. A liability incurred by the
Issuer Trustee acting in its capacity as Issuer Trustee of the Trust arising
under or in connection with this Agreement is limited to and can be enforced
against the Issuer Trustee only to the extent to which it can be satisfied out
of Assets of the Trust out of which the Issuer Trustee is actually indemnified
for the liability. This limitation of the Issuer Trustee's liability applies
despite any other provision of this Agreement (other than section 12(c)) to the
contrary and extends to all liabilities and obligations of the Issuer Trustee in
any way connected with any representation, warranty, conduct, omission,
agreement or transaction related to this Agreement.
(b) Each Underwriter and each of the CBA Parties may not ▇▇▇ the
Issuer Trustee in respect of liabilities incurred by the Issuer Trustee, acting
in its capacity as Issuer Trustee of the Trust, in any capacity other than as
Issuer Trustee of the Trust including seeking the appointment of a receiver
(except in relation to the Assets of the Series Trust), or a liquidator, an
administrator or any similar person to the Issuer Trustee or prove in any
liquidation, administration or arrangements of or affecting the Issuer Trustee
(except in relation to the Assets of the Trust).
(c) The provisions of this section 12 will not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not satisfied
because under the Master Trust Deed, this Agreement or any other Transaction
Document in relation to the Trust or by operation of law there is a reduction in
the extent of the Issuer Trustee's indemnification or exoneration out of the
Assets of the Trust, as a result of the Issuer Trustee's fraud, negligence or
wilful default (as defined in the Series Supplement).
(d) It is acknowledged that the Relevant Parties (as defined in the
Series Supplement) are responsible under the Basic Documents for performing a
variety of obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations and any breach
of representations and warranties under this Agreement) will be considered
fraudulent, negligent or a wilful default for the purpose of section 12(c) to
the extent to which
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the act or omission was caused or contributed to by any failure by any Relevant
Party (other than any person for whom the Issuer Trustee is responsible or
liable for in accordance with any Transaction Document) to fulfil its
obligations relating to the Trust or by any other act or omission of a Relevant
Party or any other such person.
13. Actions by Representative; Notices. Any action by the Underwriters
hereunder may be taken by [▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇] on behalf of the Underwriters,
and any such action taken by [▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney] shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
to [▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇], [ ] [ ] New York [ ] (Facsimile No.: ___________);
Attention:____________ Department. Notices to CBA and the Manager shall be given
to it at Commonwealth Bank of Australia, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇, ▇▇▇▇ (Facsimile No.:(▇▇▇) ▇▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Group
Treasury. Notices to the Issuer Trustee shall be given to it at Perpetual
Trustees Australia Limited, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇ (Facsimile
No.:(▇▇▇) ▇▇▇▇-▇▇▇▇); Attention: Manager, Securitisation.
14. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
15. Submission to Jurisdiction. Each of the CBA Parties and the Issuer
Trustee submits to the non-exclusive jurisdiction of any Federal or State court
in the City, County and State of New York, United States of America, in any
legal suit, action or proceeding based on or arising under this Agreement and
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. Each of the CBA Parties and the Issuer Trustee waives, to the
extent permitted by law, the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of such legal suit, action
or proceedings any objection to the laying of the venue of any such suit, action
or proceeding in any Federal or State court in the City, County and State of New
York, United States of America. To the extent that each of the CBA Parties and
the Issuer Trustee or any of their respective properties, assets or revenues may
have or may hereafter become entitled to, or have attributed to it, any right of
immunity from any legal action, suit or proceeding, from setoff or counterclaim,
from the jurisdiction of any court, from service of process, attachment upon or
prior to judgment, or attachment in aid of execution of judgment,
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or from execution of a judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of a judgment, in any such
jurisdiction, with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with the issuance of the Class A-1
Notes or this Agreement, each of the CBA Parties and the Issuer Trustee hereby
irrevocably and unconditionally waives and agrees not to plead or claim any such
immunity and consents to such relief and enforcement.
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16. Appointments of Process Agent.
(a) Each of the CBA Parties hereby designates and appoints
Commonwealth Bank of Australia, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(Attention: ▇▇▇ ▇▇▇▇▇▇▇▇) (the "CBA Process Agent"), as its authorized agent,
upon whom process may be served in any legal suit, action or proceeding based on
or arising under or in connection with this Agreement, it being understood that
the designation and appointment of Commonwealth Bank of Australia, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (Attention: ▇▇▇ ▇▇▇▇▇▇▇▇) as such authorized agent
shall become effective immediately without any further action on the part of the
each of the CBA Parties. Such appointment shall be irrevocable to the extent
permitted by applicable law and subject to the appointment of a successor agent
in the United States on terms substantially similar to those contained in this
Section 16 and reasonably satisfactory to Salomon. If the CBA Process Agent
shall cease to act as agent for service of process, each of the CBA Parties
shall appoint, without unreasonable delay, another such agent, and notify
Salomon of such appointment. Each of the CBA Parties represents to the
Underwriters that it has notified the CBA Process Agent of such designation and
appointment and that the CBA Process Agent has accepted the same in writing.
Each of the CBA Parties hereby authorizes and directs the CBA Process Agent to
accept such service. Each of the CBA Parties further agrees that service of
process upon the CBA Process Agent and written notice of that service to it
shall be deemed in every respect effective service of process upon it in any
such legal suit, action or proceeding. Nothing in this Section 16 shall affect
the right of any Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law.
(b) The Issuer Trustee hereby designates and appoints C.T. Corporation
System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "IT Process
Agent"), as its authorized agent, upon whom process may be served in any legal
suit, action or proceeding based on or arising under or in connection with this
Agreement, it being understood that the designation and appointment of C.T.
Corporation as such authorized agent shall become effective immediately without
any further action on the part of the Issuer Trustee. Such appointment shall be
irrevocable to the extent permitted by applicable law and subject to the
appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 16 and reasonably satisfactory to
Salomon. If the IT Process Agent shall cease to act as agent for service of
process, the Issuer Trustee shall appoint, without unreasonable delay, another
such agent, and notify Salomon of
-39-
such appointment. The Issuer Trustee represents to the Underwriters that it has
notified the IT Process Agent of such designation and appointment and that the
IT Process Agent has accepted the same in writing. The Issuer Trustee hereby
authorizes and directs the IT Process Agent to accept such service. The Issuer
Trustee further agrees that service of process upon the IT Process Agent and
written notice of that service to it shall be deemed in every respect effective
service of process upon it in any such legal suit, action or proceeding. Nothing
in this Section 16 shall affect the right of any Underwriter or any person
controlling any Underwriter to serve process in any other manner permitted by
law.
17. Currency Indemnity. The obligations of the parties to make
payments under this Agreement are in U.S. dollars. Such obligations shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than U.S. dollars or any other realization in
such other currency, whether as proceeds of set-off security, guarantee,
distributions, or otherwise, except to the extent to which such tender recovery
or realization shall result in the receipt by the party which is to receive such
payment of the full amount of the U.S. dollars expressed to be payable under
this Agreement. The party liable to make such payment agrees to indemnify the
party which is to receive such payment for the amount (if any) by which the full
amount of U.S. dollars exceeds the amount actually received, and, in each case,
such obligation shall not be affected by judgment being obtained for any other
sums due under this Agreement. The parties agree that the rate of exchange which
shall be used to determine if such tender, recovery or realization shall result
in the receipt by the party which is to receive such payment of the full amount
of U.S. dollars expressed to be payable under this Agreement shall be the noon
buying rate in New York City for cable transfers in such foreign currency as
certified for customs purposes by the Federal Reserve Bank of New York of the
business day preceding that on which the judgment becomes a final judgment or,
if such noon buying rate is not available, the rate of exchange shall be the
rate at which in accordance with normal banking procedures [▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇] could purchase United States dollars with such foreign currency on the
business day preceding that on which the judgment becomes a final judgment.
-40-
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof.
Very truly yours,
COMMONWEALTH BANK OF
AUSTRALIA
By:_______________________
Name:
Title:
SECURITISATION ADVISORY SERVICES PTY LIMITED
By:_______________________
Name:
Title:
PERPETUAL TRUSTEE COMPANY LIMITED in its
capacity as Trustee of the Trust
By:_______________________
Name:
Title:
Accepted: [April _], 2001
[▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY]
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
By:___________________________
Name:
Title:
-41-
SCHEDULE I
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
Underwriter
[▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇] US$
................................
[ ] ................................ US$
[ ] ................................ US$
[ ] ................................ US$
===========
Total........................... US$
-42-
SCHEDULE II
List of 128F(9) Associates of the Issuer Trustee
Perpetual Trustees Australia Ltd
Perpetual Trustee Company Ltd
Perpetual Trustees Nominees Ltd
ACT Nominees Ltd
Perpetual Custodians Ltd
Perpetual Trust Services Limited... (formerly Perpetual Trust Limited)
Hunter Nominees Pty Ltd
PT Limited
Perpetrust Nominees Pty Ltd
Perpetual Australia Property Services (NSW) Pty Ltd... (formerly Perpetual
Realty Pty Limited)
Perpetual Service Network Pty Limited Australian Trustees Pty Ltd
Commonwealth Trustees Pty Ltd Perpetual Services Pty Ltd
Perpetual Australia Pty Ltd
Perpetual Nominees Limited... (formerly PTA Nominees Limited)
Perpetual Investment Management Ltd... (formerly Perpetual Management Ltd)
Perpetual Trustees SA Ltd
Perpetual Australia Property Services (Canberra) Pty
Limited Perpetual Australia Property Services (QLD) Pty Limited
Perpetual Australia Property Services (SA) Pty Limited
Queensland Trustees Pty Ltd
Investor Marketplace Limited
Perpetual Fund Services Limited
ASX Perpetual Registrars Limited
Perpetual Superannuation Limited
Perpetual Assets Pty Ltd
Perpetual Asset Management Ltd
Perpetual Trustees Victoria Ltd
Perpetual Executors Nominees Ltd Midway Nominees Pty Ltd
Perpetual Australia Property Services (VIC) Pty Ltd... (formerly Queenstreet
Properties Pty Limited)
Corbun Nominees Pty Ltd
Perpetual Trustees Queensland Ltd Perpetual Trustee Company (Canberra) Ltd
Charleville Leasing Ltd
Perpetual Trustees W.A. Ltd
▇▇▇▇▇▇▇▇ Holdings Pty Ltd
Perpetual Australia Property Services (WA) Pty Ltd... (formerly Perpetual
Property Agency Pty Limited)
Perpetual Custodians WA Pty Ltd
Terrace Guardians Ltd
Selwest Pty Ltd
WA Trustee Nominees Pty Ltd
-43-
SCHEDULE III
List of 128F(9) Associates of the CBA Parties
--------------------------------------------------------------------------------------------------------
Alliance Group Holdings Collateral Leasing Pty Limited Commonwealth Life Limited
Australia
--------------------------------------------------------------------------------------------------------
Antarctic Shipping Pty Ltd Colonial (UK) Trustees Limited Commonwealth Managed
Investments Limited
--------------------------------------------------------------------------------------------------------
ASB Bank Limited Colonial AFS Services Pty Limited Commonwealth Property Limited
--------------------------------------------------------------------------------------------------------
ASB Finance Limited Colonial Asset Finance Pty Limited Commonwealth Securities
(Japan) Pty Limited
--------------------------------------------------------------------------------------------------------
ASB Group Limited Colonial Employee Share Plan Commonwealth Securities
Limited Limited
--------------------------------------------------------------------------------------------------------
ASB Group Limited Colonial Fiji Life Limited COMPAM Property Management Pty
Limited
--------------------------------------------------------------------------------------------------------
ASB Life Limited Colonial Finance (Australia) Computer Fleet Management
Limited
--------------------------------------------------------------------------------------------------------
ASB Management Services Limited Colonial Finance (UK) Limited Comsec Nominees Pty Limited
--------------------------------------------------------------------------------------------------------
ASB Properties Limited Colonial Finance Limited CST Securitisation Management
Limited
--------------------------------------------------------------------------------------------------------
ASB Superannuation Nominees Colonial Financial Corporation CTB Australia Limited
Limited Limited
--------------------------------------------------------------------------------------------------------
Australian Bank Limited Colonial Financial Services Pty Darontin Pty Limited
Limited
--------------------------------------------------------------------------------------------------------
Ayudhya CMG Life Assurance PLC Colonial First State International EDS (Australia) Pty Limited
Assets Limited
--------------------------------------------------------------------------------------------------------
Balga Pty Limited Colonial First State Investment Electronic Financial
Managers (NZ) Limited Technologies Pty Ltd
--------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ CMG Life Insurance Colonial First State Investment Emerald Holding Company
Company Managers (UK) Limited Limited
--------------------------------------------------------------------------------------------------------
Binya Pty Limited Colonial First State Investments EON CMG Life Assurance Bhd
(Fiji) Limited
--------------------------------------------------------------------------------------------------------
BIZserv Pty Limited Colonial First State Investments Fleet Care Services Pty
(NZ) Limited Limited
--------------------------------------------------------------------------------------------------------
Brookhollow Ave Pty Limited Colonial First State Investments Goldstar Mortgage Management
Group Limited Pty Limited
--------------------------------------------------------------------------------------------------------
CBA (Delaware) Finance Colonial First State Managed ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Ltd and its
Incorporated Services Limited subsidiaries
--------------------------------------------------------------------------------------------------------
CBA (Europe) Finance Limited Colonial First State Property ▇▇▇▇▇▇▇▇▇ Investment Company
Limited Pty Limited
--------------------------------------------------------------------------------------------------------
CBA Asia Limited Colonial Healthcare (Fiji) Limited Infravest (No. 1) Limited
-44-
--------------------------------------------------------------------------------------------------------
CBA EDSA IT Assets Partnership Colonial Holding Company (No.2) Pty Infravest (No. 2) Limited
Limited
--------------------------------------------------------------------------------------------------------
CBA Funding (NZ) Limited Colonial Holding Company NZ Limited IPAC Securities Limited
--------------------------------------------------------------------------------------------------------
CBA Indemnity Co. Pty Limited Colonial Holding Company Pty ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industry Funds
Limited Administration Pty Limited
--------------------------------------------------------------------------------------------------------
CBA International Finance Pty Colonial Insurance Services Pty ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Pty Limited
Limited Limited
--------------------------------------------------------------------------------------------------------
