U.S. $1,400,000,000
ME PORTFOLIO MANAGEMENT LIMITED
SMHL GLOBAL FUND NO. 3
U.S. $ 1,400,000,000 Class A Mortgage Backed Floating Rate Notes,
UNDERWRITING AGREEMENT
October ___, 2002
Credit Suisse First Boston Corporation
As Representative of the Several Underwriters,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. Perpetual Trustees Australia Limited (ABN 86 ▇▇▇ ▇▇▇ ▇▇▇), a
corporation duly incorporated and existing under the Corporations ▇▇▇ ▇▇▇▇ (Cth)
of the Commonwealth of Australia ("PTAL"), in its capacity as trustee of the
SMHL Global Fund No. 3 (the "Fund", and PTAL in that capacity being the "ISSUER
Trustee" acting at the direction of ME Portfolio Management Limited (ABN 79 005
964 134), as manager of the Fund (the "MANAGER") of the Fund proposes to sell to
the several Underwriters listed in Schedule A hereto (the "UNDERWRITERS"), for
whom Credit Suisse First Boston Corporation ("CSFBC") is acting as
representative (the "REPRESENTATIVE"), U.S.$1,400,000,000 principal amount of
Class A Mortgage Backed Floating Rate Notes (the "CLASS A NOTES" or the "NOTES")
issued by the Issuer Trustee. Each Note will be secured by the assets of the
Fund. The Issuer Trustee also proposes to issue Class B Notes (the "CLASS B
NOTES") which are not being sold to the Underwriters. The assets of the Fund
include, among other things, a pool of variable and fixed rate residential
housing loans (the "HOUSING LOANS") initially originated by Members Equity Pty
Limited (ABN 56 070 887 679) ("MEMBERS EQUITY") for Superannuation Members Home
Loans Origination Fund No. 3 (the "ORIGINATION FUND") including all monies at
any time paid or payable thereon or in respect thereof from, after October ___,
2002 (the "CUT-OFF DATE") with respect to payments of principal and after the
Closing Date (as defined herein) with respect to payments of interest, rights
under certain mortgage insurance policies with respect to the Housing Loans,
rights under the Mortgages with respect to the Housing Loans, the amounts on
deposit in the Collection Account, amounts
available under the Payment Funding Facility and the Redraw Funding Facility and
the rights of the Issuer Trustee under the Basic Documents (other than rights it
holds personally). The Fund will be established pursuant to the Master Trust
Deed between the Manager and the Issuer Trustee, dated July 4, 1994 as amended
(the "MASTER TRUST DEED") and a Notice of Creation of a Securitisation Fund
between the Manager and Issuer Trustee, to be dated on or about October 1, 2002
(the "NOTICE OF CREATION") which sets forth specific provisions regarding the
Fund. A Supplementary Bond Terms Notice Class A Notes and Class B Notes, to be
dated on or about October ___, 2002 (the "SUPPLEMENTARY BOND TERMS NOTICE CLASS
A NOTES AND CLASS B NOTES") between the Issuer Trustee, the Note Trustee and the
Manager, which sets forth the terms and conditions of the Notes. The Note Trust
Deed, to be dated on or about October ___, 2002 (the "NOTE TRUST DEED") by and
among the Issuer Trustee, the Manager and The Bank of New York, New York Branch
(the "NOTE TRUSTEE") provides for the issuance and registration of the Notes in
accordance with the terms and conditions attached thereto. Members Equity will
act as mortgage manager (the "MORTGAGE MANAGER") of the Housing Loans. The
Manager and Members Equity are each a "MEMBERS EQUITY PARTY" and collectively
are referred to herein as the "MEMBERS EQUITY PARTIES."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Notes. The United States
Securities Exchange Act of 1934, as amended, is herein referred to as the
"Exchange Act".
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Supplementary Bond Terms Notice Class A Notes and Class B
Notes, the Mortgage Origination and Management Agreement, the Notes, the
Security Trust Deed, the Note Trust Deed, the Fixed-Floating Rate Swaps, the
Currency Swap, the Redraw Funding Facility, the Payment Funding Facility, the
Supplementary Bond Terms Notice - Liquidity Notes and the Notice of Creation of
a Securitisation Fund. To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Prospectus (as defined
hereinafter).
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Fund only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
The Members Equity Parties and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule A as follows:
2. Representations and Warranties of the Issuer Trustee and the Members Equity
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
2
(a) Since the respective dates as of which information is provided in
the Prospectus (as defined herein), there has been no material adverse
change or any development involving a prospective material adverse
change in or affecting the general affairs, business prospects,
management or results of operations, condition (financial or otherwise)
of PTAL or the Fund, except as disclosed in the Prospectus, which is
material in the context of performing the Issuer Trustee obligations
and duties under the Notes and each Basic Document to which it is or is
to be a party.
(b) PTAL is a corporation duly incorporated and existing under the
Corporations ▇▇▇ ▇▇▇▇ (Cth) of the Commonwealth of Australia with the
power and authority (corporate and otherwise) to conduct its business
as described in the Prospectus, to issue the Notes and to enter into
and perform the Issuer Trustee's obligations under this Agreement and
the Basic Documents and PTAL has been duly qualified for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it conducts any business, so as to require
such qualification, other than where the failure to be so qualified or
in good standing would not have a material adverse effect on the
transactions so contemplated herein or in the Basic Documents.
(c) This Agreement has been duly authorized, executed and delivered by
PTAL.
(d) The Notes have been duly authorized by PTAL, and, when issued the
Notes have been (and duly authenticated by the Principal Paying Agent),
delivered and paid for pursuant to this Agreement, they will constitute
valid and binding obligations of the Issuer Trustee, entitled to the
benefits provided by the Note Trust Deed and the Security Trust Deed,
subject as to enforceability to applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, liquidation or other
similar laws affecting the enforcement of creditors' rights generally
and to general equitable principles.
(e) The execution, delivery and performance by PTAL of each of the
Basic Documents to which it either is a party or is to be a party and
this Agreement has been duly authorized by PTAL, and, when executed and
delivered by it and each of the other parties thereto, each of the
Basic Documents to which it is a party will constitute a legal, valid
and binding obligation of the Issuer Trustee, enforceable against it in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles.
(f) PTAL is not, nor with the giving of notice or lapse of time or both
will be, in violation of or in default under: (i) its constitution or
(ii) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Issuer Trustee is either a party
or by which it or any of its properties is bound, except in the case of
(ii) for violations and defaults which individually and in the
aggregate
3
would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of
the Notes and the performance by it 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 (A) conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which the Issuer
Trustee is bound or to which any of the Issuer Trustee's property or
assets is subject, (B) result in any violation of the provisions of
PTAL's constitution, (C) result in any violation of any applicable law
or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Issuer Trustee
or any of the Issuer Trustee's properties or (D) result in the creation
or imposition of any lien or encumbrance upon any of its property
pursuant to the terms of any indenture, mortgage, contract or other
instrument other than pursuant to the Basic Documents, which, in the
case of clauses (A), (C) and (D) above, would have a material adverse
effect on the transactions contemplated herein or in the Basic
Documents; and, to the knowledge of the Issuer Trustee no consent,
approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body in Australia
is required for the issue and sale of the Notes or the consummation by
the Issuer Trustee of the transactions contemplated by this Agreement
or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and as may be required
under state securities or "Blue Sky" laws in connection with the
purchase and distribution of the Notes by the Underwriters and the
registration of the charge created by the Security Trust Deed with the
Australian Securities and Investments Commission.
(g) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or,
to the knowledge of the Issuer Trustee, threatened against or affecting
the Issuer Trustee or the Fund, or to which the Issuer Trustee is or
may be a party or to which the Issuer Trustee or any property of the
Fund is or may be the subject: (i) asserting the invalidity of this
Agreement or of any of the Basic Documents, (ii) seeking to prevent the
issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents by the
Issuer Trustee, (iii) that could materially adversely affect the U.S.
Federal or Australian Federal or state income, excise, franchise or
similar tax attributes of the Notes, (iv) that could materially and
adversely affect the Issuer Trustee's performance of its obligations
under, or the validity or enforceability against the Issuer Trustee of,
this Agreement or any of the Basic Documents or (v) which could
individually or in the aggregate have a material adverse effect on the
interests of the holders of any of the Notes.