CBA Investments (No 2) Pty Ltd Colonial International Holdings Pty Leaseway Australia Pty Limited
Limited
--------------------------------------------------------------------------------------------------------
CBA Investments Limited Colonial Investment Services ▇▇▇▇▇ and Associates Limited
Limited
--------------------------------------------------------------------------------------------------------
CBA Rail & Tram Company Pty Colonial Investments Holding Pty Micropay Pty Limited
Limited Limited
--------------------------------------------------------------------------------------------------------
CBA Specialised Financing Limited Colonial LGA Holdings Limited National Bank of Fiji Limited
--------------------------------------------------------------------------------------------------------
CB-CLA Limited Colonial Life (NZ) Limited Perpetual Stock Pty Limited
--------------------------------------------------------------------------------------------------------
CBFC Limited Colonial Mutual Funds Limited Property Internet PLC
--------------------------------------------------------------------------------------------------------
Central Real Estate Holdings Colonial Mutual Superannuation Pty PT Astra CMG Life
Corporation Limited
--------------------------------------------------------------------------------------------------------
Central Real Estate Holdings Group Colonial PCA Holdings Pty Limited PT Bank BII Commonwealth
--------------------------------------------------------------------------------------------------------
China Life CMG Life Assurance Colonial PCA Services Limited Retail Investor Pty Limited
Company Limited
--------------------------------------------------------------------------------------------------------
Chullora Equity Investments Colonial Portfolio Services Limited SBV Asia Limited
(No.2) Pty Limited
--------------------------------------------------------------------------------------------------------
Chullora Equity Investments Colonial Promotions Pty Limited Senator House Investments (UK)
(No.3) Pty Limited Limited
--------------------------------------------------------------------------------------------------------
CIF (▇▇▇▇▇▇▇▇▇) Pty Limited Colonial Protection Insurance Pty Share Direct Nominees Pty
Limited Limited
--------------------------------------------------------------------------------------------------------
CISL (▇▇▇▇▇▇▇▇▇) Pty Limited Colonial Service Corporation New Share Investments Pty Limited
Zealand Limited
--------------------------------------------------------------------------------------------------------
CLL Investments Limited Australia Colonial Services (Fiji) Limited Sovereign Limited
--------------------------------------------------------------------------------------------------------
CMG Asia Life Holdings Limited Colonial Services Pty Limited Sparad (No. 20) Pty Limited
--------------------------------------------------------------------------------------------------------
CMG Asia Limited Colonial Stockbroking Limited Sparad (No. 24) Pty Limited
--------------------------------------------------------------------------------------------------------
-45-
--------------------------------------------------------------------------------------------------------
CMG Asia Pensions and Retirements Commonwealth Custodial Services Sparad (No. 29) Pty Limited
Ltd Limited
--------------------------------------------------------------------------------------------------------
CMG Asia Pty Limited Commonwealth Development Bank of Sparad (No. 30) Pty Limited
Australia Limited
--------------------------------------------------------------------------------------------------------
CMG CH China Funds Management Commonwealth Funds Management Sparad (No. 31) Pty Limited
Limited Limited
--------------------------------------------------------------------------------------------------------
CMG First State (HK) LLC Commonwealth Funds Management State Bank of New South Wales
Limited Group Limited
--------------------------------------------------------------------------------------------------------
CMG First State Investment Commonwealth Insurance Holdings The Colonial Mutual Life
Managers (Asia) Limited Limited Assurance Society Limited
--------------------------------------------------------------------------------------------------------
CMG First State Investments (Hong Commonwealth Insurance Limited Wilshire 10880 Corporation
Kong) Ltd
--------------------------------------------------------------------------------------------------------
CMG First State Singapore Ltd Commonwealth Investment Services Wilshire 10960 Corporation
Limited
--------------------------------------------------------------------------------------------------------
CMG Life Insurance Co Inc Commonwealth Investment Services
Limited Group
--------------------------------------------------------------------------------------------------------
CMG ▇▇▇▇▇ (China) Investment Commonwealth Investments Pty
Management Limited Limited
--------------------------------------------------------------------------------------------------------
-▇▇-
▇▇▇▇▇▇▇ ▇-▇
Form of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ Transaction Opinion
[April ___], 2001
To: Persons listed on Annex A hereto
Series 2001-1G Medallion Trust
Ladies and Gentlemen:
We have acted as special counsel to Commonwealth Bank of Australia
("CBA") and Securitisation Advisory Services Pty. Limited (the "Trust Manager")
in connection with the issuance by Perpetual Trustee Company Limited (the
"Issuer Trustee"), in its capacity as trustee of the Series 2001-1G Medallion
Trust (the "Trust"), of the Class A-1 Mortgage Backed Floating Rate Notes ("the
"Class A-1 Notes"). The Trust will be created pursuant to the Master Trust Deed,
dated October 8, 1997 between the Issuer Trustee and the Trust Manager (the
"Master Trust Deed"), the Series Supplement, dated _______, 2001, among the
Issuer Trustee, the Trust Manager and CBA, as seller and servicer, which sets
forth the specific provisions regarding the Trust and details the provisions of
the Class A-1 Notes (the "Series Supplement"). The Class A-1 Note Trust Deed,
dated [April ___], 2001, among the Issuer Trustee, the Class A-1 Note Trustee
and the Trust Manager (the "Class A-1 Note Trust Deed") provides for the
issuance of the Class A-1 Notes in accordance with the terms and conditions
attached thereto. The Class A-1 Notes will be secured by the assets of the
Trust, which will consist primarily of a pool of variable and fixed rate
residential housing loans originated by CBA and Colonial State Bank ("Colonial")
(the "Housing Loans") secured by mortgaged properties located in the
Commonwealth of Australia.
This opinion is being rendered pursuant to Sections 6(i) and 6(j) of
the Underwriting Agreement (as defined herein).
The Trust Manager has caused the Issuer Trustee to sell the Class A-1
Notes to [▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney], as representative (the "Representative") for
themselves and the other underwriters named in the Underwriting Agreement dated
[April ___], 2001, among CBA, the Trust Manager, the Issuer Trustee and the
Representative (the "Underwriting Agreement", and together with the Master Trust
Deed, the Series Supplement, the Security Trust Deed, the Agency Agreement, the
Standby Redraw Facility Agreement, the Liquidity Facility Agreement, the
Interest Rate Swaps, the Currency Swap, the Class A-1 Note Trust Deed, the form
of the Class A-1 Notes and the [PMI Mortgage Insurance Ltd.] Master Policy
collectively, the "Agreements"). Capitalized terms not defined herein have the
meanings set forth in the Agreements.
The Trust 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 (the "Securities Act"), a registration
statement (No. 333-____) on Form S-11 for the registration of the Class A-1
Notes, which registration statement has become effective, and a copy of which,
as amended to the date hereof, has heretofore been delivered to the
Representatives. The Trust Manager has filed with the Commission pursuant to
Rule 424(b) promulgated under the Securities Act a prospectus dated _________,
2001 (the "Final Prospectus"), which contains the information previously omitted
from the prospectus dated [___ _], 2001 (the "Preliminary Prospectus") pursuant
to Rule 430A promulgated under the Securities Act, relating to the Class A-1
Notes and the method of distribution thereof. Such registration statement,
including exhibits thereto and any information incorporated therein by
reference, as amended at the date hereof, is hereinafter called the
"Registration Statement"; the Final Prospectus, together with any amendment
thereof or supplement thereto authorized by the Trust Manager on or prior to the
Closing Date for use in connection with the offering of the Class A-1 Notes, is
hereinafter called the "Prospectus."
In connection with rendering this opinion letter, we have examined the
Agreements and such other documents as we have deemed necessary. As to matters
of fact, we have examined and relied upon the accuracy of the representations of
parties to the Agreements contained therein and, where we have deemed
appropriate, separate additional representations or certifications of parties to
the Agreements, their respective officers and representatives or public
officials. In rendering this opinion letter, we have also assumed (i) the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of natural persons and the conformity to the
originals of all documents submitted to us as copies, (ii) the due
authorization, execution and delivery, and the necessary power with respect
thereto, and the enforceability of such documents, (iii) the conformity to the
requirements of the Agreements, of the mortgages, certificates of title and
other documents contained in the housing loan packets held by CBA on behalf of
the Issuer Trustee, (iv) the performance by all parties to the Agreements in
accordance with their covenants and agreements made therein, and (v) that there
is not any other agreement that materially supplements or otherwise modifies the
agreements expressed in the Agreements.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the law of the State of New York and the federal
law of the United States, nor do we express any opinion concerning the
application of the "doing business" laws or the securities laws of any
jurisdiction other than the federal securities laws of the United States and, in
each case, as in existence on the date hereof. In rendering the opinion set
forth below, as to matters governed by the laws of the Commonwealth of Australia
or the laws of any of the States or Territories thereof or other laws that may
be applicable to CBA or the Trust Manager, we have relied without independent
investigation on the opinion letter of ▇▇▇▇▇▇▇ ▇▇▇ dated the date hereof,
Australian counsel to CBA and the Trust Manager and as to matters governed by
the laws of the Commonwealth of Australia or the laws of any of the States or
Territories thereof or other laws that may be applicable to the Issuer Trustee,
we have relied without independent investigation on the opinion letter of
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ dated the date hereof, Australian counsel to the Issuer
Trustee. A copy of each such
-A-1-2-
opinion is annexed hereto. To the extent that we have relied on the foregoing
opinion letters, the opinions set forth below are subject to the same
assumptions, qualifications, exceptions and other limitations set forth therein.
We do not express any opinion on any issue not expressly addressed below.
Based upon the foregoing, it is our opinion that:
(a) The Registration Statement has become effective under the
Securities Act, and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued or threatened under Section 8(d)
of the Securities Act.
(b) The Registration Statement and the Prospectus, as of their
respective effective or issue date, other than financial or
statistical information contained therein, complied as to
form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations
thereunder.
(c) To the best of our knowledge, there are no material
contracts, indentures, or other documents of a character
required to be described or referred to under either the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
(d) The statements in the Prospectus under the captions
"Description of the Class A-1 Notes" and "Description of the
Transaction Documents" insofar as they purport to summarize
certain terms of the Class A-1 Notes and the applicable
Agreements, constitute a fair summary of the provisions
purported to be summarized.
(e) The statements contained in the Prospectus under the
headings "ERISA Considerations", "Legal Investment
Considerations" and "United States Federal Income Tax
Matters", to the extent that they constitute matters of
federal law or legal conclusions with respect thereto, while
not purporting to discuss all possible consequences of
investment in the Class A-1 Notes, are correct in all
material respects with respect to those consequences or
matters that are discussed therein.
(f) The Trust is not, and will not as a result of the offer and
sale of the Class A-1 Notes as contemplated in the
Underwriting Agreement or as a result of the consummation of
the transactions contemplated by the terms of the Agreements
-A-1-3-
become, required to be registered as an "investment
company", under the Investment Company Act of 1940, as
amended.
(g) The Class A-1 Note Trust Deed has been duly qualified under
the Trust Indenture Act of 1939, as amended.
(h) No consent, approval, authorization or order of any federal
court or governmental agency or body is required (i) for the
consummation by CBA or the Trust Manager of the transactions
contemplated by the terms of the Agreements or (ii) for the
consummation of the transactions contemplated by the
Underwriting Agreement in connection with the issuance or
sale of the Class A-1 Notes by the Issuer Trustee, except,
in each case, (a) such as have been obtained under the
Securities Act and (b) such as may be required under the
blue sky laws of any jurisdiction in connection with the
purchase and the offer and sale of the Class A-1 Notes by
the Underwriters, as to which we express no opinion.
(i) To the extent that the execution and delivery of the
Underwriting Agreement are matters to be determined under
New York law, the Underwriting Agreement has been duly and
validly executed and delivered and constitutes a legal,
valid and binding obligation of each of CBA, the Issuer
Trustee and the Trust Manager. In rendering the opinions
expressed above we express no opinion regarding any
severability provision in the Underwriting Agreement or
regarding the legal, valid and binding effect or the
enforceability of any indemnification provision in the
Underwriting Agreement to the extent that any such
provisions may be deemed to cover matters under the federal
securities laws.
(j) The offer, sale and delivery of the A$ Securities to the
dealers under the Dealer Agreement and the initial resale of
the A$ Securities by the dealers under the Dealer Agreement
contemplated by the Dealer Agreement and the offer, sale,
delivery and initial resale of any Redraw Bonds that are
issued as contemplated by the Agreements do not require
registration under the Securities Act.
The opinions rendered herein are limited in all respects to the laws
and facts existing on the date hereof. By rendering this opinion, we do not
undertake to advise you with respect to any other matter or of any change in
such laws or facts or in the interpretations of such laws which may occur after
the date hereof.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be
-A-1-4-
furnished to any other person or entity, nor may any portion of this opinion
letter be quoted, circulated or referred to in any other document.
Very truly yours,
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇/NM
-A-1-5-
Annex A
Commonwealth Bank of Australia
Securitisation Advisory Services Pty. Limited
The Directors, Perpetual Trustee Company Limited
[▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney] as Representative of the several underwriters
▇▇▇▇▇'▇ Investor Service
Standard Poor's (Australia) Pty Limited
Fitch Inc
P.T. Limited
The Bank of New York, New York branch
-A-1-6-
ANNEX B
OPINION OF ▇▇▇▇▇▇▇ ▇▇▇
-A-1-7-
ANNEX C
OPINION OF MALLESONS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-A-1-8-
EXHIBIT A-2
Form of ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ 10b-5 Opinion
[April ____], 2001
To: Persons Listed on Annex A hereto
Series 2001-1G Medallion Trust
Ladies and Gentlemen:
We have acted as special counsel to Commonwealth Bank of Australia
("CBA") and Securitisation Advisory Services Pty. Limited (the "Trust Manager")
in connection with the issuance by Perpetual Trustee Company Limited, in its
capacity as trustee (the "Issuer Trustee") of the Series 2001-1G Medallion Trust
(the "Trust"), of the Class A-1 Mortgage Backed Floating Rate Notes (the "Class
A-1 Notes"). The Trust will be created pursuant to the Master Trust Deed, dated
October 8, 1997 between the Issuer Trustee and the Trust Manager (the "Master
Trust Deed") and the Series Supplement, dated _____ __, 2001, among the Issuer
Trustee, as trustee, the Trust Manager, as trust manager, and CBA, as seller and
servicer, which sets forth the specific provisions regarding the Trust and
details the provisions of the Class A-1 Notes (the "Series Supplement"). The
Class A-1 Note Trust Deed, dated [April __], 2001, among the Issuer Trustee, the
Class A-1 Note Trustee and the Trust Manager (the "Class A-1 Note Trust Deed")
provides for the issuance of the Class A-1 Notes in accordance with the terms
and conditions attached thereto. The Class A-1 Notes will be secured by the
assets of the Trust, which will consist primarily of a pool of variable and
fixed rate residential housing loans originated by CBA and Colonial State Bank
("Colonial") (the "Housing Loans") secured by mortgaged properties located in
the Commonwealth of Australia.
The Trust Manager has caused the Issuer Trustee to sell the Class A-1
Notes to [▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney] as representative (the "Representative") for
themselves and the other underwriters named in the Underwriting Agreement dated
[April __], 2001, among CBA, the Trust Manager, the Issuer Trustee and the
Representative (the "Underwriting Agreement", and together with the Master Trust
Deed, the Series Supplement, the Security Trust Deed, the Agency Agreement, the
Standby Redraw Facility Agreement, the Liquidity Facility Agreement, the
Interest Rate Swaps, the Currency Swap, the Class A-1 Note Trust Deed, the form
of the Class A-1 Notes and the PMI Master Policy, collectively, the
"Agreements"). Capitalized terms not defined herein have the meanings set forth
in the Agreements.
The Trust 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 (the "Securities Act"), a registration
statement (No. 333- _____) on Form S-11 for the registration of the Class A-1
Notes, which registration statement has become effective, and a copy of which,
as amended to the date hereof, has heretofore been delivered to the
Representative. The Trust Manager has filed with the Commission pursuant to Rule
424(b)(4) promulgated under the Securities Act a prospectus dated ______ __,
2001 (the "Final
Prospectus"), which contains the information previously omitted from the
prospectus dated [Marchl ___], 2001 (the "Preliminary Prospectus") pursuant to
Rule 430A promulgated under the Securities Act, relating to the Class A-1 Notes
and the method of distribution thereof. Such registration statement, including
exhibits thereto and any information incorporated therein by reference, as
amended at the date hereof, is hereinafter called the "Registration Statement";
the Final Prospectus, together with any amendment thereof or supplement thereto
authorized by the Trust Manager on or prior to the Closing Date for use in
connection with the offering of the Class A-1 Notes, is hereinafter called the
"Prospectus."
Because of the wholly or partially non-legal character of many
determinations involved in the preparation of the Registration Statement and the
Prospectus, we are not advising herein with respect to and do not assume any
responsibility herein for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus and make no
representation herein that we have otherwise independently verified the
accuracy, completeness or fairness of such statements. As to matters of fact, we
have examined and relied upon the accuracy of the representations of parties to
the Agreements contained therein and, where we have deemed appropriate, separate
additional representations or certifications of parties to the Agreements, their
respective officers and representatives or public officials. In particular and
without limiting the foregoing, we express no advice as to any such accounting,
financial or statistical information contained in the Registration Statement or
the Prospectus, and we have not examined any accounting, financial or
statistical records from which the information and statements included therein
were derived.
We do not act as general counsel to CBA or the Trust Manager. In our
representation of CBA and the Trust Manager in connection with the transactions
contemplated by the Agreements, however, we met in conferences and participated
in telephone conversations with representatives of parties to the Agreements,
the Underwriters and their respective counsel in addition to us. During those
conferences and telephone conversations, the contents of the Registration
Statement and the Prospectus and related matters were discussed. With respect to
the accuracy, completeness and fairness of the information relating to the
Security Trustee, the Issuer Trustee, the Class A-1 Note Trustee, the Mortgage
Insurers and [Citibank N.A. (NY branch)] contained in the Prospectus under the
captions "Description of the Transaction Documents - The Security Trust Deed -
General", "The Issuer Trustee, Commonwealth Bank and the Manager - The Issuer
Trustee", "Description of the Transaction Documents - The Class A-1 Note
Trustee", "The Mortgage Insurance Policies - Description of The Mortgage
Insurers" and "Description of the Class A-1 Notes - The Currency Swaps -
[Citibank N.A. (NY branch)]" respectively, we have relied exclusively on those
conferences and telephone conversations, as well as certificates from officers
thereof and no information inconsistent therewith has come to our attention. In
addition, we have examined the Agreements and reviewed various opinions rendered
and certificates delivered in connection with the issuance of the Class A-1
Notes. We have not otherwise undertaken any procedures other than those
specified above that were intended or likely to elicit information concerning
the accuracy, completeness or fairness of the statements made in the
Registration Statement or the Prospectus. We have assumed that there is not and
will not be any other agreement that materially supplements or otherwise
modifies the agreements expressed in the Agreements.
-A-2-2-
Based upon and subject to the foregoing, and further based upon our
understanding of applicable law and the experience we have gained in our
practice thereunder, we hereby advise you that no information has come to our
attention that causes us to believe that the Registration Statement, as of the
effective date thereof or as of the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein not misleading or that the
Final Prospectus, as of the date thereof or as of the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits 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.
This letter is provided for the sole benefit of each addressee hereof,
and no other person or entity is entitled to rely hereon. Copies of this letter
may not be furnished to any other person or entity, nor may any portion of this
letter be quoted, circulated or referred to in any other document.
Very truly yours,
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇/NM
-A-2-3-
Annex A
Commonwealth Bank of Australia
Securitisation Advisory Services Pty. Limited
The Directors, Perpetual Trustee Company Limited
P.T. Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney as Representative of the several underwriters
-A-2-4-
EXHIBIT B
Form of ▇▇▇▇▇▇▇ ▇▇▇ Transaction Opinion
[▇▇▇▇▇▇▇ ▇▇▇ TO PROVIDE DRAFT]
Our Reference: [174/801/1454036]
Your Reference:
Partner/Solicitor Contact:
[▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇]
[__] April 2001
To: The addressees specified in the Schedule
Dear Ladies and Gentlemen
SERIES 2001-1G MEDALLION TRUST: SECURITISATION
1. Our Role
We have acted as legal advisers to Commonwealth Bank of Australia (as
Seller, Servicer, arranger and in various other capacities, but not as
Lead Manager), and Securitisation Advisory Services Pty Limited, in
connection with the Transaction Documents and the proposed issue of
Notes and Redraw Bonds by the Trustee in relation to the above matter.
2. Definitions and Interpretation
2.1 Definitions
In this opinion, unless otherwise expressly stated:
"Agency Agreement" means the Agency Agreement dated as of__ April 2001
between the Trustee, the Manager, The Bank of New York, New York
Branch (as Class A-1 Note Trustee, Class A-1 Note Registrar, Agent
Bank and Principal Paying Agent) and The Bank of New York, London
Branch (as Paying Agent).
"Bank" means the Commonwealth Bank of Australia, ABN 48 123 123 124.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed,
including the form of the Class A-1 Notes and the Terms and Conditions
of the Class A-1 Notes appearing in Schedule 1 and 2 respectively
thereof, dated as of__ April 2001 between the Trustee, the Class A-1
Note Trustee and the Manager.
"Class A-1 Note Purchase Agreement" means the Class A-1 Note Purchase
Agreement dated__ April 2001 between the Manager, the Trustee and
[▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney entity] [ ].
"Class A-1 Note Trustee" means The Bank of New York, New York Branch.
"Credit Support Annex" means each of the Credit Support Annexes
annexed to the Currency Swap Agreements.
"Currency Swap Agreements" mean the two ISDA Master Agreements dated 7
April 2001 between the Trustee, [ ], the Bank and the Manager.
"Dealer Agreement" means the Dealer Agreement dated_ April 2001
between the Trustee, the Bank, the Manager,[ Macquarie Bank Limited,
ACN ▇▇▇ ▇▇▇ ▇▇▇] and [UBS Warburg (Australia) Limited, ACN 008 582
705].
"Interest Rate Swap Agreement" means the ISDA Master Agreement dated
31 ______2001 between the Bank, the Trustee and the Manager.
"Liquidity Facility Agreement" means the Liquidity Facility Agreement
dated 31 ______2001 between the Bank, the Manager and the Trustee.
"Manager" means Securitisation Advisory Services Pty Limited, ABN 88
064 133 946.
"Master Agreement Amending Agreement" means the Master Agreement
Amending Agreement dated _ April 2001 between the Bank and [ ].
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee and the Manager (as amended).
["Placement Agency Agreement" means the Placement Agency Agreement
dated_ April 2001 between the Bank, the Manager, the Trustee and
[▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇] [ ].
"PMI" means PMI Mortgage Insurance Ltd., [ACN ▇▇▇ ▇▇▇ ▇▇▇].
"PMI Master Policy" means the Lenders' Mortgage Insurance Provision
dated [__] April 2001 between the Bank, the Trustee and PMI.
"Relevant Companies" means the Bank and the Manager (each a "Relevant
Company").
"Relevant Jurisdictions" means the State of New South Wales, the
Australian Capital Territory and the federal laws of the Commonwealth
of Australia (and, in respect of paragraphs 7(b), (g), (h), (o) and
(t) only, means all States and Territories of Australia and the
federal laws of the Commonwealth of Australia).
-B-2-
"Security Trust Deed" means the Security Trust Deed dated __ _____
2001 between the Security Trustee, the Trustee, the Manager and the
Class A-1 Note Trustee.
"Security Trustee" means P.T. Limited, [ACN 004 454 666].
"Series Supplement" means the Series Supplement in relation to the
Series Trust dated_ _____ 2001 between the Trustee, the Bank and the
Manager.
"Series Trust" means the trust established under the Master Trust Deed
and the Series Supplement, known as the Series 2001-1G Medallion
Trust.
"Standby Redraw Facility Agreement" means the Standby Redraw Facility
Agreement dated__ _____ 2001 between the Bank, the Manager and the
Trustee.
"Transaction Documents" means:
(a) the Master Trust Deed (in so far as it relates to the Series
Trust);
(b) the Series Supplement;
(c) the Security Trust Deed;
(d) the Standby Redraw Facility Agreement;
(e) the Liquidity Facility Agreement;
(f) the Interest Rate Swap Agreement;
(g) the Currency Swap Agreement;
(h) the PMI Master Policy;
(i) the Dealer Agreement;
(j) the Agency Agreement;
(k) the Class A-1 Note Trust Deed; and
(l) the Underwriting Agreement.
(m) the Class A-1 Purchase Agreement ; and
(n) the Placement Agency Agreement.
"Trustee" means Perpetual Trustee Company Limited, [ABN 42 000 001
007], in its capacity as trustee of the Series Trust.
-B-3-
"Underwriting Agreement" means the Underwriting Agreement dated [__]
April 2001 between the Bank, the Manager, the Trustee and [▇▇▇▇▇▇▇
▇▇▇▇▇ Barney], as representative of the several Underwriters listed in
Schedule 1 thereto.
2.2 Master Trust Deed and Series Supplement Definitions
Words and expressions which are defined in the Master Trust Deed and
the Series Supplement have the same meanings when used in this
opinion, unless otherwise defined herein.
3. Documents Examined
We have examined and relied on:
(a)(i) a fax copy of the front and attestation pages of each of the
Agency Agreement, the Currency Swap Agreements (in relation
to the execution thereof by [currency swap provider]) and
the Class A-1 Note Trust Deed as executed and an execution
draft of each of the Agency Agreement, the Currency Swap
Agreements and the Class A-1 Note Trust Deed in a form
agreed between the parties thereto; and
(ii) an original execution copy, a fax copy or a photocopy of
each of the other Transaction Documents (including the
Currency Swap Agreements executed by the Bank, the Manager
and the Trustee), the Master Agreement Amending and the Sale
Notice, as executed;
(b) a copy of the constitution of each Relevant Company;
(c) an original execution copy, a fax copy or a photocopy of:
(i) a power of attorney dated 17 November 1997 given by the Bank
appointing attorneys for the purposes of executing and
delivering the Transaction Documents to which the Bank is a
party on behalf of the Bank; and
(ii) a power of attorney dated__ [April] 2001 given by the
Manager appointing attorneys for the purposes of executing
and delivering the Transaction Documents to which the
Manager is a party on behalf of the Manager;
(collectively the "Powers of Attorney"); and
(iii) powers of attorney dated__ April 2001 executed by the Bank
appointing attorneys in favour of the Trustee for the
purposes of, amongst other things, executing Mortgage
Transfers and substantially in the form contained in
Schedules 2, 3 and 4 respectively of the Series Supplement
(the "Perfection of Title Powers of Attorney");
-B-4-
(d)(i) a certified extract of the minutes of a meeting of the
board of directors of the Manager relating to the entering
into by it of the Transaction Documents to which it is a
party; and
(ii) a certified extract of the minutes of meeting of the board
of directors of the manager relating to the entering into by
it of the Placement Agency Agreement and the Class A-1
Purchase Agreement;
(e) a certificate by the secretary or a director of the Manager,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ See or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, that the
resolutions set out in the above minutes were duly passed;
that all provisions contained in the Corporations Law and
the constitution of the Manager relating to the declaration
of directors' interests and power of interested directors to
vote were duly observed; that such resolutions have not been
amended, modified or rescinded and are in full force and
effect; that the persons signing the Power of Attorney by
the Manager were directors, or a secretary and director, of
the Manager and that the Power of Attorney has not been
revoked;
(f) a certificate from the secretary of the Bank stating that:
the execution of the Power of Attorney by the Bank and the
Perfection of Title Powers of Attorney was duly authorised
by the board of directors of the Bank; that the witnesses to
the fixing of the common seal of the Bank to the Power of
Attorney by the Bank and the Perfection of Title Powers of
Attorney were directors, or a director and secretary, of the
Bank at the time of execution thereof and that none of the
Power of Attorney by the Bank or the Perfection of Title
Powers of Attorney have been revoked;
(g) searches of the public records of the Relevant Companies on
file at the office of the Australian Securities and
Investments Commission conducted by our agents, ▇▇▇▇▇▇▇▇ &
Co on [__]______ 2001; and
(h) a fax copy or email of the legal opinions of:
(i) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ dated [__] April 2001 in
relation to (amongst other things) the
enforceability of the obligations of each of the
Trustee and the Security Trustee under the
Transaction Documents to which it is expressed to
be a party; and
(ii) senior internal counsel of [ ] dated on or about
[__] April 2001 relating to (amongst other things)
the due execution and delivery by [ ] of each
Currency Swap Agreement;
Except as stated herein, we have not examined any contracts or other documents
entered into by or affecting any Relevant Company or [ ] or any corporate
records of any Relevant Company or [ ] and we have not made any other inquiries
concerning any Relevant Company or [ ]. In particular, we have not investigated
whether any Relevant Company or[ ], by reason of the transactions contemplated
by or by reason of its obligations under any Transaction Document to which it is
a party,
-B-5-
will be in breach of its obligations under any other contract or document. In
addition, we have not made inquiries regarding the solvency or otherwise of [ ].