4
(h) The representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects.
(i) The Issuer Trustee has not done or omitted to do anything that
might reduce, limit or otherwise adversely affect the right of the
Issuer Trustee to be indemnified from the assets of the Fund under
clause 26 of the Master Trust Deed.
(j) PTAL has not taken any corporate action and (to its knowledge and
belief having made reasonable inquiry and investigation) no legal
proceedings have been started or threatened against it for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator
or similar officer of it or of any or all of its personal assets.
(k) Subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "TAX ACT") and compliance by the
Underwriters with Section 10(b) hereto, no stamp or other duty is
assessable or payable in, and no withholding or deduction for any
taxes, duties, assessments or governmental charges of whatever nature
is imposed or made for or on account of any income, registration,
transfer or turnover taxes, customs or other duties or taxes of any
kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein
or thereof having power to tax in such jurisdiction, in connection with
(i) the authorization, execution, delivery or performance of this
Agreement, any of the Basic Documents to which the Issuer Trustee is or
is to be a party or (ii) the authorization, execution, issuance, sale
or delivery of the Notes, or (iii) the sale and delivery of the Notes
by the Underwriters contemplated by this Agreement, other than the
potential stamp duty liability which may be payable in Tasmania on
enforcement of the Charge (as defined in the Security Trust Deed)
within 12 months of the date of first execution of the Charge (as
defined in the Security Trust Deed) contained in the Security Trust
Deed.
(l) The Notes and the obligations of the Issuer Trustee under the Note
Trust Deed will be secured (pursuant to the Security Trust Deed) by a
first floating charge over the assets of the Fund, subject to the Prior
Interest (as defined in the Security Trust Deed).
(m) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other
requirement) obligate it to retire as Issuer Trustee or constitute a
Trustee's Default (as defined in the Master Trust Deed).
II. The Members Equity parties, jointly and severally, represent and warrant to
each Underwriter and the Issuer Trustee that:
(a) Except as described in the Prospectus, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has
5
not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting (i) the general
affairs, business, management, financial position, properties,
stockholders' equity or results of operations of any Members Equity
Party, (ii) their general affairs, business, condition (financial or
otherwise) taken as a whole, or (iii) assets of the Fund.
(b) Each Members Equity Party is a corporation duly incorporated and
validly existing under the Corporations ▇▇▇ ▇▇▇▇ (Cth) of the
Commonwealth of Australia; each Members Equity Party has the power and
authority (corporate and otherwise) to own its properties and conduct
its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the Basic Documents to
which it is a party and carry out the transactions contemplated by such
Basic Documents; each Members Equity Party has been duly qualified or
licensed for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification or licensing, other than where the failure to be so
qualified or licensed or in good standing would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents.
(c) This Agreement has been duly authorized, executed and delivered by
each of the Members Equity Parties.
(d) The Basic Documents to which any Members Equity Party is or is to
be a party have been duly authorized by the applicable Members Equity
Party, and, upon effectiveness of the Registration Statement, the Note
Trust Deed will have been duly qualified under the Trust Indenture Act
and, when executed and delivered by each Members Equity Party which is
a party thereto and each of the other parties thereto, each of the
Basic Documents to which any Members Equity Party is a party will
constitute a legal, valid and binding obligation of each such Members
Equity Party, enforceable against each such Members Equity Party in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles; and
the Notes and the Basic Documents each will conform to the descriptions
thereof in the Prospectus.
(e) Neither Members Equity Party is, nor with the giving of notice, or
lapse of time or both would be, in violation of or in default under,
(i) its constitution or (ii) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party
or by which it or any of its properties is bound, except in the case of
(ii) for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; the issue and sale of
the Notes and the performance by each Members Equity Party of all of
the provisions of its
6
obligations under the Notes, the Basic Documents and this Agreement and
the consummation of the transactions herein and therein contemplated
will not (A) conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
either Members Equity Party is a party or by which either Members
Equity Party is bound or to which any of the property or assets of
either Members Equity Party is subject, (B) result in any violation of
the provisions of the constitution of either Members Equity Party, (C)
result in any violation of any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over either Members Equity Party, or any of its
properties, or (D) result in the creation or imposition of any lien,
charge or encumbrance upon any of its property pursuant to the terms of
any such indenture, mortgage, contract, or other instrument other than
pursuant to the Basic Documents, which, in the case of clauses (A), (C)
and (D) above, would have a material adverse effect on the transactions
contemplated herein or in the Basic Documents; and no consent,
approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Notes or the consummation by either
Members Equity Party of the transactions contemplated by this Agreement
or the Basic Documents, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act
and as may be required under state securities or "Blue Sky" laws in
connection with the purchase and distribution of the Notes by the
Underwriters and the registration of the charge created by the Security
Trust Deed with the Australian Securities and Investments Commission.
(f) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or,
to the knowledge of either Members Equity Party, threatened against or
affecting either Members Equity Party or its properties, the Issuer
Trustee in its capacity as trustee of the Fund or the Fund's assets or,
to which either Members Equity Party or the Issuer Trustee in its
capacity as trustee of the Fund is a party or to which either Members
Equity Party, the Issuer Trustee in its capacity as trustee the Fund or
any property of either Members Equity Party or the Issuer Trustee in
its capacity as trustee of the Fund is the subject: (i) asserting the
invalidity of this Agreement or of any of the Basic Documents, (ii)
seeking to prevent the issuance of the Notes or the consummation of any
of the transactions contemplated by this Agreement or any of the Basic
Documents, (iii) that could materially adversely affect the U.S.
Federal or Australian Federal or state income, excise, franchise or
similar tax attributes of the Notes, (iv) that could materially and
adversely affect either Members Equity Party's performance of its
obligations under, or the validity or enforceability of, this Agreement
or any of the Basic Documents or (v) which could individually or in the
aggregate have a material adverse effect on the interests of the
holders of any of the Notes or the marketability of the Notes.
7
(g) There are no statutes, regulations, contracts or other documents
that are required to be filed as an exhibit to the Registration
Statement, or required to be described in the Registration Statement or
the Prospectus, which have not been filed or described as required.
(h) The representations and warranties of each Members Equity Party
contained in the Basic Documents (other than the representations and
warranties regarding the Housing Loans made by the Mortgage Manager in
the Mortgage Origination and Management Agreement) are true and correct
in all material respects as of the date when made.
(i) Ernst & Young are independent public accountants with respect to
each Members Equity Party within the meaning of the standards
established by the American Institute of Certified Public Accountants.
(j) Each Members Equity Party owns, possesses or has obtained all
authorizations, licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to perform its obligations under this
Agreement and the Basic Documents, and neither Members Equity Party has
received any actual notice of any proceeding relating to revocation or
modification of any such authorization, license, permit, certificate,
consent, order, approval or other authorization; and each Members
Equity Party is in compliance with all laws and regulations necessary
for the performance of its obligations under this Agreement and the
Basic Documents.
(k) Each Members Equity Party has not taken any corporate action nor
(to the best of its knowledge and belief having made reasonable inquiry
and investigation) no other steps have been taken or legal proceedings
been started or threatened against either Members Equity Party for its
winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator
or similar officer of it or of any or all of its assets.
(l) Since December 31, 2001, there has been no material adverse change
or any development involving a prospective material adverse change in
the condition (financial or otherwise) of either of the Members Equity
Parties.
(m) Neither the Fund or any of the Members Equity Parties are open-end
investment companies, unit investment trusts or face-amount certificate
companies that are or are required to be registered under Section 3 of
the United States Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"); and neither of the Fund or any of the
Members Equity Parties are and, after giving effect to the offering and
sale of the Notes and the
8
application of the proceeds thereof as described in the Prospectus,
will not be an "investment company" as defined in the Investment
Company Act.
III. The Manager represents and warrants to each Underwriter and the Issuer
Trustee that:
(a) The Manager has filed a registration statement on Form S-11 (No.