4. Relevant Jurisdictions
This opinion relates only to the laws of the Relevant Jurisdictions as
in force at the date of this opinion and references to "law",
"Courts", "jurisdiction", "Australian law", "Australian" and
"Australia" and cognate expressions should be read accordingly.
5. Assumptions
This opinion assumes:
(a) the genuineness of all signatures and the authenticity and
completeness of all documents submitted to us as originals;
(b) the conformity to originals of all documents supplied to us
as certified, photocopied, conformed or fax copies, the
authenticity and completeness of the originals of such
documents, and that none of such documents have been
terminated, amended or revoked;
(c) the capacity, power and authority of each of the parties to
the Transaction Documents, other than the Relevant
Companies;
(d) the due execution and delivery of the Transaction Documents
by all parties thereto, other than the Relevant Companies
and the delivery of the Transaction Documents the Master
Agreement Amending Agreement and the Sale Notice on behalf
of each Relevant Company;
(e) the Transaction Documents constitute legal, valid and
binding obligations of all parties to them (other than the
Relevant Companies and [ ]) enforceable against each such
party (other than the Relevant Companies and []) in
accordance with their terms;
(f) the performance by each Relevant Company or [ ] of any
obligation under the Transaction Documents in any
jurisdiction outside the Relevant Jurisdictions will not be
illegal or ineffective under the laws of that jurisdiction
and that no law of a jurisdiction, other than a Relevant
Jurisdiction, affects any of the conclusions stated below;
(g) in relation to other than paragraph 7(o) of this opinion:
(i) no Relevant Company has passed a voluntary
winding_up resolution and no petition has been
presented to or order made by a Court for
winding_up any Relevant Company;
(ii) no receiver or administrator has been appointed in
relation to or in connection with a Relevant
Company; and
-B-6-
(iii) the Australian Prudential Regulation Authority
("APRA") has not appointed a person to take
control of the Bank's business or appointed an
administrator to take control of the Bank's
business under section 13A(1) of the Banking Act,
1959 (Commonwealth), and the Federal Court of
Australia has not authorised APRA to assume
control of, and to carry on, the business of the
Bank under section 65(2) of the Banking Act,
(paragraphs 5(g)(i) and (ii) should not be understood to
limit paragraph 7(i) of this opinion). In this regard, your
attention is drawn to paragraph 7(i) of this opinion which
states (in summary) that the inspection of ▇▇▇▇▇▇▇▇ & Co.
does not disclose any filing in respect of the matters
referred to in paragraphs 5(g)(i) and (ii);
(h) in relation to paragraph 7(o) of this opinion and the
transactions (as defined in the Corporations Law) under
which the Mortgage Loan Rights are assigned in equity to the
Trustee:
(i) the Bank and the Trustee are not insolvent (as
defined in the Corporations Law) at a time when
such a transaction is entered into or an act is
done, or an omission is made, for the purpose of
giving effect to such a transaction;
(ii) neither the Bank nor the Trustee becomes insolvent
because of, or because of matters including, the
entering into of such a transaction or a person
doing an act, or making an omission, for the
purpose of giving effect to the transaction;
(iii) the assumptions in paragraph 5(g) are correct in
relation to the Bank up to and including the
acceptance by the Trustee of the offer contained
in the Sale Notice and the assumptions in
paragraphs 5(g)(i) and (ii) can also be made in
relation to the Trustee up to and including that
point in time; and
(iv) no security interest or other third party interest
exists over or in respect of the Mortgage Loan
Rights,
(paragraph 5(h)(i) and (iv) should not be understood to
limit paragraph 7(i) of this opinion);
(i) the inspection by ▇▇▇▇▇▇▇▇ & Co. of the public records of
the Relevant Companies on file at the office of the
Australian Securities and Investments Commission has been
properly carried out. In this regard, ▇▇▇▇▇▇▇▇ & Co are our
regular search agents, and we believe them to be competent
to undertake this task;
(j) the assumptions set out in section 129 of the Corporations
Law are correct in so far as they affect this opinion,
including that:
-B-7-
(i) at all relevant times, each Relevant Company's
constitution has been complied with;
(ii) a person who appears from information provided by
each Relevant Company that is available to the
public from the Australian Securities and
Investments Commission to be a director or
secretary of a Relevant Company has been duly
appointed and has authority to exercise the powers
and perform the duties customarily exercised or
performed by a director or secretary of a similar
company;
(iii) a document, has been duly executed by a Relevant
Company if:
A. the document appears to have been signed
by either 2 directors of the Relevant
Company or a director and a secretary of
the Relevant Company; or
B. the seal of the Relevant Company appears
to have been fixed to that document and
the fixing of the seal appears to have
been witnessed by either 2 directors of
the Relevant Company or a director and a
secretary of the Relevant Company; and
(iv) the officers and agents of the Relevant Company
properly perform their duties to the Relevant
Company.
In this regard, we confirm that:
(v) the Power of Attorney and each Perfection of Title
Power of Attorney executed by the Bank appears to
have had the seal of the Bank fixed to it, and the
fixing of the seal appears to have been witnessed
by 2 persons who appear from the searches referred
to in paragraph 3(g) to be directors or a director
and a secretary of the Bank;
(vi) the Power of Attorney executed by the Manager
appears to be signed by 2 persons who appear from
the searches referred to in paragraph 3(g) to be
directors or a director and a secretary of the
Manager.
These matters are also confirmed in the certificates
referred to in paragraphs 3(e) & (f) above.
There is nothing in the documents referred to in paragraphs
3(d), (e) or (f) above that would lead us to believe that
any of the assumptions in this paragraph 5(j) are incorrect.
In any event, you are entitled to make the assumptions in
section 129 of the Corporations Law in relation to dealings
with a Relevant Company unless, at the time of the dealing,
you knew or suspected that the assumption was incorrect;
(k) no Relevant Company, nor any other party to any of the
Transaction Documents, has repudiated or terminated its
obligations under any
-B-8-
Transaction Document or accepted the repudiation or
termination by any other party of that party's obligations
under any Transaction Document, or purported to do any of
the above;
(l) there has been no written, oral or other arrangement,
agreement or understanding under which the terms of any of
the obligations under the Transaction Documents are in whole
or part varied or waived, whether conditionally or
unconditionally;
(m) there has been no express or implied agreement by any person
that would vary the priority rules applying on enforcement
of, or the distribution of proceeds under, the Security
Trust Deed that would otherwise be applicable in the absence
of any such agreement;
(n) for the purposes of paragraphs 7(j) to (w) inclusive (other
than paragraphs 7(o), (s) and (v)), the representations and
warranties as to matters of fact contained in the
Transaction Documents are true and correct;
(o) all Transaction Documents and transactions and dispositions
contemplated by them which are liable for duty will be duly
stamped in all applicable States and Territories of
Australia (in this regard, please refer to our separate
opinion on the stamp duty aspects of, amongst other things,
the Transaction Documents);
(p) the Powers of Attorney will be registered in New South
Wales. In this regard we confirm that we will attend to
registration of the Powers of Attorney in New South Wales in
due course;
(q) each certificate on which we have expressed reliance is and
remains true and correct;
(r) the opinions of Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and the senior
internal counsel of []referred to in paragraph 3(h) are
correct, without reference to the assumptions and
qualifications contained therein;
(s) each Transaction Document represents the intention of the
parties to it and that the parties have not in fact made
some other different and separate contract between them and
agreed that the relevant Transaction Document should not
give rise to legally enforceable rights or liabilities;
(t) for the purposes of paragraph 7(o) of this opinion, each
Mortgage Loan referred to in the Schedule to the Sale Notice
is insured under a Mortgage Insurance Policy and, in the
case of the Mortgage Insurance Policies issued by GEMI, GEMI
has consented to the assignment of the Mortgage Loans to the
Trustee. We have been instructed by the Manager that this is
the case;
(u) the only collateral transferred under a Credit Support Annex
is collateral referred to in paragraphs 13(b)(ii)(A) - (D)
and (I) of each Credit Support Annex. Upon any transfer of
collateral to the Trustee under a Credit Support
-B-9-
Annex, the collateral referred to in Paragraph 13(b)(ii)(A),
(B), (C) or (D) of the Credit Support Annex will be
registered in the name of the Trustee or in the name of the
Trustee's Custodian (as defined in the Credit Support Annex)
and the collateral referred to in Paragraph 13(b)(ii)(I) of
the Credit Support Annex will be held in an account in the
name of the Trustee or the Trustee's Custodian; and
(v) each person who has signed a Transaction Document the Master
Agreement Amending Agreement and the Sale Notice as an
attorney of a Relevant Company is in fact a person named or
referred to in the Power of Attorney for that Relevant
Company.
Except as expressly stated in this opinion, we have not taken any
action to verify these assumptions. However, the signatory of this
letter and those having carriage of this matter (the "persons acting")
believe the assumptions to be correct at the time as of which they are
given, having regard to the facts and circumstances of which the
persons acting had actual knowledge as at that time including, without
limitation, any facts appearing on the face of the document referred
to in the assumptions (as opposed to facts and circumstances which the
persons acting could have found out about had they made enquiry).
6. Qualifications
This opinion is subject to the following qualifications:
(a) (except in the case of the opinions expressed in paragraphs
7(k), (l), (m), (n), (o), (q), (r), (s), (w) and (x)) the
application of the laws relating to insolvency, bankruptcy,
receivership, reorganisation, moratoria, court schemes and
similar laws affecting creditors' rights generally
(including, in the case of the Bank, those provisions of the
Banking Act, 1959 (Commonwealth) relating to taking control
of a bank's business, the statutory administration of a bank
and section 13A(3) of the Banking Act). Without limiting the
qualification expressed in the previous sentence:
(i) the floating charge granted under the Security
Trust Deed may be void against a liquidator of the
Trustee except in so far as it secures amounts
described in section 588FJ(2) of the Corporations
Law (which amounts would include the amount of any
obligation undertaken after the execution of the
charge on behalf of, or for the benefit of, the
Trustee) or in the circumstances referred to in
section 588FJ(3) of the Corporations Law, that is,
if the Trustee is shown to be solvent immediately
after the Security Trust Deed was executed. The
benefit of section 588FJ(2) does not apply in the
circumstances referred to in sections 588FJ(4) and
(5) of the Corporations Law. The floating charge
will also not be void under section 588FJ if it
was created more than 6 months before the Relation
Back Day (as defined in the Corporations Law);
-B-10-
(ii) if a transaction contemplated by the Transaction
Documents is an unfair preference, uncommercial
transaction or unfair loan within the meaning of
Part 5.7B Division 2 of the Corporations Law, then
the transaction may be voidable; and
(iii) a creditor's rights may be affected by a specific
Court order obtained under laws (including section
444F or Part 5.3A Division 13 of the Corporations
Law);
(b) a reference to the enforceability of an obligation is not to
be taken as indicating enforceability of it by way of
specific performance, injunctive relief or any other
specified remedy; enforcement of the obligations of each
Relevant Company and[ ] under the Transaction Documents and
the obligations of the Trustee in respect of the Notes and
Redraw Bonds may be limited by the general principles of
equity which provide, in particular, that equitable remedies
are discretionary, subject to equitable defences and are not
available where damages are considered to be an adequate
remedy;
(c) claims may become barred under statutes imposing limited
periods within which suits, actions or proceedings can be
brought or may be or become subject to defences of set_off,
abatement or counterclaim;
(d) enforcement of the obligations of each Relevant Company and
[ ] under the Transaction Documents and the obligations of
the Trustee in respect of the Notes and the Redraw Bonds is
subject to:
(i) the general common law doctrines of:
A. estoppel in relation to representations,
acts or omissions of the other parties
thereto; and
B. frustration;
(ii) the provisions of the Trade Practices ▇▇▇ ▇▇▇▇
(Commonwealth), the Australian Securities and
Investments Commission Act 1989 (Commonwealth),
the Fair Trading Act 1987 (NSW) and the Fair
Trading Act 1992 (ACT) (particularly with respect
to misleading and deceptive conduct and/or
unconscionable conduct); and
(iii) the provisions of the Corporations Law with
respect to misleading and deceptive conduct, which
may preclude, limit or affect the ability to
enforce against that Relevant Company or [ ] its
obligations under the Transaction Documents and
against the Trustee its obligations in respect of
the Notes or Redraw Bonds;
(e) any provision in the Transaction Documents providing that
any entry, calculation or certification is to be conclusive
and binding will not be effective
-B-11-
if such entry, calculation or certification is fraudulent
and will not necessarily prevent judicial inquiry into the
merits of any claim by any party to it;
(f) a Court may not give full force to the provisions of the
Transaction Documents relating to the severability of any
invalid provision;
(g) a Court will not enforce a provision of a Transaction
Document which is in the nature of a penalty;
(h) enforcement proceedings are subject to the general
jurisdiction of the Court to award costs, even as against a
successful party;
(i) the records of each Relevant Company held at the offices of
the Australian Securities and Investments Commission and
available for search are not necessarily complete or
up_to_date;
(j) a Court in a Relevant Jurisdiction may stay any proceedings
commenced in that jurisdiction against any Relevant Company
or [ ] under the Transaction Documents if there are other
proceedings in respect of the Transaction Documents in other
jurisdictions simultaneously on foot against that Relevant
Company or [ ];
(k) where any party to the Transaction Documents is vested with
a discretion or may determine a matter in its opinion, the
law of the Relevant Jurisdictions may require that such
discretion be exercised reasonably and that such opinion be
based on reasonable grounds;
(l) we express no opinion on the enforceability of any
obligations to negotiate in good faith or similar;
(m) an indemnity for legal costs or against liability for breach
of any law may be unenforceable;
(n) where any party to a Transaction Document is required to
make any payments on demand, a Court may require that that
party be given a reasonable time after demand is made on
that party to comply with the demand before the creditor
will be permitted to realise or enforce any security for a
failure to satisfy the demand;
(o) we express no opinion on any provision in any of the
Transaction Documents requiring written amendments and
waivers of the Transaction Documents in so far as they
suggest that oral or other modifications, amendments or
waivers could not be effectively agreed upon or granted
between or by the parties or by a duly authorised agent;
(p) the provisions of Part 5.7B of the Corporations Law relating
to unfair loans have not, so far as we are aware, been the
subject of any decided case law. The opinion expressed in
paragraph 7(q) is therefore based upon our interpretation of
the relevant provisions of the Corporations Law, and not
upon any case law or other authority;
-B-12-
(q) the enforceability of the Security Trust Deed is subject to:
(i) the right of a chargor or mortgagor to redeem the
property the subject of its charge or mortgage by
tender of payment in full of the moneys secured at
any time prior to the sale of the charged or
mortgaged property;
(ii) the obligation of a chargee or mortgagee to
exercise its power of sale in good faith and in a
manner which is not reckless, harsh or
unconscionable and to take reasonable care to
obtain on such a sale a proper price or true
market value for the property the subject of the
sale; and
(iii) the obligations of a chargee or mortgagee in
possession of charged or mortgaged property to
account to the chargor or mortgagor;
(r) our opinion as to the charge in the Security Trust Deed
being a first ranking security is subject to the possibility
of charges by virtue of statute or by law ranking ahead of
the charge in the Security Trust Deed. In particular,
certain other claims may have or obtain priority over the
charge in the Security Trust Deed including:
(i) by virtue of statute (e.g. certain rates and
taxes);
(ii) by reason of the fact that the priority accorded
by virtue of registration under the Corporations
Law does not extend to encumbrances which are not
so registrable (e.g. encumbrances over land or
choses in action other than books debts and
certain encumbrances under which the holder has
possession of the property subject to encumbrances
or of indicia of title to that property); and
(iii) by virtue of certain exceptions provided by the
Corporations Law to the principle that registrable
charges take priority according to the order in
which they are registered and of certain
provisions of the Corporations Law which give
priority over a floating charge to certain claims
of employees and others when a receiver is
appointed over property of the chargor or the
chargor is wound up;
(s) the Security Trust Deed is limited security and will not be
available for enforcement in respect of amounts outstanding
over [A$20,000,000,000];
(t) under temporary Australian foreign exchange controls,
payments by an Australian resident to, or on behalf of:
(i) the Government of Iraq or its agencies or
nationals;
(ii) the authorities of the Federal Republic of
Yugoslavia (Serbia and Montenegro);
-B-13-
(iii) the Government of Libya or any public authority or
controlled entity of the Government of Libya;
(iv) the Taliban (also called the Islamic Emirate of
Afghanistan) or any undertaking owned or
controlled, directly or indirectly, by the
Taliban; or
(v) the National Union for the Total Independence of
Angola ("UNITA") or senior officials, or adult
members of the immediate families of senior
officials, of UNITA, may only be made with Reserve
Bank of Australia approval. Such restrictions may
change in the future; and
(u) if an action were brought in an Australian Court (other than
a New South Wales Court) under the Transaction Documents,
then under traditional practice a judgment could not be
obtained in a currency other than Australian dollars
(although recent decisions of the English and New South
Wales Courts to the contrary might be followed).