333-100087), including a form of preliminary prospectus, for
registration of the Notes under the Securities Act and has filed such
amendments thereto and will file such additional amendments thereto and
such amended prospectuses as may hereafter be required. Such
registration statement in the form in which it first became effective
and as amended or supplemented thereafter (if applicable) and the
prospectus constituting a part thereof (including all information
deemed to be a part thereof pursuant to Rule 430A(b) of the rules and
regulations of the Commission under the Securities Act) as amended or
supplemented thereafter (if applicable) under the Securities Act are
herein referred to as the "REGISTRATION STATEMENT" and the
"PROSPECTUS", respectively, except that if any revised prospectus shall
be provided to you for use in connection with the offering of the Notes
which differs from the Prospectus on file with the Commission at the
time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b)),
the term "PROSPECTUS" shall refer to such revised prospectus from and
after the time it is first provided to you for such use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Manager, threatened by the Commission. The Registration Statement
and Prospectus (as amended or supplemented if the Manager shall have
furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act and the rules and regulations of the Commission
thereunder and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"TRUST INDENTURE ACT") and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented, if applicable, at the Closing
Date will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties
shall not apply to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form T-1)
of the Note Trustee under the Trust Indenture Act, and (ii) statements
in or omissions from
9
the Registration Statement or the Prospectus based upon written
information furnished to the Manager by any Underwriter through the
Representative specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b).
(c) To the knowledge of the Manager, no event has occurred which would
entitle either Members Equity Party to direct the Issuer Trustee to
retire as trustee of the Fund under clause 18 of the Master Trust Deed.
(d) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other
requirement) constitute a Manager's Default (as defined in the
Prospectus).
(e) As of the Closing Date, the Issuer Trustee holds each related
Housing Loan as trustee of the Fund.
(f) Subject to Section 128F of the Tax Act applying to exempt interest
payable on the Notes from Australia withholding tax, no stamp or other
duty is assessable or payable in, and no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction,
in connection with the authorization, execution or delivery of the
agreements to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Notes and the performance by
each Members Equity Party of the Basic Documents to which it is or is
to be a party and the Notes, other than any duty which may be payable
in Tasmania as a result of the enforcement of the charge created under
the Security Trust Deed on a date that is 12 months and one day after
the execution of the Security Trust Deed.
3. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements contained herein, but subject to the terms and
conditions herein set forth, the Issuer Trustee, at the direction of the
Manager, agrees to sell the Notes to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Issuer Trustee at a
purchase price of ______% of the principal amount of the Class A Notes (which
aggregate amounts shall be net of the commissions payable to the Underwriters)
the respective principal amount of each class of Notes set forth opposite the
names of the Underwriters in Schedule I hereto.
The Issuer Trustee will deliver against payment of the purchase price
the Notes in the form of one or more permanent Global Notes in definitive form
(the "GLOBAL NOTES") deposited with the Note Trustee as custodian for The
Depository Trust Company (the "DTC") and registered in the name of Cede & Co.,
as nominee for DTC. Interests in any permanent Global Notes will be held only in
book-entry form through DTC, except in the
10
limited circumstances described in the Prospectus. Payment for the Notes shall
be made by the Underwriters in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to the
Representative drawn to the order of the Currency Swap Provider at the office of
_________________ not later than 10:00 A.M., New York City time, on October 24,
2002, or at such other time not later than seven full business days thereafter
as CSFBC and the Manager determine, such time being herein referred to as the
"CLOSING DATE," against delivery to the Note Trustee as custodian for DTC of the
Global Notes representing all of the Notes. The Global Notes will be made
available for checking at the above office at least 24 hours prior to the
Closing Date.
4. Offering by Underwriters. The Manager and the Issuer Trustee understand that
the several Underwriters propose to offer the Notes for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Issuer Trustee and the Members Equity Parties.
I. The Members Equity Parties, jointly and severally, covenant and agree with
each of the several Underwriters as follows:
(a) The Manager will file with the Commission pursuant to and in
accordance with Rule 430A and subparagraph (4) of Rule 424(b) copies of
an amended Prospectus containing all of the information omitted from
the Prospectus in reliance upon Rule 430A at the time the Registration
Statement became effective. The Manager will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Manager will advise the Representative promptly of any proposal
to amend or supplement the Registration Statement as filed or the
related Prospectus and subject to section 5(I)(c), will not effect such
amendment or supplementation without the Representative's consent
(which consent will not be unreasonably withheld); and the Manager will
also advise the Representative promptly of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Notes is required
to be delivered under the Securities Act in connection with sales by
any Underwriter or dealer, the Manager becomes aware of the occurrence
OF any event as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Securities Act, the Manager will promptly notify the
Representative of such event and will promptly prepare and file with
the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. Neither the
11
Representative's consent to, nor the Underwriters' delivery of to
offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, the Manager will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the effective date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the
Securities Act.
(e) The Manager will furnish to the Representative copies of each
Registration Statement (3 of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Notes is required to be delivered under the
Securities Act in connection with sales by any Underwriter or dealer,
the Prospectus and all amendments and supplements to such documents, in
each case in such reasonable quantities as the Representative requests.
The Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the effective time of the Registration
Statement. All other documents shall be so furnished as soon as
available. The Manager will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Manager will use its best efforts to arrange for the
qualification of the Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the
Representative designates and will use its best efforts to continue
such qualifications in effect so long as required for the distribution
provided that the Manager will not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
such State.
(g) So long as the Notes are outstanding, the Manager will, upon
request, furnish to the Representative (i) copies of each certificate,
the annual statements of compliance and the annual independent
certified public accountant's audit report on the financial statements
furnished to the Issuer Trustee or the Note Trustee pursuant to the
Basic Documents by first class mail as soon as practicable after such
statements and reports are furnished to the Issuer Trustee or the Note
Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) copies of all reports or other communications (financial or
other) furnished to holders of the Notes, and copies of any reports and
financial statements, if any, furnished to or filed with the
Commission, or any governmental or regulatory authority or any national
securities exchange, and (iv) from time to time such other information
concerning the Fund or the Manager as the Representative may reasonably
request.
(h) So long as the Notes are outstanding, the Manager will not be or
become, an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act.
12
(i) To the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by the Manager, the Manager
shall use its best efforts to furnish such documents and take any other
such action.
(j) The Manager will assist the Representative in making arrangements
with DTC, Euroclear and Clearstream, Luxembourg concerning the issue of
the Notes and related matters.
(k) The Manager will not take, or cause to be taken, any action and
will not knowingly permit any action to be taken which it knows or has
reason to believe would result in the Notes not being assigned the
ratings referred to in Section 6(n) below.
(l) Each Members Equity party, jointly and severally, will pay all
expenses (together with value added tax where applicable) incidental to
the performance of the Members Equity Parties' obligations under this
Agreement, for any filing fees and other expenses (including fees and
disbursements of underwriters' counsel and issuers' counsel) incurred
in connection with qualification of the Notes for sale under the laws
of such jurisdictions as the Representative designates and the printing
of memoranda relating thereto, for any fees charged by the independent
accountants, for any fees charged by the rating agencies for the rating
of the Notes, for any travel expenses of any of the Members Equity
Parties' officers and employees and any other expenses of any of
Members Equity Party in connection with attending or hosting meetings
with prospective purchasers of the Notes and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(m) The Manager will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and initial sale of the
Notes and on the execution and delivery of this Agreement. All payments
to be made by the Members Equity Parties hereunder shall be made
without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless the
Members Equity Parties are compelled by law to deduct or withhold such
taxes, duties or charges. In that event, the applicable Members Equity
Party shall pay such additional amounts as may be necessary in order
that the net amounts received after such withholding or deduction shall
equal the amounts that would have been received if no withholding or
deduction had been made.
(n) For a period from the date of this Agreement to the Closing Date,
neither the Manager or Members Equity will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, or file
with the Commission a registration statement under the Securities Act
relating to asset-backed securities, or publicly disclose the intention
to make any such offer, sale, pledge, disposition or filing, without
the prior written consent of the Representative (which consent
13
will not be unreasonably withheld) for a period beginning at the date
of this Agreement and ending at the later of the Closing Date or the
lifting of trading restrictions by the Representative.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the Issuer
Trustee from the sale of the Notes pursuant to this Agreement in the
manner specified in the Prospectus under the caption "Use of Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added goods and services or similar tax, fee or duty
(including court fees) in relation to the execution of, or any
transaction carried out pursuant to, the Basic Documents or in
connection with the issue and distribution of the Notes or the
enforcement or delivery of this Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred
to in Section 6 below and, in particular the Issuer Trustee shall
execute those of the Basic Documents required to be executed by the
Issuer Trustee not executed on the date hereof on or before the Closing
Date.
(d) The Issuer Trustee will ensure that the Security Trustee will
procure or cause to be procured that the charges created by or
contained in the Security Trust Deed are registered within all
applicable time limits in all appropriate registers in Australia.
(e) The Issuer Trustee will perform all its obligations under, and
subject to, each of the Basic Documents to which it is a party which
are required to be performed prior to or simultaneously with closing on
the Closing Date.
(f) The Issuer Trustee will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Notes not being assigned the
ratings referred to in Section 6(n) below.
(g) The Issuer Trustee will not prior to or on the Closing Date amend
the terms of any Basic Document to which it is a party (except if such
amendment does not affect the Fund) nor execute any of the Basic
Documents to which it is a party other than in the agreed form without
the consent of the Representative.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes on the Closing Date will
be subject to the accuracy of the representations and warranties on the part of
the Members Equity Parties and the Issuer Trustee herein, to the accuracy of the
statements of officers of the
14
Members Equity Parties and the Issuer Trustee made pursuant to the provisions
hereof, to the performance of the Members Equity Parties and the Issuer Trustee
of their obligations hereunder and to the following additional conditions
precedent:
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than 5:00 P.M., New York City time, on the date hereof or on such
later date to which you have consented; and no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment shall be in effect, and no proceedings for such purpose shall
be pending before or threatened by the Commission. The Prospectus,
including all price-related information previously omitted from the
prospectus which formed a part of the Registration Statement at the
time it became effective, in accordance with Rule 430A, shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the rules and
regulations under the Securities Act and in accordance with Section
5.I.(a) hereof; and prior to the Closing Date the Manager shall have
provided evidence satisfactory to the Representative of such timely
filing, and all requests for additional information shall have been
complied with to the satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of any of the Members
Equity Parties, the Issuer Trustee or any Swap Party and their
respective subsidiaries, in each case, taken as one enterprise, which,
in the judgment of a majority in interest of the Underwriters including
the Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Notes; (ii) any downgrading in the rating
of any debt securities of any of the Manager, Members Equity, the
Issuer Trustee or any Swap Party by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of the
Notes or any debt securities of any of the Manager, Members Equity or
the Issuer Trustee (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any change in United States,
Australian or international financial, political or economic conditions
or currency exchange rates or exchange controls as would, in the
judgment of a majority in interest of the Underwriters, including the
Representative, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Notes, whether in the
primary market or in respect of dealings in the secondary market; (iv)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, the London Stock Exchange or
any other exchange on which the Notes are listed, or
15
any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of any of the Manager, Members
Equity, the Issuer Trustee or any Swap Party on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S.
Federal, New York, London, England or Australian authorities; or (vi)
any outbreak or escalation of major hostilities or act of terrorism
involving the United States, London, England or Australia, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters, including the Representative, the
effect of any such outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Notes.
(c) The Representative shall have received a certificate, dated such
Closing Date, of the managing director, director or any chief general
manager of each Members Equity Party and (as to paragraphs (i) and (ii)
below only) of an authorized officer of the Issuer Trustee in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that: (i) the representations and warranties
of such entity in this Agreement are true and correct; (ii) such entity
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such Closing
Date; (iii) in the case of the Manager, no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission; and (iv) subsequent to the date of the most recent
financial statements supplied by the Members Equity Parties to the
Underwriters or the Representative on behalf of the Underwriters, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
such entity and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(d) Freehills, Australian counsel for Members Equity and the Manager,
shall have furnished to the Representative their written opinion, dated
the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters, a copy of which opinion is attached hereto as Exhibit A.
(e) Greenwood & Freehills Pty Limited, Australian tax counsel for
Members Equity and the Manager, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, a copy of which
opinion is attached hereto as Exhibit B.
16
(f) The Representative shall have received two letters, one dated the
date hereof and one dated the Closing Date, of Ernst & Young confirming
that they are independent public accountants within the standards
established by the American Institute of Certified Public Accountants
and the meaning of the Securities Act and the applicable published
rules and regulations thereunder (the "RULES AND REGULATIONS") and
stating to the effect that they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other financial
information contained in the Registration Statement (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Members Equity Parties and their subsidiaries subject to the internal
controls of such parties' accounting system or are derived directly
from such records by analysis or computation or from the collateral
tape containing the description of the Housing Loans) with the results
obtained from inquiries, a reading of such general accounting records
and collateral tape and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
(g) Mayer, Brown, ▇▇▇▇ & Maw, United States counsel for the Members
Equity Parties and the Issuer Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, to the effect that:
(1) The Note Trust Deed has been duly qualified under the Trust
Indenture Act;
(2) To such counsel's knowledge, there are no material contracts,
indentures, or other documents of a character required to be
described or referred to under either the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto;
(3) The Fund is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company"
as defined in the Investment Company Act;
(4) No consent, approval, authorization or order of, or filing
with, any governmental agency located in the United States or body
or any court located in the United States is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Notes by the Issuer
Trustee, except such as have
17
been obtained and made under the Securities Act and the Trust
Indenture Act and such as may be required under state securities
laws;
(5) The Registration Statement was filed and was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus either was filed with
the Commission pursuant to subparagraph (4) of Rule 424(b) on the
date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates, complied
as to form in all material respects with the requirements of the
Securities Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that any part
of the Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; the descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings are accurate and fairly present the
information required to be shown: it being understood that such
counsel need express no opinion as to the financial statements or
other financial data contained in the Registration Statement or
the Prospectus;
(6) The statements in the Prospectus under the Captions
"Description of the Class A Notes" and "Description of the
Transaction Documents", insofar as they purport to summarize
certain terms of the Notes and the applicable Basic Documents,
constitute a fair summary of the provisions purported to be
summarized;
(7) The statements contained in the Prospectus under the captions
"ERISA Considerations", "Legal Investment Considerations" and
"United States Federal Income Tax Matters", to the extent that
they constitute matters of federal law or legal conclusions with
respect thereto, while not purporting to discuss all possible
consequences of investment in the Notes, are correct in all
material respect with respect to those consequences or matters
that are discussed therein; and
(8) This Agreement constitutes
18
a legal, valid and binding obligation of each of Members Equity,
the Manager and the Issuer Trustee.
(h) Mayer, Brown, ▇▇▇▇ & Maw, United States federal income tax counsel
for the Members Equity Parties and the Issuer Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative,
a copy of which opinion is attached hereto as Exhibit C.
(i) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel for the Issuer Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters, a
copy of which opinion is attached hereto as Exhibit D.
(j) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Note Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters, a
copy of which is attached hereto as Exhibit E.
(k) Counsel to the Currency Swap Provider shall have furnished to the
Representative and the Members Equity Parties its written opinion in
form and substance satisfactory to the Representative, a copy of which
opinions will be attached hereto as Exhibit F.
(l) The Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Representative to rely on such
opinion as if it were addressed to the Representative.
(m) At the Closing Date, the Class A Notes shall have been rated "AAA"
by Standard & Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. ("Standard and Poor's"), "AAA" by Fitch Ratings
("Fitch") and "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's" and
together with Standard and Poor's and Fitch, the "Rating Agencies") as
evidenced by letters from the Rating Agencies.
(n) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
19
(o) On or prior to the Closing Date the Members Equity Parties and the
Issuer Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably
request.