7. Opinion
Subject to the assumptions and qualifications set out above and to
matters of fact not disclosed to us, and based upon the documents
which we have examined, we are of the opinion that:
(a) each Relevant Company is a corporation duly incorporated and
existing in the Australian Capital Territory, with power to
enter into and deliver the Transaction Documents, the Master
Agreement Amending Agreement, the Sale Notice and the Powers
of Attorney to which it is a party and to exercise its
rights and perform its obligations thereunder and all
corporate and other action required to authorise the
execution and delivery of the Transaction Documents, the
Master Agreement Amending Agreement, the Sale Notice and the
Powers of Attorney to which it is a party by that Relevant
Company and the performance by that Relevant Company of its
obligations under the Transaction Documents, the master
Agreement Amending Agreement and the Notes to which it is a
party has been duly taken;
(b) the Transaction Documents, the Master Agreement Amending
Agreement, and the Sale Notice have been duly executed and
delivered by each Relevant Company that is a party thereto
and the obligations expressed to be assumed by:
(i) each Relevant Company under the Underwriting
Agreement the Class A-1 Purchase Agreement and the
Placement Agency Agreement are legal, valid and
binding obligations (their enforceability being a
matter of New York law);
-B-14-
(ii) each Relevant Company and[ ] under each Currency
Swap Agreement (excluding each relevant Credit
Support Annex) are legal, valid and binding
obligations, enforceable in accordance with their
terms in the Relevant Jurisdictions;
(iii) each Relevant Company under each Credit Support
Annex are legal, valid and binding obligations
(their enforceability being a matter of New York
law); and
(iv) each Relevant Company under the balance of the
Transaction Documents to which it is a party are
legal, valid and binding obligations, enforceable
in accordance with their terms in the Relevant
Jurisdictions;
(c) each Relevant Company is capable of suing and being sued in
its corporate name;
(d) in any proceedings taken in the Relevant Jurisdictions in
relation to the Transaction Documents or the Notes, each
Relevant Company will not be entitled to claim for itself or
any of its assets immunity from suit, execution, attachment
or other legal process;
(e) in any proceedings taken in the Relevant Jurisdictions in
relation to the Transaction Documents or the Notes, the
choice of the governing law of the Transaction Documents or
the Notes will be recognised provided that such choice was
made on a bona fide basis and without the primary purpose of
avoiding the laws of another jurisdiction. We are not aware
of any factual circumstances which suggest to us that the
choice will not be recognised;
(f) any final and conclusive judgment obtained against a
Relevant Company in the Relevant Jurisdictions will be
recognised and enforced;
(g) all acts, conditions, approvals, authorisations, filings and
things required to be done, fulfilled and performed in order
to:
(i) enable each Relevant Company lawfully to enter
into, exercise its rights under and perform and
comply with the obligations expressed to be
assumed by it in the Transaction Documents and, in
the case of the Bank, the Sale Notice;
(ii) ensure that the obligations expressed to be
assumed by each Relevant Company therein are
legal, valid and enforceable: and
(iii) make the Transaction Documents and the Sale Notice
admissible in evidence in the Courts of the
Relevant Jurisdictions,
have been done, fulfilled and performed and are in full
force and effect. No authorisation under the laws of the
Relevant Jurisdictions is required for the
-B-15-
use or distribution of the final prospectus
relating to the Class A-1 Notes in the United
States of America and the United Kingdom;
(h) the execution, delivery, incurring of the obligations to
perform, and (so far as we are aware) performance of the
Transaction Documents by each Relevant Company and, in the
case of the Bank, the Sale Notice will not conflict with its
constitution nor with any law of the Relevant Jurisdictions
applicable to each Relevant Company;
(i) the inspection referred to in paragraphs 3(g) and 5(i) as
disclosed to us in the search report prepared by ▇▇▇▇▇▇▇▇ &
Co does not disclose any filing in respect of the passing of
a voluntary winding up resolution, the presentation of a
petition or the making of an order for the winding up of any
Relevant Company or the appointment of a receiver or
administrator in relation to or in connection with any
Relevant Company or any security interest granted by the
Bank in respect of the Mortgage Loan Rights;
(j) the charge created by the Security Trust Deed must be
registered under section 263 of the Corporations Law within
45 days after the date of its creation. We confirm that we
have attended to registration of the charge created by the
Security Trust Deed. Upon registration, the charge will be a
first ranking charge over the Assets of the Series Trust
(subject to the Trustee's Prior Interest (as that term is
defined in the Security Trust Deed) and the provisions of
sections 279-282 of the Corporations Law). On enforcement of
the charge the Security Trustee's rights in relation to the
Assets of the Series Trust will be no greater than the
rights of the Trustee in respect of such assets prior to
enforcement and therefore the Security Trustee's interest in
the Assets of the Series Trust as chargee remains subject to
the rights of any other party who has an interest therein to
which the Trustee's interest is subject;
(k) the order of application of payments set out in clause 13.1
of the Security Trust Deed is valid, binding and enforceable
against the Security Trustee, the Trustee, the Residual
Unitholder and the Secured Creditors (as defined in the
Security Trust Deed) (subject to the laws relating to
insolvency referred to in paragraphs 7(w) and (x) of this
opinion);
(l) in the event of the insolvency of the Trustee or the
Security Trustee, none of:
(i) the creation by the Trustee of the charge created
under the Security Trust Deed; nor
(ii) the making of payments by the Trustee or the
Security Trustee to Noteholders and Redraw
Bondholders under and in accordance with the
Transaction Documents, or the Notes or the Redraw
Bonds; nor
(iii) the assignment of the Mortgage Loan Rights by the
Seller to the Trustee in accordance with and as
contemplated by clause 4 of the Series Supplement,
-B-16-
is or will be an unfair preference, within the
meaning of section 588FA(1) of the Corporations
Law;
(m) in the winding up of the Trustee, the assets subject to the
charge created by the Security Trust Deed, and all money
received by the Security Trustee or any receiver in exercise
of any power, right or remedy under the Security Trust Deed,
will be required to be applied in or towards satisfaction of
amounts owing by the Trustee to the Secured Creditors (as
defined in and in the order specified in the Security Trust
Deed) in priority to the claims of unsecured creditors of
the Trustee (except to the extent that those unsecured
creditors have the benefit of the Trustee's Prior Interest
(as that term is defined in the Security Trust Deed));
(n) (i) if either the Trustee or the Security Trustee is
wound up, the assets held by it as trustee of the
Series Trust or as Security Trustee (as the case
may be) will not be available to its creditors,
other than creditors to whom debts were incurred
by the Trustee or the Security Trustee (as the
case may be) acting in its capacity as such, and
in accordance with the provisions of the Master
Trust Deed, the Series Supplement or the Security
Trust Deed (as the case may be); and
(ii) if the trustee of the trusts referred to in
paragraph 13(m)(vii)(A)(2) of the Credit Support
Annex to each of the Currency Swap Agreements is
wound up the assets held by it as such trustee
will not be available to its creditors other than
as creditors to whom debts were incurred by it
acting in such capacity and in accordance with the
provisions of the relevant Credit Support Annex;
(o) upon acceptance by the Trustee in accordance with the Series
Supplement of the offer contained in a Sale Notice:
(i) the Mortgage Loan Rights will be validly assigned
in equity to the Trustee; and
(ii) upon such assignment taking effect the Mortgage
Loan Rights will not be considered to be the
assets of the Bank upon the winding-up of the Bank
(except to the extent that the Mortgage Loan
Rights become assets of the CBA Trust);
(p) the Notes and Redraw Bonds will, if issued in accordance
with the Transaction Documents and subject to the
restrictions set out in the Transaction Documents, be
validly issued by the Trustee and will constitute binding
debt obligations of the Trustee enforceable in accordance
with their terms, subject to the limitations on the
liability of the Trustee set out in the Transaction
Documents;
(q) the issue of the Notes and the issue of Redraw Bonds do not,
in our opinion, constitute an unfair loan within the meaning
of section 588FD(1) of the Corporations Law. We say this
because:
-B-17-
(i) a loan will only be unfair if either the interest
or charges payable in respect of the loan are
extortionate, or become extortionate as a result
of a variation;
(ii) there are no charges levied on the Trustee in
respect of the Notes or the Redraw Bonds;
(iii) interest on the Notes and the Redraw Bonds is
calculated at a rate which will be by reference to
a formula based on either USD-LIBOR-BBA (in the
case of the Class A-1 Notes) or BBSW (in the case
of the Class A-2 Notes, the Class B Notes and the
Redraw Bonds) plus the margin applicable to those
Notes or Redraw Bonds. The margins will be agreed
prior to issue on the basis (we understand) of
offers made by institutional investors in, in the
case of the Class A-1 Notes, the US capital market
and the Euromarket or, in the case of the Class
A-2, the Class B Notes and the Redraw Bonds, in
the Australian domestic market. USD-LIBOR-BBA and
BBSW are market rates, calculated on the basis of
rates displayed on the Telerate system (in the
case of USD_LIBOR_BBA) or the Reuters system (in
the case of BBSW) and represent rates offered by
financial institutions active in the relevant
money markets;
(iv) both elements of the interest rates payable in
respect of the Notes and the Redraw Bonds are
therefore calculated on the basis of rates
determined by reference to rates generally
applicable or obtainable from time to time in the
relevant money markets; and
(v) whilst we are not aware of any case law on the
meaning of "extortionate", in our opinion, a rate
of interest determined in this way would not be
regarded as extortionate;
(r) a transaction may be set aside under Part 5.7B of the
Corporations Law if it is an uncommercial transaction within
the meaning of section 588FB(1) of the Corporations Law and
is also an insolvent transaction. Whether a transaction is
an "uncommercial transaction" in this sense is a question of
fact (not a question of law) to be determined by a court in
the circumstances of each case, having regard to all
relevant matters (including those specified in section
588FB(1)(a-d)). The nature of the transactions contemplated
by, or effected or to be effected under, the Transaction
Documents is not by itself (and having regard only to the
terms of the Transaction Documents), in our opinion, such as
to put the Trustee, the Security Trustee, the Class A_1 Note
Trustee, the Noteholders or the Redraw Bondholders on notice
that any such transactions might be uncommercial
transactions. If, however, any such transaction were held to
be an uncommercial transaction, then that transaction would
only be liable to be set aside under Part 5.7B of the
Corporations Law if the transaction were also an insolvent
transaction within the meaning of section 588FC of the
Corporations Law, and either:
-B-18-
(i) as against a person who is not a party to the
transaction, that person is not able to prove the
matters specified in section 588FG(1); or
(ii) as against a person who is a party to the
transaction, that person is not able to prove the
matters specified in section 588FG(2).