7. Indemnification and Contribution.
(a) Each of the Members Equity Parties, jointly and severally, agrees to
indemnify and hold harmless each Underwriter and the Issuer Trustee, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter or the Issuer Trustee may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter or the Issuer Trustee in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that neither of the Members Equity Parties will be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to either of the Members
Equity Parties by (i) any Underwriter through the Representative specifically
for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below, (ii) CSFBC for inclusion in the Prospectus under the
heading "Description of the Class A Notes--The Swap Providers--Credit Suisse
First Boston International", or (iii) Deutsche Bank Securities Inc., one of the
Underwriters ("DBSI"), for inclusion in the Prospectus under the headings
"Description of the Class A Notes--The Swap Providers--Deutsche Bank AG, Sydney
Branch" and "Description of the Class A Notes--The Currency Swap--The Currency
Swap Provider"; and provided, further, that with respect to any untrue statement
or alleged untrue statement in or omission or alleged omission from any
preliminary prospectus the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased the Notes concerned,
to the extent that a prospectus relating to such Notes was required to be
delivered by such Underwriter under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such
20
person, at or prior to the written confirmation of the sale of such Notes to
such person, a copy of the Prospectus if the Manager had previously furnished
copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless Members Equity, the Issuer Trustee and the Manager, their
respective partners, their respective directors and their respective
officers and each person, if any, who controls such company within the
meaning of Section 15 of the Securities Act or section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to
which such company may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Manager by such
Underwriter through the Representative specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by
Members Equity, the Issuer Trustee or the Manager in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: (i) the concession and reallowance percentages appearing
in the [third] paragraph under the caption "Plan of Distribution" and
(ii) the information contained in the seventh and ninth paragraphs
under the caption "Plan of Distribution"; provided, however, that the
Underwriters shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Manager's failure to
perform its obligations under Section 5.I.(b) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
subsection (c) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified
21
party (who shall not, except with the consent of the indemnified party,
be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Members Equity Parties and the Issuer
Trustee on the one hand and the Underwriters on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Members Equity
Parties and the Issuer Trustee on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Members Equity Parties and the Issuer Trustee on the one hand and
the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Members Equity Parties and the
Issuer Trustee bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Members
Equity Parties and the Issuer Trustee or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (d). In addition, nothing in this Section 7
shall require any of the Members Equity Parties to contribute to the
amount paid or payable by: (i) CSFBC from any losses, claims, damages
or liabilities arising out of or based on information contained in or
omitted from the information set forth in the Prospectus under the
heading "Description of the Class A Notes--The Swap Providers -Credit
Suisse First Boston International", or (ii) DBSI from any losses,
22
claims, damages or liabilities arising out of or based on information
contained in or omitted from the information set forth in the
Prospectus under the headings "Description of the Class A Notes--The
Swap Providers--Deutsche Bank AG, Sydney Branch" and "Description of
the Class A Notes--The Currency Swap--The Currency Swap Provider".
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Members Equity Parties and the Issuer
Trustee under this Section shall be in addition to any liability which
the Members Equity Parties and the Issuer Trustee may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this
Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Members Equity Parties or the
Issuer Trustee, to each officer of the Members Equity Parties or the
Issuer Trustee who has signed the Registration Statement and to each
person, if any, who controls the Members Equity Parties within the
meaning of the Securities Act.
(f) To the extent that any payment of damages by Members Equity or the
Manager pursuant to subsection 7(a) above is determined to be a payment
of damages pursuant to paragraph 15 of Guidance Note AGN 120.3-
"Purchase and Supply of Assets (including Securities issued by SPVs)",
being a Guidance Note to Prudential Standard APS 120- "Funds Management
and Securitisation" or any successor thereto such payment shall be
subject to the terms therein (or the terms of any equivalent provision
in any replacement of Prudential Standard APS 120-).
(g) The remedies provided in this Section 7, are not exclusive and
shall not limit any rights or remedies which may otherwise by available
to any indemnified party at law or in equity.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Notes hereunder on the Closing Date and the aggregate
principal amount of Notes that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of Notes that the Underwriters are obligated to purchase on such Closing Date,
the Representative may make arrangements satisfactory to the Manager for the
purchase of such Notes by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion
23
to their respective commitments hereunder, to purchase the Notes that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes that the Underwriters are obligated to purchase
on such Closing Date and arrangements satisfactory to the Representative and the
Manager for the purchase of such Notes by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Manager, except as provided in
Section 9. As used in this Agreement, the term "UNDERWRITER" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Members Equity Parties, the Issuer Trustee or their respective officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the Members
Equity Parties, the Issuer Trustee or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If this Agreement is terminated pursuant to Section 8
or if for any reason the purchase of the Notes by the Underwriters is not
consummated, each of the Members Equity Parties, jointly and severally, shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Members Equity Parties, the
Issuer Trustee and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Notes have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Notes by the Underwriters is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv), (v) or (vi) of Section 6(b), the Members Equity Parties, jointly and
severally, will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Notes.
10. Selling Restrictions.
(a) No offering circular, prospectus or other disclosure document in relation to
any Notes has been lodged with the Australian Securities and Investments
Commission or the Australian Stock Exchange Limited. Each Underwriter severally
(but not jointly) represents and agrees that it:
(1) has not, directly or indirectly, offered for issue or sale or
invited applications for the issue of or for offers to purchase
nor has it sold, the Notes;
24
(2) will not, directly or indirectly, offer for issue or sale or
invited applications for the issue of or for offers to purchase
nor will it sell the Notes; and
(3) has not distributed and will not distribute any draft, preliminary
or definitive offering circular, or any advertisement or other
offering material,
in the Commonwealth of Australia, its territories or possessions ("AUSTRALIA")
or to any person who is actually known by the Underwriter (without an obligation
on the Underwriter to make any inquiry) to be resident of Australia for the
purposes of Section 128F of the Income Tax Assessment Act unless:
(1) the amount payable for the Class A Notes on acceptance of the
offer by each offeree or invitee is a minimum amount of A$500,000
(or its equivalent in another currency) (disregarding amounts, if
any, lent by ME Portfolio Management Limited or any other person
offering the Notes or any associate of it, which will also include
for this purpose the Issuer Trustee) or the offer or invitation is
otherwise an offer or invitation for which no disclosure is
required to be made under Part 6D.2 of the Corporations ▇▇▇ ▇▇▇▇
(Cth) and the Corporations Regulations made under the Corporations
▇▇▇ ▇▇▇▇ (Cth);
(2) the offer, invitation or distribution complies with all applicable
laws, regulations and directives in relation to the offer,
invitation or distribution and does not require any document to be
lodged with the Australian Securities and Investments Commission;
and
(3) the Class A Notes will not be acquired by an associate of ME
Portfolio Management Limited (which shall also include for this
purpose the Issuer Trustee and associates of the Issuer Trustee)
within the meaning of section 128F of the Income Tax Assessment
Act (other than in the capacity of a dealer, manager or
underwriter in relation to a placement of the Class A Notes) as
identified on a list provided by Members Equity Pty Limited and
attached hereto as Appendix I, which may be amended, from time to
time, by written notice to the Representative and the Underwriters
(the "LIST").
(b) Each Underwriter severally (but not jointly) agrees that, in
connection with the primary distribution of the Notes, it will not sell any
Notes to any person if, at the time of such sale, the employees of the
Underwriter aware of, or involved in, the sale knows, or has reasonable grounds
to suspect that, as a result of such sale, such Notes or any interest in such
Notes were being, or would later be acquired (directly or indirectly) by an
associate of the Issuer Trustee or Members Equity for the purposes of section
128F of the Income Tax Assessment Act.
25
(c) Each Underwriter agrees that it must offer the Notes for which it
subscribes for sale within 30 days of the issue of those Notes. Such offer must
only be by one of the following means (or a combination thereof);
(1) as a result of negotiations being initiated by the underwriter in
electronic form on Reuters or the electronic information system
made available to its subscribers by Bloomberg, L.P., specifying
in such offer the name of the issuer and the price at which the
Notes are offered for sale; or
(2) by the Underwriter offering those Notes for sale to at least 10
persons, each of whom must be (i) carrying on a business of
providing finance, or investing or dealing in securities, in the
course of operating in the financial markets; and (ii) not known
to be an associate of any of the others (within the meaning of
section 128F of the Income Tax Assessment Act), as identified on
the List.
(d) Each Underwriter will provide the Issuer Trustee (within five Business Days
of the offer of such Notes by it) a written statement which sets out the details
of the relevant offer.
(e) Each Underwriter (severally, not jointly) agrees to co-operate with
reasonable requests from the Issuer Trustee for information for the purposes of
assisting the Issuer Trustee to demonstrate that the public offer test under
section 128F of the Tax Act has been satisfied, provided that no Underwriter
shall be obliged to disclose the identity of the purchaser of any Note or any
information from which such identity might/would be capable of being
ascertained, or any information the disclosure of which would be contrary to or
prohibited by any relevant law, regulation or directive.