The matters to be proved under sections 588FG(1) and (2) are
matters of fact (not law) which include the state of mind of
the person concerned. That state of mind may obviously
differ from person to person;
(s) the Perfection of Title Powers of Attorney have been granted
by the Bank in accordance with its constitution and will not
be revoked by the winding-up of the Bank;
(t) upon registration (where necessary) of the Perfection of
Title Powers of Attorney in each Australian jurisdiction,
the Perfection of Title Powers of Attorney will enable the
Trustee, upon the occurrence of a Perfection of Title Event,
to transfer the Mortgages forming part of the Assets of the
Series Trust into its own name and to lodge the Mortgage
Transfers in respect of those Mortgages for registration
with the land titles office of the appropriate Australian
jurisdiction (subject to stamping with nominal duty in the
relevant jurisdiction). Apart from notifying the relevant
Mortgagors, the Trustee will not be required to take any
further action in order to perfect its legal title to the
Mortgages forming part of the Assets of the Series Trust
once those Mortgage Transfers have been registered in its
own name. We confirm that we have been instructed to
register the Perfection of Title Powers of Attorney in all
Australian States and Territories (where necessary), which
we understand to be the jurisdictions in which the Assets of
the Series Trust are located;
(u) the Security Trust Deed creates a floating charge over the
Charged Property (as defined in the Security Trust Deed);
(v) a notice specifying an amount determined by the Manager to
be the facility limit for the purposes of the Liquidity
Facility and delivered to the Trustee and the Liquidity
Facility Provider in accordance with clause 17 of the
Liquidity Facility Agreement no later than 3 Business Days
before the Issue Date will, subject to the terms of the
Liquidity Facility, set the facility limit for, and be
binding on each of the parties to, the Liquidity Facility;
(w) there are no provisions of the Corporations Law under which
payments made by the Trustee or the Security Trustee to the
Noteholders or the Redraw Bondholders under and in
accordance with the Transaction Documents, the Notes or the
Redraw Bonds or the creation of the charge under the
Security Trust Deed may be set aside, other than the
provisions of sections 266, 267, 437D, 468 and 588FA-FE of
the Corporations Law;
(x) section 568 of the Corporations Law entitles a liquidator of
a company on the company's behalf to disclaim property of
the company that, amongst other things, consists of:
-B-19-
(i) property that is unsaleable or not readily
saleable;
(ii) property that may give rise to a liability to pay
money or some other onerous obligation;
(iii) property where it is reasonable to expect that the
costs, charges and expenses that would be incurred
in realising the property would exceed the
proceeds of realising the property; or
(iv) a contract (which cannot be disclaimed without the
leave of the court unless it is an unprofitable
contract or a lease of land, and in such case the
court may make such orders as it considers just
and equitable).
It is unclear whether the Mortgage Loan Rights acquired by
the Trustee constitute property of the Trustee for the
purposes of section 568. Generally speaking, trust assets
are not taken into account in the winding up of an insolvent
company and are not available for distribution amongst the
company's personal creditors. However, despite this
principle, in furtherance of the goal of section 568 to
permit the prompt winding up of a company, it is possible
that a court could conclude that the section empowers a
liquidator to disclaim trust assets.
Although this is a factual matter, we believe that it is
unlikely that a liquidator would wish to disclaim the
Mortgage Loan Rights. If, though, the liquidator sought to
do this, section 568D(1) provides that disclaimer does not
affect any other person's rights or liabilities except so
far as it is necessary in order to release the company from
liability. It is unlikely therefore that a disclaimer of any
Mortgage Loan Rights by the liquidator of the Trustee would
free those Mortgage Loan Rights from the terms of the Series
Trust or release them as security for the Noteholders under
the Security Trust Deed.
We also think it is unlikely that the issue of disclaimer
would arise in practice. If the Trustee becomes insolvent,
the Master Trust Deed provides for the Trustee to be
replaced and, in the interim, for the Manager to act as
trustee. Commercial and judicial practice also suggests that
if the Trustee becomes insolvent, a court will readily order
the vesting of the trust assets and liabilities in a
replacement trustee;
(y) in any proceedings taken in the Relevant Jurisdictions in
relation to the Transaction Documents, the choice of the
governing law thereof and the submission to the jurisdiction
of the Courts specified in each Transaction Document, will
be recognised provided that such choice or submission was
made on a bona fide basis and without the primary purpose of
avoiding the laws of another jurisdiction. We are not aware
that such a submission was made on any basis other than such
bona fide basis and without such a primary purpose;
-B-20-
(z) any final and conclusive judgment obtained against a
Relevant Company under the Transaction Documents in the
Relevant Jurisdictions (whether in Australian dollars or,
subject to paragraphs 6(g), (t) and (u), in a foreign
currency) will be recognised and enforced;
(aa) (i) any final and conclusive judgment against a
Relevant Company for a fixed or readily calculable
sum of money, and which has not been stayed in
full, obtained in any New York State or United
States Federal Court having jurisdiction
recognised by the Relevant Jurisdiction will be
recognised by the Supreme Courts of New South
Wales and the Australian Capital Territory (each a
"Supreme Court") so as to give rise to a fresh
cause of action on the judgment in such Supreme
Court which will enable a further judgment capable
of enforcement against the Relevant Company to be
obtained without re-examination or re-litigation
of the matters disposed of or adjudicated by that
action except where:
A. the foreign judgment is not consistent
with the public policy of that Relevant
Jurisdiction (and we are not aware of
any reason of public policy which would
prevent enforcement of such a judgment);
B. the foreign judgment has been obtained
by fraud or duress;
C. the foreign judgment was obtained in
proceedings which contravene the
principles of natural justice;
D. the foreign judgment is a penal or
revenue judgment; or
E. there has been a prior judgment in
another court between the same parties
concerning the same issues as are dealt
with in the foreign judgment; and
(ii) to enable enforcement in the Supreme Court of a
judgment obtained in a currency other than
Australian dollars, the amount of that judgment
may have to be converted into Australian dollars
on the basis of the rate of exchange prevailing at
the date of judgment. In the absence of an
official or fixed rate of exchange we are not
aware of the rate of exchange which would be held
to be the rate of exchange prevailing at the date
of judgment for the purpose of the conversion to
Australian dollars on enforcement of a judgment in
another currency;
(bb) the submission by a Relevant Company to the jurisdiction of
the courts of New York in the Underwriting Agreement the
Placement Agency Agreement and the Credit Support Annexes
and the appointment by it of any process agent under the
Underwriting Agreement the Placement Agency Agreement and
the Credit Support Annexes for any action or proceeding
commenced in New York is irrevocably valid and binding on it
under the laws of each Relevant Jurisdiction;
-B-21-
(cc) it is not necessary either in order to enable the Bank of
New York, New York Branch (in its capacity as Class A-1 Note
Trustee, Class A-1 Note Registrar, Agent Bank and Principal
Paying Agent) to exercise its rights under the Security
Trust Deed, the Class A-1 Note Trust Deed and the Agency
Agreement or by reason of the execution of the Security
Trust Deed, the Class A-1 Note Trust Deed and the Agency
Agreement or the performance, in such capacities, outside
Australia by the Bank of New York, New York Branch of its
obligations thereunder, that the Bank of New York, New York
Branch should be licensed, qualified or entitled to carry on
business in Australia;
(dd) the Bank of New York, New York Branch (in its capacity as
Class A-1 Note Trustee, Class A-1 Note Registrar, Agent Bank
and Principal Paying Agent) will not be deemed to be
resident, domiciled, carrying on business or subject to
taxation in Australia, by reason only of the execution of
the Security Trust Deed, the Class A-1 Note Trust Deed and
the Agency Agreement and the performance outside Australia
and/or enforcement of the Security Trust Deed, the Class A-1
Note Trust Deed and the Agency Agreement;
(ee) except as expressly indicated in clauses 9 and 28 of the
Security Trust Deed the Secured Creditors (as defined in the
Security Trust Deed) are not entitled to terminate,
extinguish or wind up the Series Trust; and
(ff) upon the winding up of the Bank, Posted Collateral (as
defined in each Credit Support Annex) transferred by the
Bank to, and held by, the Trustee (or its custodian)
pursuant to the terms of the relevant Credit Support Annex
(including, without limitation, paragraph 13(m)(ix) of each
Credit Support Annex) may be applied in accordance with the
terms of the relevant Credit Support Annex.
8. Time Given
This opinion is given as at 9:00 am Sydney time on [__] April 2001. It
is for the benefit solely of the persons to whom it is addressed and
may not be relied upon by any other person, firm or corporation for
any purpose whatsoever.
Yours faithfully
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Partner
+ 61 2 9353 4174
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-B-22-
SCHEDULE
ADDRESSEES
Standard & Poor's (Australia) Pty. Limited Fitch, Inc.
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Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
Commonwealth Bank of Australia and
Securitisation Advisory Services Pty Limited P.T. Limited
▇▇▇▇▇ ▇
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48 ▇▇▇▇▇▇ Place SYDNEY NSW 2000
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: The Directors
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Perpetual Trustee Company
▇▇▇▇▇'▇ Investors Service, Inc. Limited
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 39 Hunter Street
SYDNEY NSW 2000 ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Eng Attention: The Directors
The Bank of New York, London Branch
48th Floor
One Canada Square The Bank of ▇▇▇ ▇▇▇▇, ▇▇▇
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UNITED KINGDOM UNITED STATES OF AMERICA
Attention: The Directors Attention: The Directors
[UBS Warburg (Australia) Limited
▇▇▇▇▇ ▇▇ [▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇] (as
Governor ▇▇▇▇▇▇▇ Tower representative of the
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ several Underwriters listed
in Schedule 1 of the
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇] Underwriting Agreement)
[ ]
Attention: The Directors [ ]
New York, NY [ ]
UNITED STATES OF AMERICA
Attention: The Directors
[Macquarie Bank Limited
▇▇. ▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇]
Attention: The Directors
-B-23-
EXHIBIT C
Form of Mallesons, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Opinion
[MALLESONS TO PROVIDE DRAFT]
[ ] April 2001
Standard & Poor's (Australia) Pty Limited ▇▇▇▇▇'▇ Investors Service Inc.
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Fitch Inc. Commonwealth Bank of Australia
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 48 ▇▇▇▇▇▇ Place
2 Chifley Square Sydney NSW 2000
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Securitisation Advisory Services Pty Limited Perpetual Trustee Company Limited
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P.T. Limited The Bank of New York,
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▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ 21W
USA ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Bank of New York, London Branch Citibank N.A. (NY branch)
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England
Macquarie Bank Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇. No. 1 ▇▇▇▇▇▇ Place
(as representatives of the underwriters ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
referred to in Schedule 1 to the
Underwriting Agreement)
[ ]
New York, New York
USA
-C-1-
Standard and Poor's (Australia) Pty Limited and others [ ] April 2001
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Dear Sirs
Perpetual Trustee Company Limited ("Trustee") and P.T. Limited ("Security
Trustee") Series 2001-1G Medallion Trust ("Trust")
We refer to the creation of the Trust in respect of which we have acted as legal
advisers to the Trustee (in its capacity as trustee of the Trust) and the
Security Trustee in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and
the Australian Capital Territory (Relevant States) and the Commonwealth of
Australia (Australia) (together, the Relevant Jurisdictions).
This opinion relates only to the laws of the Relevant Jurisdictions and is given
on the basis that it will be construed in accordance with the laws of New South
Wales. We express no opinion about the laws of another jurisdiction (including,
without limitation, the laws of England) or (except as expressly provided in
paragraph 4) factual matters.
We have relied exclusively on the Trustee's Certificate in relation to the
matters of fact contained in the Trustee Certificate and in respect of which we
opine in this opinion.
Where we have referred in this opinion to our state of knowledge in connection
with any circumstance, transaction or other matter, except as expressly
otherwise indicated in this opinion, our knowledge relates only to the actual
state of knowledge of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and any other partner or employee of
Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in our Sydney office who has been acting in that
capacity for the Trustee or the Security Trustee (Acting Person).
1 Documents
We have examined an original execution copy (or a fax or a photocopy )
(certified or otherwise identified to our satisfaction) of the
following documents relating to the Trust and the Security Trust:
(a) the Master Trust Deed dated 8 October 1997 between the
Trustee and Securitisation Advisory Services Pty Limited
("Manager") (as amended)("Trust Deed");
(b) the Series 2001-1G Medallion Trust Series Supplement dated [
] April 2001 between the Trustee, the Manager, and the
Commonwealth Bank of Australia ("Commonwealth Bank") (as
Seller and Servicer) ("Series Supplement");
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(c) the Series 2001-1G Medallion Trust Security Trust Deed dated
[ ] April 2001 between the Trustee, the Manager, the
Security Trustee and The Bank of New York, New York Branch
("Note Trustee") ("Security Trust Deed");
(d) the Series 2001-1G Medallion Trust Liquidity Facility
Agreement dated [ ] April 2001 between the Commonwealth Bank
(as Liquidity Facility Provider), the Manager and the
Trustee;
(e) the Series 2001-1G Medallion Trust Standby Redraw Facility
Agreement dated [ ] April 2001 between the Trustee,
Commonwealth Bank (as Redraw Facility Provider) and the
Manager;
(f)
(i) the Series 2001-1G Medallion Trust Currency Swap
Agreement comprising an ISDA Master Agreement, the
Schedule to it, each Confirmation and the Credit
Support Annex issued pursuant to it, each dated [
] April 2001 between the Trustee, the Manager,
Commonwealth Bank (as Standby Swap Provider) and [
] (in its capacity as Currency Swap Provider);
(ii) the Series 2001-1G Medallion Trust Currency Swap
Agreement comprising an ISDA Master Agreement, the
Schedule to it, and each Confirmation and the
Credit Support Annex issued pursuant to it, each
dated [ ] April 2001 between the Trustee, the
Manager, [ ] (as Standby Swap Provider) and
Commonwealth Bank (in its capacity as Currency
Swap Provider),
(each a Currency Swap);
(g) the Series 2001-1G Medallion Trust Interest Rate Swap
Agreement comprising on ISDA Master Agreement, the Schedule
to it, and each Confirmation issued pursuant to it, dated [
] April 2001 between the Trustee, the Manager and
Commonwealth Bank (as Interest Rate Swap Provider);
(h) the Series 2001-1G Medallion Trust Underwriting Agreement
dated [ ] April 2001 between the Trustee, the Manager,
Commonwealth Bank and [ ] as representative of the several
underwriters listed in Schedule 1 to it ("Underwriting
Agreement");
(i) the Class A-1 Note Trust Deed dated as of [ ] April 2001
between the Trustee, the Manager and the Note Trustee ("Note
Trust Deed") which attaches as a schedule the Terms and
Conditions of the Class A-1 Notes ("Note Terms and
Conditions");
(j) the Agency Agreement dated as of [ ] April 2001 between the
Trustee, the Manager, the Note Trustee (as Note Trustee,
Class A-1 Note Registrar,
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Principal Paying Agent and Agent Bank) and The Bank of New York,
London Branch (as Paying Agent) ("Agency Agreement");
(k) the Dealer Agreement dated [ ] April 2001 between the
Trustee, the Commonwealth Bank, the Manager, UBS Warburg
Australia Limited and Macquarie Bank Limited;
(l) the Mortgage Insurance Policy dated [ ] April 2001 issued by
PMI Mortgage Insurance Limited in favour of the Commonwealth
Bank and the Trustee;
(m) the powers of attorney dated 8 October 1997 and [ ] April
2001 given by the Trustee empowering the execution by the
Trustee of the Documents to which it is a party and the
power of attorney dated [ ] April 2001 given by the Security
Trustee empowering the execution by the Security Trustee of
the Documents to which it is a party ("Powers of Attorney");
(n) an extract of the minutes of meeting of the board of
directors of the Trustee dated [ ] April 2001 which
evidences the resolutions authorising the signing, delivery
and observance of obligations of the Trustee under the
Documents;
(o) certified copies of the constitution of each of the Trustee
and the Security Trustee; and
(p) the certificate dated [ ] April 2001 given by an authorised
officer of the Trustee and the Security Trustee, a copy of
which is attached to this opinion and marked exhibit "A"
("Trustees Certificate").
Except as otherwise expressly stated, in this opinion, the expression
"Documents" means the documents listed in paragraphs (a) to (l).
We have also examined copies (certified or otherwise identified to our
satisfaction) of the Prospectus dated [ ] April 2001 and the Note
Terms and Conditions but note, for the avoidance of doubt, that we do
not provide an opinion in respect of any of them.
2 Assumptions
We have assumed:
(a) the authenticity of all signatures, seals, duty stamps and
markings;
(b) the completeness of all documents submitted to us and the
conformity to originals of all documents submitted to us as
photocopies or fax copies;
(c) that the constitutions of the Trustee and the Security
Trustee provided to us on or about [ ] April 2001 are the
constitutions of the Trustee and the Security Trustee
(respectively) as at the date of this letter and that no
amendments have been made to them since that date;
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(d) that all authorisations specified in paragraph 1(n) above
remain in full force and effect;
(e) that the Documents have been or will be duly authorised by
the parties to them (other than the Trustee and the Security
Trustee) and do or will constitute valid and binding
obligations of all the parties to them, other than the
Trustee and the Security Trustee, under all relevant laws
including the laws of the Relevant Jurisdictions;
(f) the delivery of the Documents on behalf of the Trustee and
Security Trustee;
(g) that:
(i) the resolution of the board of directors was
properly passed (including that any meeting
convened was properly convened);
(ii) all directors who participated and voted were
entitled so to do;
(iii) the directors have properly performed their duties
and all provisions relating to the declaration of
directors' interests or the power of interested
directors to vote were duly observed, but there is
nothing in the searches referred to in paragraph 3
or on the face of the extract of the minutes
referred to in paragraph 1(n) that would lead us
to believe otherwise, and, in any event, we note
that you may rely on the assumptions specified in
section 129 of the Corporations Law unless you
knew or suspected that the assumptions were
incorrect;
(h) that the Trustee was the sole trustee of the Trust at the
time it executed the Documents (and we confirm that there is
nothing in any of the Documents that leads us to believe
that this assumption is incorrect);
(i) that the Security Trustee was the sole trustee of the trust
established under the Security Trust Deed ("Security Trust")
at the time it executed the Documents (and we confirm that
there is nothing in any of the Documents that leads us to
believe that this assumption is incorrect);
(j) that, if an obligation is to be performed in a jurisdiction
outside Australia, its performance will not be contrary to
an official directive, impossible or illegal under the law
of that jurisdiction;
(k) that the Commissioner of Taxation has not given and will not
give a direction under section 218 or section 255 of the
Income Tax Assessment ▇▇▇ ▇▇▇▇ of Australia ("ITAA") or
section 74 of the Sales Tax Assessment ▇▇▇ ▇▇▇▇ or section
260-5 of the Income Tax Assessment ▇▇▇ ▇▇▇▇ of Australia,
requiring the Trustee or the Security Trustee to deduct from
sums payable by it to a
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person under the Documents an amount of Australian tax
payable by the payee;
(l) that no transaction in connection with the Documents
constitutes an unfair preference, an uncommercial
transaction, an insolvent transaction or an unfair loan
within the meaning of sections 588FA, 588FB, 588FC or 588FD
respectively of the Corporations Law;
(m) that no party has contravened or will contravene section 208
or section 209 of the Corporations Law by entering into any
Document or a transaction in connection with any Document;
(n) each person who has signed the Documents as an attorney of
the Trustee and the Security Trustee is in fact a person
named or referred to in the Powers of Attorney for the
relevant company;
(o) that the Powers of Attorney have been or will be registered
in New South Wales as appropriate and we understand ▇▇▇▇▇▇▇
▇▇▇, Sydney will attend to registration of the Powers of
Attorney after settlement of the transaction;
(p) that the Trustee entered into the Documents (other than the
Trust Deed and the Series Supplement) in its capacity as
trustee of, and for the purposes of, the Trust and for the
benefit of the beneficiaries of the Trust (however, we note
that each Document (other than the Trust Deed and the Series
Supplement) states in the listing of the Trustee as a party
that it enters into the Document in its capacity as trustee
of the Trust, and we are not aware of any circumstance to
the contrary);
(q) that the officers and agents of the Trustee and the Security
Trustee have properly performed their duties to the Trustee
and the Security Trustee respectively and we note that,
under section 129(4) of the Corporations Law, you may make
this assumption unless you know or ought to know that the
assumption is incorrect;
(r) that upon execution of the Series Supplement by the Trustee
the Manager paid the sums referred to in that document to
constitute the Trust;
(s) that the contents of the Trustee's Certificate are true and
correct in all respects;
(t) that the Trustee has not exercised its powers under the
Documents to release, abandon or restrict any power
conferred on it by the Trust Deed;
(u) that the Security Trustee has not exercised its powers under
the Documents to release, abandon or restrict any power
conferred on it by the Security Trust Deed;
(v) no action has been taken to terminate the Trust or the
Security Trust;
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(w) the Underwriting Agreement will, upon execution, constitute
legal, valid, binding and enforceable obligations of each
person which is a party to it under the laws of the State of
New York (including, without limitation, the Trustee), is
enforceable in the courts of the State of New York (except
to the extent that enforceability may be limited by general
principles of the State of New York law or equity) and that
no party to them will contravene any laws of the State of
New York (including any laws relating to the issue of the
Notes (as defined in the Series Supplement) by the Trustee)
by entering into and performing the obligations contained in
that agreement;
(x) that the Trustee (in its capacity as trustee of the Trust)
is able to pay all its debts, as and when they become due
and payable, at the time Documents are entered into, or any
act is done, or any omission is made, for the purpose of
giving effect to a transaction under any Document (and that
the Trustee does not become unable to pay any of its debts
as and when they become due and payable, as a result of any
such act or event);
(y) that all of the provisions contained in the Documents have
been, and will be, strictly complied with (however, please
note that this assumption does not affect the opinion
contained in paragraph 4(d) that the obligations of the
Trustee and the Security Trustee under the Documents are
enforceable (as that term is defined in paragraph 4(d));
(z) that, except to the extent that the relevant representation
and warranty is the subject of an opinion in paragraph 4,
the representations and warranties made by the Trustee and
the Security Trustee in each Document are correct in all
respects at all times; and
(aa) that the contents of the draft opinion of ▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇ LPP, which we received on [ ] April 2001 and a copy
of which is attached to this opinion and marked as exhibit
"B", is true and correct in all respects and is in the form
which ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ LPP will issue such an
opinion on [ ] April 2001;
We have not taken any steps to verify these assumptions but, without
making specific enquiry beyond the steps referred to in this opinion,
none of the Acting Persons has actual knowledge as at the date of this
opinion of any matter which may cause any of the factual matters
referred to above to be incorrect.
3 Searches
We have relied on an inspection of the public records (which are not
necessarily complete or up to date) on microfilm or in extract which
are available to the public at the offices of the Australian
Securities and Investments Commission in Sydney on:
(a) 22 October 1997 at 10:50am and [ ] September 2000 at [ ] -
in the case of the Trustee; and
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(b) [ ] April 2001 at [ ] - in the case of the Security Trustee.
We have not made any other searches.
4 Opinion
On the foregoing basis and subject to the qualifications set out
below, we are of the opinion that:
(a)
(i) the Trustee is incorporated and validly existing
under the laws of New South Wales and is capable
of suing and being sued in its corporate name;
(ii) the Security Trustee is incorporated and validly
existing under the laws of Victoria and is capable
of suing and being sued in its corporate name;
(and we note that the searches that we have undertaken, as
referred to in paragraph 3 above, did not disclose that any
proceeding relating to the insolvency, administration or
liquidation of the Trustee or the Security Trustee has been
filed with the Australian Securities and Investments
Commission (however, you should be aware that such records
are not necessarily accurate or up to date));
(b) each of the Trustee and the Security Trustee has the
corporate power to enter into the Documents to which it is a
party and the relevant Power of Attorney and to observe its
obligations under them (including the power to issue the
Notes);
(c) each of the Trustee and the Security Trustee has taken all
corporate action required on its part to authorise the
execution, delivery and observance of its obligations under
the Documents to which it is a party (including, in the case
of the Trustee, the issue of the Notes and the purchase of
the housing loans and related rights under the Series
Supplement);
(d) the Documents and the issue of the Notes have been, or will
be, duly executed and delivered by each of the Trustee and
Security Trustee;
(e) the obligations of the Trustee and the Security Trustee
under each Document to which it is a party are valid,
binding and enforceable in accordance with the terms of the
Document or, in the case of the Notes, when executed by an
attorney under the relevant Power of Attorney and duly
authenticated and delivered in accordance with their terms
and the terms of the Note Trust Deed and the Agency
Agreement. The expression "enforceable" means that the
relevant obligations are of a type that the courts in the
Relevant Jurisdictions
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enforce and does not mean that the obligations will
necessarily be enforced in all circumstances in accordance
with their terms. In particular, but without limitation, see
paragraphs 5(a), (b) and (c). We express no opinion as to
the enforceability of the Underwriting Agreement and the
Credit Support Annex to each Currency Swap under New York
law;
(f) based on the contents of the draft opinion of ▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇ referred to in paragraph 2(aa), and on which we
have relied upon exclusively for the purposes of this
paragraph (f), the obligations of the Note Trustee under
each Document to which it is a party are valid, binding and
enforceable in accordance with the terms of the Document;
(g) the execution and delivery by or on behalf of the Trustee
and the Security Trustee of the Documents to which it is a
party, the issue of the Notes, and the observance of its
obligations under the Documents and the Notes, will not
contravene:
(i) any law in force in the Relevant Jurisdictions
applicable to companies generally or to companies
acting as trustee (including, without limitation,
any Consumer Credit Legislation applicable to the
Trustee or the Security Trustee);
(ii) its constitution;
(iii) (in the case of the Trustee) the Trust Deed; or
(iv) (in the case of the Security Trustee) the Security
Trust Deed;
(h) neither the Trustee nor the Security Trustee enjoys any
immunity from suit in the court of any Relevant Jurisdiction
nor are its assets exempt from execution, subject to the
express terms of the Documents;
(i) no approval, authorisation, permission or consent of, or
filing, recording or registration with, any public
authority, public office or governmental agency of, any
Relevant Jurisdiction is necessary in connection with:
(i) the execution, delivery, validity or
enforceability of the Documents to which each of
the Trustee and the Security Trustee is a party or
the issue of the Notes; or
(ii) the performance by the Trustee and the Security
Trustee of its respective obligations under the
Documents to which it is a party or the issue of
the Notes,
except that a notice in respect of the charge contained in
the Security Trust Deed is required to be lodged at an
office of the Australian Securities and Investments
Commission within 45 days of it being executed, and failure
to
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do so will render that charge void as a security as against
a liquidator or administrator or the administrator of a deed
of company arrangement of that company. We note that ▇▇▇▇▇▇▇
▇▇▇, Sydney will lodge the relevant notices with the
Australian Securities and Investments Commission;
(j) upon execution of the Documents, and payment of the amount
referred to in paragraph 2(r), the Trust will be properly
constituted;
(k) upon execution of the Documents, the Security Trust will be
properly constituted;
(l) in respect of the Underwriting Agreement and each Credit
Support Annex:
(i) to enforce a conclusive and unsatisfied judgment
which is enforceable by execution in the State of
New York and obtained in relation to the
Underwriting Agreement and each Credit Support
Annex in a superior court of New York having
jurisdiction to give that judgment, it is
necessary for the judgment creditor to bring
separate proceedings in the appropriate courts of
the Relevant Jurisdictions founded on the judgment
and those courts could reasonably be expected in
the circumstances to give conclusive effect to the
judgment for the purpose of the proceedings;
(ii) a judgment in a foreign currency would, for the
purpose of enforcement, be converted to Australian
dollars on the basis of the rate of exchange
prevailing at the date of judgment; and
(m) the courts of New South Wales and the federal Courts of
Australia will give effect to:
(i) the choice of the laws of New South Wales to
govern the Documents (other than the Underwriting
Agreement and each Credit Support Annex);
(ii) the choice of the laws of New York to govern the
Underwriting Agreement and each Credit Support
Annex;
(iii) the submission to the jurisdiction of the courts
of New South Wales in the case of the Documents
(other than the Underwriting Agreement and each
Credit Support Annex);
(iv) the submission to the jurisdiction of the courts
of New York in the case of the Underwriting
Agreement and each Credit Support Annex.