(f) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any Members Equity Party that
any action has been or will be taken in any jurisdiction outside the United
States by the Issuer Trustee or any Underwriter that would permit a public
offering of the Notes, or possession or distribution of the Prospectus or any
other offering material, in any country or jurisdiction where action for that
purpose is required. Each Underwriter (severally and not jointly) will comply
with all applicable securities laws and regulations in each jurisdiction in
which it purchases, offers, sells or delivers Notes or has in its possession or
distributes the Prospectus or any other offering material, in all cases at its
own expense.
(g) Each Underwriter (severally and not jointly) agrees that:
(1) it has not offered or sold and, prior to the expiry of a period of
six months from the Closing Date, will not offer or sell any Notes in
the United Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise
in circumstances which have not resulted and will
26
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offer of Securities Regulations 1995 (as
amended);
(2) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to
engage in investment activity within the meaning of Section 21 of the
Financial Services and Markets ▇▇▇ ▇▇▇▇ ("FSMA") received by it in
connection with the issue or sale of any Notes in circumstances in
which section 21(1) of the FSMA does not apply to the Issuer Trustee;
and
(3) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom.
(h) Each Underwriter (severally and not jointly) agrees that such Underwriter
will not distribute or circulate, whether directly or indirectly, the Prospectus
in Singapore other than to:
(1) persons in Singapore under circumstances in which any offer, sale
or invitation of Class A Notes does not constitute an offer, sale or
invitation to the public in Singapore; or
(2) the public or any member of the public in Singapore pursuant to,
and in accordance with the conditions of, an exemption invoked under
Subdivision (4) of Division 1 to Part XIII of the Securities and
Futures ▇▇▇ ▇▇▇▇ of Singapore and to persons to whom any Class A Notes
may be offered or sold under such exemption.
(i) Each Underwriter (severally and not jointly) agrees that such Underwriter
will not:
(1) offer or sell in Hong Kong, by means of any document (including,
without limitation, the Prospectus), any Class A Notes other than to persons
whose ordinary business it is to buy or sell shares or debentures whether as
principal or agent, or in circumstances which do not constitute an offer to the
public within the meaning of the Companies Ordinance (Cap. 32) of Hong Kong; and
(2) issue or possess for the purposes of issue any invitation,
advertisement or document relating to any Class A Notes in Hong Kong (except if
permitted to do so under the securities laws of Hong Kong) other than with
respect to Class A Notes intended to be disposed of to persons outside Hong Kong
or to be disposed of in Hong Kong only to persons whose business involves the
acquisition, disposal, or holding of securities, whether as principal or agent.
27
11. Certain Matters Relating to the Issuer Trustee.
(a) The Issuer Trustee enters into this Agreement and issues the Notes only in
its capacity as trustee of the Fund and in no other capacity. A liability
incurred by the Issuer Trustee acting in its capacity as Issuer Trustee of the
Fund arising under or in connection with this Agreement, the Notes or the Fund
is limited to and can be enforced against the Issuer Trustee only to the extent
to which it can be satisfied out of assets and property of the Fund out of which
the Issuer Trustee is actually indemnified for such liability. This limitation
of the Issuer Trustee's liability applies despite any other provisions of this
Agreement (other than section 11(c)) and extends to all liabilities and
obligations of the Issuer Trustee in any way connected with any representation,
warranty, conduct, omission, agreement or Transaction related to this Agreement,
the Notes or the Fund.
(b) Each Underwriter and each of the Members Equity Parties may not ▇▇▇ the
Issuer Trustee in respect of liabilities incurred by the Issuer Trustee, acting
in its capacity as Issuer Trustee of the Fund, in any capacity other than as
trustee of the Fund including seeking the appointment of a receiver (except in
relation to the assets of the Fund), or a liquidator, an administrator or any
other similar person to the Issuer Trustee or prove in any liquidation,
administration or arrangements of or affecting the Issuer Trustee (except in
relation to the assets of the Fund).
(c) The provisions of this Section 11 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under a Transaction Document (as defined in the Master Trust Deed) or by
operation of law there is a reduction in the extent of the Issuer Trustee's
indemnification or exoneration out of the assets of the Fund as a result of the
Issuer Trustee's fraud, negligence or willful default (as defined in the
Security Trust Deed).
(d) It is acknowledged that the Manager, the Mortgage Manager, the Security
Trustee, the Currency Swap Provider, the Liquidity Facility Provider, the
Payment Funding Facility Provider, the Redraw Funding Facility Provider, the
Fixed-Floating Rate Swap Providers, the Note Trustee, the Principal Paying
Agent, the Note Registrar and the Calculation Agent (each, a "RELEVANT PARTY")
are responsible under the Transaction Documents (as defined in the Master Trust
Deed) for performing a variety of obligations relating to the Fund. No act or
omission of the Issuer Trustee (including any related failure to satisfy its
obligations (including a breach of representation or warranty) under the
Transaction Documents) will be considered fraud, negligence or willful default
(as defined in the Security Trust Deed) of the Issuer Trustee for the purpose of
this Agreement to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party (other than any person for
whom the Issuer Trustee is responsible or liable for in accordance with any
Transaction Document (as defined in the Master Trust Deed) to fulfil its
obligations relating to the Fund or by any other act or omission of a Relevant
Party or by any other such person.
(e) No attorney, agent, receiver or receiver and manager appointed in accordance
with this Agreement has authority to act on behalf of the Issuer Trustee in a
way which exposes the Issuer Trustee to any personal liability and not act or
omission of any such
28
person will be considered fraud, negligence or willful default (as defined in
the Security Trust Deed) of the Issuer Trustee for the purpose of paragraph (c)
of this clause 11.
(f) The Issuer Trustee is not obligated to do or refrain from doing anything
under this Agreement (including incur any liability) unless the Issuer Trustee's
liability is limited in the same manner as set out in paragraphs (a) and (c) of
this clause.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process.
Each of the Members Equity Parties and the Issuer Trustee hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
Each of the Members Equity Parties and the Issuer Trustee irrevocably appoints
CT Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to it by the person
serving the same to the address provided in Section 16, shall be deemed in every
respect effective service of process upon it in any such suit or proceeding.
Each of the Members Equity Parties and the Issuer Trustee further agrees to take
any and all action as may be necessary to maintain such designation and
appointment of such agent in full force and effect for so long as the Notes
remain outstanding.
13. Satisfaction of Obligations in United States Dollars.
The obligation of any of the Members Equity Parties or the Issuer
Trustee in respect of any sum due to any Underwriter shall, notwithstanding any
judgment in a currency other than United States dollars, not be discharged until
the first business day, following receipt by such Underwriter of any sum
adjudged to be so due in such other currency, on which (and only to the extent
that) such Underwriter may in accordance with normal banking procedures purchase
United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
each of the Members Equity Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
14. Foreign Taxes. All payments to be made by the Issuer Trustee and any Members
Equity Party hereunder shall be made without withholding or deduction for or on
account of any present or future taxes, duties or governmental charges
whatsoever unless the Issuer Trustee or such Members Equity Party, as
applicable, is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Issuer Trustee or such Members Equity Party, as
applicable, shall pay such additional amounts as may be necessary in order that
the net amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction had been
made.