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5 Qualifications
This opinion is subject to the following qualifications:
(a) the nature and enforcement of obligations may be affected by
lapse of time, failure to take action or laws (including,
without limitation, laws relating to bankruptcy, insolvency,
liquidation, receivership, administration, re-organisation
and re-construction) and defences generally affecting
creditors' rights;
(b) a creditor's rights may be affected by a specific court
order obtained under the laws (including, without
limitation, section 444F and part 5.3A division 13 of the
Corporations Law) and defences generally affecting
creditors' rights;
(c) the availability of certain equitable remedies (including,
without limitation, injunction and specific performance) is
at the discretion of a court in the Relevant Jurisdictions;
(d) an obligation to pay an amount may be unenforceable if the
amount is held to constitute a penalty;
(e) a provision that a statement, opinion, determination or
other matter is final and conclusive does not necessarily
prevent judicial enquiry into the merits of a claim by an
aggrieved party;
(f) the laws of the Relevant Jurisdictions may require that
parties act reasonably and in good faith in their dealings
with each other;
(g) the question whether a provision of a Document which is
invalid or unenforceable may be severed from other
provisions is determined at the discretion of a court in the
Relevant Jurisdictions;
(h) an indemnity for legal costs may be unenforceable;
(i) we express no opinion as to:
(i) provisions precluding oral amendments or waivers;
(ii) whether a court would determine that any
particular exercise by the Trustee of its powers
under the Master Trust Deed and the Series
Supplement relating to the Trust is for the
benefit of beneficiaries of the Trust;
(iii) whether a court would determine that any
particular exercise by the Security Trustee of the
powers under the Security Trust Deed relating to
the Security Trust is for the benefit of the
beneficiaries of the Security Trust;
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(iv) whether a judgment for a monetary amount would be
given in a currency other than Australian dollars,
although recent decisions of English Courts
allowing judgments in a foreign currency have been
followed in the Courts of New South Wales;
(v) except as otherwise expressly stated in this
opinion, the date on which a conversion from
foreign currency would be made for the purpose of
enforcing a judgment.
However, we confirm that nothing in this paragraph affects
the opinion given in paragraph 4(e) as to the Trustee's and
the Security Trustee's powers under the Master Trust Deed
and the Security Trust Deed respectively.
(j) court proceedings may be stayed if the subject of the
proceedings is current before a court;
(k) a document may not be admissible in court proceedings unless
applicable stamp duty has been paid;
(l) in order to enforce a foreign judgment in the Relevant
Jurisdictions it may be necessary to establish that the
judgment is for a fixed or certain sum of money and is not
in the nature of a penalty or revenue debt and, if raised by
the judgment debtor, it may be necessary to establish that:
(i) the judgment debtor (or its duly appointed agent)
received actual notice of the proceedings in
sufficient time to contest the proceedings;
(ii) the judgment was not obtained by fraud or duress
or in a manner contrary to natural justice or
public policy in the Relevant Jurisdictions; and
(iii) the subject matter of the proceedings giving rise
to the judgment was not immovable property
situated outside the Relevant Jurisdictions;
(m) we express no opinion as to the laws of the State of New
York;
(n) a court will not give effect to a choice of laws to govern
the Underwriting Agreement or each Credit Support Annex, or
a submission to the jurisdiction of certain courts, if to do
so would be contrary to public policy in the Relevant
Jurisdictions. We are not aware that such a submission was
made on any basis other than such bona fide basis and
without such a primary purpose;
(o) our opinion is based exclusively on our reliance on the
contents of the Trustee's Certificate in relation to all
matters contained in the Trustee's Certificate;
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(p) the specific approval of the Reserve Bank of Australia must
be obtained in connection with certain payments and
transactions having a prescribed connection with countries
or entities designated from time to time by the Reserve Bank
of Australia for the purposes of the Banking (Foreign
Exchange) Regulations (currently Iraq, Libya, the Federal
republic of Yugoslavia (Serbia and Montenegro), the Afghan
faction known as Taliban and the National Union for the
Total Independence of Angola).
6 Benefit
This opinion is addressed to you personally and may not without our
prior written consent be:
(a) relied on by another person (except for ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
who may rely on this opinion for the purpose of issuing its
legal opinions in relation to the Trust);
(b) disclosed, except to persons who in the ordinary course of
your business have access to your papers and records on the
basis that they will make no further disclosure; and
(c) filed with a government agency or quoted or referred to in a
public document.
This opinion is strictly limited to the matters stated in it and does
not apply by implication to other matters.
This opinion is given in respect of the laws of the Relevant
Jurisdictions which are in force at 9:00 am on the date of this
letter.
Yours faithfully
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EXHIBIT D
Form of Opinion of CBA's Chief Solicitor and General Counsel
[CBA TO PROVIDE DRAFT]
Direct Line (▇▇) ▇▇▇▇ ▇▇▇▇
My Ref: Ian Cambourn 1768968
[ ] September 2001
To: [▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇] (as
representative of the several
Underwriters listed in Schedule 1 of
the Underwriting Agreement)
[ ]
[ ]
New York, NY [ ]
THE UNITED STATES OF AMERICA
Dear Ladies and Gentlemen
SERIES 2001-1G MEDALLION TRUST SECURITISATION
COMMONWEALTH BANK OF AUSTRALIA
SECURITISATION ADVISORY SERVICES PTY LIMITED
I am the Chief Solicitor and General Counsel of the Commonwealth Banks and act
as solicitor and attorney in Australia for Commonwealth Bank of Australia (the
Bank) and Securitisation Advisory Services Pty Limited (the Manager). In that
connection I have examined such documents as I have deemed necessary or
appropriate for the opinions expressed herein.
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this opinion, unless otherwise expressly stated:
"Agency Agreement" means the Agency Agreement dated as of [ ] [ ] 2001
between the Trustee, the Manager, The Bank of New York, New York
Branch (as Class A-1 Note Trustee, Class A-1 Note Registrar, Agent
Bank and Principal Paying Agent) and The Bank of New York, London
Branch (as Paying Agent).
"Bank" means the Commonwealth Bank of Australia, ABN 48 123 123 124.
"CBA Party" means the Bank and the Manager.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed,
including the form of the Class A-1 Notes and the Terms and Conditions
of the Class A-1 Notes appearing in Schedule 1 and 2 respectively
thereof, dated as of [ ] April 2001 between the Trustee, the Class A-1
Note Trustee and the Manager.
"Class A-1 Note Trustee" means The Bank of New York, New York Branch.
"Credit Support Annex" means each of the Credit Support Annexes
annexed to the Currency Swap Agreements.
"Currency Swap Agreements" mean the two ISDA Master Agreements dated [
] April 2001 between the Trustee, [Currency Swap Provider], the Bank
and the Manager.
"Dealer Agreement" means the Dealer Agreement dated [ ] April 2001
between the Trustee, the Bank, the Manager, Macquarie Bank Limited,
ABN 88 064 133 946 and UBS Warburg Australia Limited, ACN 008 582 705.
"Interest Rate Swap Agreement" means the ISDA Master Agreement dated [
] September 2000 between the Bank, the Trustee and the Manager.
"Liquidity Facility Agreement" means the Liquidity Facility Agreement
dated [ ] September 2000 between the Bank, the Manager and the
Trustee.
"Manager" means Securitisation Advisory Services Pty Limited, ACN 080
151 337.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee and the Manager (as amended).
"PMI" means PMI Mortgage Insurance Ltd, [ACN ▇▇▇ ▇▇▇ ▇▇▇]
"PMI Master Policy" means the Lenders' Mortgage Insurance Provisions
dated [ ] April 2001 between the Bank , the Trustee and PMI.
"Security Trust Deed" means the Security Trust Deed dated [ ] April
2001 between the Security Trustee, the Trustee, the Manager and the
Class A-1 Note Trustee.
"Security Trustee" means P. T. Limited, ABN 67 004 454 666.
"Series Supplement" means the Series Supplement in relation to the
Series Trust dated [ ] 2001 between the Trustee, the Bank and the
Manager.
"Series Trust" means the trust established under the Master Trust Deed
and the Series Supplement, known as the Series 2001-1G Medallion
Trust.
"Standby Redraw Facility Agreement" means the Standby Redraw Facility
Agreement dated [ ] April 2001 between the Bank, the Manager and the
Trustee.
"Transaction Documents" means:
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(a) the Master Trust Deed (in so far as it relates to the Series
Trust);
(b) the Series Supplement;
(c) the Security Trust Deed;
(d) the Standby Redraw Facility Agreement;
(e) the Liquidity Facility Agreement;
(f) the Interest Rate Swap Agreement;
(g) the Currency Swap Agreement;
(h) the PMI Master Policy;
(i) the Dealer Agreement;
(j) the Agency Agreement;
(k) the Class A-1 Note Trust Deed; and
(l) the Underwriting Agreement.
"Trustee" means Perpetual Trustee Company Limited, ABN 42 000 001 007,
in its capacity as trustee of the Series Trust.
"Underwriting Agreement" means the Underwriting Agreement dated [ ]
April 2001 between the Bank, the Manager, the Trustee and [▇▇▇▇▇▇▇
▇▇▇▇▇ Barney], as representative of the several Underwriters listed in
Schedule 1 thereto.
1.2 Interpretation
Words and expressions which are defined in the Master Trust Deed and
the Series Supplement have the same meanings when used in this
opinion, unless otherwise defined in it.
2. Documents Examined
I have examined the following documents:
(a) an original execution copy, a fax copy or a photocopy of
each of the Transaction Documents as executed; (b) an
original certified copy, or a fax or a photocopy of a
certified copy, of the constitution of each CBA Party;
(c) the Commonwealth Banks Act 1959 as amended ("the Act") and
such other acts of the Commonwealth of Australia as I have
deemed necessary;
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(d) a copy of a resolution passed by the board of directors of
the Manager;
(e) copies of powers of attorney in connection with the
execution of the Transaction Documents by the CBA Parties;
and
(f) such other documents, instruments and records as I have
deemed necessary or appropriate for the purpose of rendering
the opinion stated herein,
and have made such factual investigations of the Bank and the Manager and have
made such investigations of law as I have deemed necessary or appropriate for
the purpose of rendering the opinion stated herein.
3. Assumptions
In giving the opinion stated herein, I have made the following
assumptions:
(a) that all documents submitted to me as copy or specimen
documents conform to the originals thereof;
(b) that originals of all documents executed or intended to be
executed, have been or will have been validly authorised,
executed and delivered by all of the parties thereto (other
than the CBA Parties) in the form or substantially in the
form presented to me;
(c) that the signatures on the originals of all documents
submitted to me are genuine (other than those of the CBA
Parties);
(d) that there has been or will have been no breach of the terms
of any of the documents submitted to me.
4. Qualifications
(a) My opinion is limited to the laws of the Commonwealth of
Australia in force at the date hereof and the facts
appertaining at the date hereof. I express no opinion as to
any law other than the law of the Commonwealth of Australia
and I have assumed that there is nothing in any other law
that affects the opinion stated herein. In particular I have
made no independent investigation of the laws of New York as
a basis for the opinion stated herein and do not express or
imply any opinion thereon;
(b) Insofar as my opinion relates to the performance of
documents, those opinions are limited to the principal
transactions contemplated by those documents. In particular,
they do not extend to the performance of obligations under
other documents referred to in the documents.
5. Opinion
Based upon and subject to the foregoing and having regard to such
legal considerations as I deem relevant, I am of the opinion that:
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1. Neither of the CBA Parties is, nor with the giving of notice
or lapse of time or both would either be, in violation of or
in default under its constitution or any note trust deed,
mortgage, deed of trust, loan agreement or other agreement
or instrument known to me to which the CBA Party is a party
or by which it or any of its properties is bound, except for
violations and defaults which individually and in the
aggregate are not materially adverse to the CBA Parties as a
whole or not materially adverse to the consummation of any
of the transactions contemplated by any Transaction
Document.
2. The issue and sale of the Class A-1 Notes under the
Underwriting Agreement and the execution, delivery and
performance by the CBA Parties of their respective
obligations under the Transaction Documents and the
consummation of the transactions contemplated in the
Transaction Documents will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a
default under, any note trust deed, mortgage, deed of trust,
loan agreement or other agreement or instrument known to me
to which a CBA Party is a party or by which a CBA Party is
bound or to which any of the property or assets of a CBA
Party is subject, nor will any such action result in any
violation of the provisions of (i) the constitution of a CBA
Party or (ii) any law or statute applicable to a CBA Party
in Australia or any existing order, rule or regulation of
any court or governmental agency or body in Australia having
jurisdiction over a CBA Party, or any of its properties in
any federal or State jurisdiction of the Commonwealth of
Australia.
3. Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the best of my
knowledge, threatened in any federal or State jurisdiction
of the Commonwealth of Australia against or involving a CBA
Party or any property of a CBA Party, or to which a CBA
Party is a party or to which any property of a CBA Party is
subject: (i) asserting the invalidity of any of the
Transaction Documents, (ii) seeking to prevent the issuance
of the Class A-1 Notes or the consummation of any of the
transactions contemplated by any of the Transaction
Documents, (iii) that may adversely affect the federal or
State income, excise, franchise or similar tax attributes of
the Class A-1 Notes, (iv) that could materially and
adversely affect a CBA Party's obligations under any of the
Transaction Documents, or (v) which, if determined adversely
to a CBA Party, could individually or in the aggregate
reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management,
financial position, stockholders' equity or results of
operations of the Bank and its subsidiaries taken as a whole
or that would reasonably be expected materially to adversely
affect the consummation of any of the transactions
contemplated by any of the Transaction Documents.
This opinion is addressed to you for your sole benefit. It is not to be relied
on by any other person or for any other purpose nor is it to be quoted or
referred to in any public document or filed with any government agency or other
person without my consent.
Yours faithfully
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