29
15. Waiver of Immunities. To the extent that any of the Issuer Trustee and
Members Equity Parties or any of their properties, assets or revenues may have
or may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection this Agreement, the Issuer Trustee and the Members Equity
Parties, as applicable, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
16. Judgment Currency. If any judgment or order in any legal proceeding against
any of the Issuer Trustee and the Members Equity Parties is given or made for
any amount due hereunder and such judgment or order is expressed and paid in a
currency (the "JUDGMENT CURRENCY") other than United States dollars and there is
any variation as between (i) the rate of exchange (the "JUDGMENT RATE") at which
the United States dollar amount is converted into Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange (the "MARKET
RATE") at which the person to whom such amounts is paid (the "PAYEE") is able to
purchase United States dollars with the amount of the Judgment Currency actually
received by the holder, then the difference, expressed in United States dollars,
between such amount calculated at the Judgment Rate and such amount calculated
at the Market Rate shall be indemnified (a) if negative by the Issuer Trustee
and the Members Equity Parties, as applicable, to the Payee and (b) if positive
by the Payee to the Issuer Trustee and the Members Equity Parties, as
applicable. The foregoing indemnity shall constitute a separate and independent
obligation of the Issuer Trustee, the Manager and Members Equity or the Payee,
as the case may be, and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "RATE OR EXCHANGE" shall
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
17. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representative at Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
Transactions Advisory Group; if sent to the Manager will be mailed, delivered or
telegraphed and confirmed to the Manager at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (Facsimile No. 612 9605 6200), Attention:
Funding Manager; if sent to the Issuer Trustee, mailed, delivered or telegraphed
and confirmed to the Issuer Trustee at Castlereagh Street, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (Facsimile No. 612-92299009), Attention: ▇▇▇▇▇▇ ▇▇▇;
and if sent to Members Equity, mailed, delivered or telegraphed and confirmed to
Members Equity at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ (Facsimile No. 613 96056200), Attention:
30
▇▇▇▇ ▇▇▇▇▇▇; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
18. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
19. Representation of Underwriters. The Representative will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by the Representative will be binding upon all the Underwriters.
20. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
21. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
31
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return the enclosed counterparts
hereof, whereupon it will become a binding agreement between the parties listed
below in accordance with its terms.
Very truly yours,
ME PORTFOLIO
MANAGEMENT LIMITED
By:
-----------------------------
Name:
Title:
PERPETUAL TRUSTEES
AUSTRALIA LIMITED
By:
-----------------------------
Name:
Title:
MEMBERS EQUITY PTY LIMITED
By:
-----------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
day first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------
Name:
Title:
Acting on behalf of itself
and as the Representative
of the several Underwriters
SCHEDULE I
PRINCIPAL AMOUNT OF CLASS A
Underwriter NOTES TO BE PURCHASED
Credit Suisse First Boston Corporation $_______________
Deutsche Bank Securities Inc. $_______________
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $_______________
National Australia Bank Limited, Hong Kong Branch $_______________
Total................................. $ 1,400,000,000
SCHEDULE A
SMHL GLOBAL FUND NO. 3
Form of Certificates pursuant to section 6(c) of the Underwriting Agreement
[OFFICER'S CERTIFICATE OF THE ISSUER TRUSTEE]
Date: ___________ ___, 2002
Credit Suisse First Boston Corporation
As Representative of the Underwriters
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
I, ________________, in my capacity as a __________________ of Perpetual
Trustees Australia Limited ("PTAL"), hereby certify that, to the best of my
knowledge after reasonable investigation:
(i) the representations and warranties of PTAL, in its capacity
as trustee of the SMHL Global Fund No. 3 (in such capacity,
the "Issuer Trustee"), in the Underwriting Agreement dated
October ___, 2002 (the "Underwriting Agreement"), among
Credit Suisse First Boston Corporation, as representative
("Representative") of the several Underwriters listed in
Schedule I to that agreement (the "Underwriters"), ME
Portfolio Management Limited, the Issuer Trustee and Members
Equity Pty Limited, are true and correct; and
(ii) the Issuer Trustee has complied with all agreements and
satisfied all conditions on its part to be performed or
satisfied under the Underwriting Agreement.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Underwriting Agreement.
By: ________________________________
Name:
Title:
[OFFICER'S CERTIFICATE OF THE MANAGER]
Date: ___________ ___, 2002
Credit Suisse First Boston Corporation
As Representative of the Underwriters
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
I, ________________, in my capacity as a __________________ of ME Portfolio
Management Limited (the "Manager"), hereby certify that, to the best of my
knowledge after reasonable investigation:
(i) the representations and warranties of the Manager in the
Underwriting Agreement dated October ___, 2002 (the
"Underwriting Agreement"), among Credit Suisse First Boston
Corporation, as representative ("Representative") of the
several Underwriters listed in Schedule I to that agreement
(the "Underwriters"), the Manager, Perpetual Trustees
Australia Limited, in its capacity as trustee of the SMHL
Global Fund No. 3, and Members Equity Pty Limited, are true
and correct;
(ii) the Manager has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under
the Underwriting Agreement;
(iii) no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are contemplated by the
Commission; and
(iv) subsequent to the date of the most recent financial
statements supplied by the Members Equity Parties to the
Underwriters or the Representative on behalf of the
Underwriters, there has been no material adverse change, nor
any development or event involving a prospective material
adverse change, in the condition (financial or other),
business, properties or results of operations of the Manager
and its subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Underwriting Agreement.
By: ________________________________
Name:
Title:
[OFFICER'S CERTIFICATE OF MEMBERS EQUITY]
Date: ___________ ___, 2002
Credit Suisse First Boston Corporation
As Representative of the Underwriters
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
I, ________________, in my capacity as a __________________ of Members Equity
Pty Limited ("Members Equity"), hereby certify that, to the best of my knowledge
after reasonable investigation:
(i) the representations and warranties of Members Equity in the
Underwriting Agreement dated October ___, 2002 (the
"Underwriting Agreement"), among Credit Suisse First Boston
Corporation, as representative ("Representative") of the
several Underwriters listed in Schedule I to that agreement
(the "Underwriters"), ME Portfolio Management Limited,
Perpetual Trustees Australia Limited, in its capacity as
trustee of the SMHL Global Fund No. 3, and Members Equity,
are true and correct;
(ii) Members Equity has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under
the Underwriting Agreement; and
(iii) subsequent to the date of the most recent financial
statements supplied by the Members Equity Parties to the
Underwriters or the Representative on behalf of the
Underwriters, there has been no material adverse change, nor
any development or event involving a prospective material
adverse change, in the condition (financial or other),
business, properties or results of operations of the Manager
and its subsidiaries taken as a whole except as set forth in
or contemplated by the Prospectus.
(iv) Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Underwriting
Agreement.
By: ________________________________
Name:
Title:
Exhibit A
Opinion of Freehills
[TO BE ATTACHED]
Exhibit B
Opinion of Greenwood & Freehills Pty Limited
[TO BE ATTACHED]
Exhibit C
U.S. federal tax opinion of Mayer, Brown, ▇▇▇▇ & Maw
[TO BE ATTACHED]
Exhibit D
Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
[TO BE ATTACHED]
Exhibit E
Opinion of Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
[TO BE ATTACHED]
Exhibit F
Opinion of Counsel to
the Currency Swap Provider
[TO BE ATTACHED]
APPENDIX I
A. LIST OF ASSOCIATES COMPANIES
AFRICA - January 1st, 2002
AXA
AXA Assurances Cote d'Ivoire (Ivory Coast)
AXA Vie Cote d'Ivoire (Ivory Coast)
AXA Assurances Gabon (Gabon)
AXA Vie Gabon (Gabon)
AXA Assurances Cameroun (Cameroon)
AXA Vie Cameroun (Cameroon)
AXA Assurances Senegal (Senegal)
C.S.A.R. Vie (Senegal)
U.G.A.R. (Guinea)
UNITED STATES - ALLIANCE - JANUARY 1st, 2002
AXA
AXA Financial, Inc.
The Equitable Life Assurance Society of the United States
A.C.M.C. Inc.
Alliance Capital Management L.P.
Alliance Capital Management Corporation of Delaware
Equitable Holdings LLC
ECMC, LLC
Alliance Capital Management Corporation
Alliance Capital Management Holdings L.P.
ASSISTANCE - JANUARY 1st, 2002
AXA
AXA Assistance SA
AXA Assistance France
AXA Assistance Services
Societe Internationale de Maintenance et de Services
Truck Assistance International
AXA Assistance Protection
Protection 24
Emergency Medical Care (UK)
Inter Partner Assistance (Belgium)
Inter Partner Assistance Espana SA (Spain)
ASSISTANCE - EUROPE - AFRICA - JANUARY 1st, 2002
AXA
Inter Partner Assistance (Belgium)
Inter Partner Assistance Services (Belgium)
AXA Assistance Tchequie (Czech Republic)
IPA Servizi Spa (Italy)
AXA Assistance GmbH (Germany)
Inter Partner Assistance Services BV (Netherlands)
AXA Assistance Maroc (Morocco)
AXA Assistance Polska SA (Poland)
Inter Partner Assistance Servicos (Portugal)
AXA Assistance Nordic (Sweden)
IPA Y Ardim Ve Destek Hilmztleri Ticaret Ltd (Turkey)
AXA Assistance UK (United Kingdom)
ASSISTANCE - AMERICA - ASIA - JANUARY 1st, 2002
AXA
Inter Partner Assistance (Belgium)
AXA Asistencia Argentina (Argentina)
AXA Assistance Australia PTY Ltd (Australia)
Inter Partner Assistance S/C Ltda (Brazil)
AXA Assistance Canada Inc (Canada)
AXA Asistencia Chile SA (Chile)
AXA Asistencia Colombia SA (Colombia)
Inter Partner Assistance Hong Kong Ltd (Hong Kong)
IPA Taiwan Ltd (Taiwan)
PT AXA Assistance Indonesia (Indonesia)
Inter Partner Assistance Japan Ltd (Japan)
AXA Assistance Mexico (Mexico)
AXA Assistance PTE Ltd (Singapore)
AXA Assistance Company Ltd (Thailand)
AXA Asistencia Uruguay (Uruguay)
AXA Assistance USA Inc (USA)
AXA Asistencia Venezuela (Venezuela)
AUSTRALIA - NEW ZEALAND - JANUARY 1st, 2002
AXA
AXA Insurance Australia Ltd (Australia)
SG Holdings Ltd (New Zealand)
AXA Asia Pacific Holdings Limited (Australia)
AXA UK
AXA Equity & Law Life Assurance Society (UK)
AXA Insurance plc
GRE Holdings Limited (Australia)
Moneymark Corporation Limited (New Zealand)
AUSTRALIA - AXA ASIA PACIFIC HOLDINGS LIMITED - JANUARY 1st, 2002
AXA
AXA Equity & Law Life Assurance Society (UK)
AXA Asia Pacific Holdings Limited
The National Mutual Life Association of Australasia Limited
Australian Casualty & Life Limited
National Mutual Funds Management (Global) Limited
P.T. AXA Life Indonesia (Indonesia)
AXA Asia Pacific Finance Limited
NMH Executive Plan (Australia) Pty Limited
National Mutual Funds Management (International) Limited
AXA China Region Limited (Hong Kong)
Detura Ltd
National Mutual International Pty Ltd
NM Insurances (Singapore) Pte Ltd
AXA Life Insurance Singapore Pte Ltd
AXA Australia Health Insurance Pty Limited
AXA Asia Pacific Holdings Executive Plan (Australia) Pty Limited
Phillippine AXA Life Insurance Corporation (Phillippines)
Alliance Capital Management Australia Limited
SG (Australia) Holdings Pty Ltd.
SG Holdings Ltd. (New Zealand)
Krungthai AXA Life Insurance Co. Ltd. (Thailand)
Members Equity Pty Limited
Alliance Capital (USA)
Industry Fund Services Pty Ltd.
AXA CORPORATE SOLUTIONS - JANUARY 1st, 2002
Simplified
AXA
Paneurore (Luxembourg)
Saint ▇▇▇▇▇▇ Re
AXA Corporate Solutions
AXA Cessions
AXA Corporate Solutions Assurance
AXA UK
English & Scottish
AXA CORPORATE SOLUTIONS - EUROPE - JANUARY 1st, 2002
AXA Corporate Solutions
AXA Reinsurance UK Holding
AXA Global Risks (UK) Ltd
AXA Corporate Solutions Services (France)
AXA Corporate Solutions Assurance (France)
C.G.R.M.
AXA Cessions (France)
AXA Re Finance
SPS Re
AXA Reinsurance UK Plc
AXA Corporate Solutions Services UK Limited
Ecorisk (France)
Futur Re (Luxembourg)
URS Corp. (USA)
AXA Corporate Solutions UK branch
AXA Corporate Solutions Madeira branch
AXA Corporate Solutions Assurance UK branch
AXA Corporate Solutions Assurance German branch
AXA Corporate Solutions Assurance Italian branch
AXA Corporate Solutions Assurance Marine branch
AXA Corporate Solutions Assurance Spanish branch
AXA Re Finance Madeira Branch
AXA CORPORATE SOLUTIONS - NORTH AMERICA - ASIA/PACIFIC
JANUARY 1st, 2002
AXA
AXA Corporate Solutions
AXA Corporate Solutions Asia Pacific
AXA America Corporate Solutions
AXA Corporate Solutions Reinsurance Company
AXA Re Property & Casualty
AXA Re America Insurance Company
AXA Corporate Solutions Life Reinsurance Company
AXA Space AXA Global Risks US Holdings
AXA Corporate Solutions Insurance
AXA Corporate Solutions Excess and Surplus Lines Insurance
AXA Columbia (Germany)
Associated Insurance Management
AXA CORPORATE SOLUTIONS - AMERICA - ASIA/PACIFIC -
MARCH 31st, 2002
AXA
AXA Corporate Solutions
AXA Corporate Solutions Asia Pacific Pte Ltd.
AXA Corporate Solutions Marine Services Ltd.
AXA Corporate Solutions Services Japan Company Limited
Risc Limited (Bermuda)
AXA America Corporate Solutions
AXA Corporate Solutions Reinsurance Company
AXA Space
AXA Delaware LLC
AXA Re Property & Casualty
AXA Re America Insurance Company
AXA Corporate Solutions Lloyds Insurance of Texas
AXA Corporate Solutions Life Reinsurance Company
AXA Corporate Solutions Insurance Company
AXA Corporate Solutions Excess and Surplus Lines Insurance (Arkansas)
UNITED STATES - AXA FINANCIAL INC. - JANUARY 1st, 2002
AXA
AXA Financial Inc.
AXA Client Solutions, LLC
The Equitable Life Assurance Society of the United States
The Equitable of Colorado, Inc.
Equitable Holdings, LLC
Alliance Capital Management LP
AXA Distributors LLC
AXA Distributions Holding Corporation
AXA Network, LLC
AXA Advisors, LLC
AXA INVESTMENT MANAGERS - FRANCE - UK - JANUARY 1st, 2002
AXA
AXA France Assurance and Insurance and Reinsurance Companies
National Mutual Funds Management International Inc.
AXA Belgium S.A.
AXA Konzern AG
AXA UK Plc
AXA Leven
AXA Investment Managers
AXA Multimanager Ltd (UK)
AXA Multimanager (USA)
AXA Multimanager SA (France)
AXA Investment Managers Limited (UK)
AXA Asset Management Ltd (UK)
AXA Investment Managers UK Holdings Limited (UK)
AXA Investment Managers UK Limited (UK)
AXA Investment Managers Madrid (Spain)
AXA Real Estate Investment Managers UK Limited (UK)
AXA Investment Managers Deutschland
AXA Investment Managers GS (UK)
AXA Asset Management Consultants (France)
AXA Investment Managers Paris (France)
AXA Gestion FCP (France)
AXA Gestion Interessement (France)
AXA Fonds Trusts (Germany)
AXA INVESTMENT MANAGERS - EUROPE (OTHER COUNTRIES)
JANUARY 1st, 2002
AXA
AXA Investment Managers
AXA Investment Managers Brussels (Belgium)
AXA Funds Management (Luxembourg)
AXA Investment Managers Den ▇▇▇▇ (Netherlands)
AXA Asset Managers Deutschland (Germany)
AXA Investment Managers Deutschland (Germany)
AXA Funds Trusts (Germany)
AXA Investments Managers Milano (Italy)
AXA INVESTMENT MANAGERS - UNITED STATES - ASIA
JANUARY 1st, 2002
AXA
AXA Investment Managers
AXA Investment Managers Hong Kong Ltd (Hong Kong)
AXA Investment Managers HKSAR (Hong Kong)
AXA Investment Managers Tokyo (Japan)
AXA Investment Managers Holding US Inc. (USA)
AXA Investment Managers Rose Inc (USA)
AXA Investment Managers ▇▇▇▇▇▇▇▇▇ (USA)
AXA Global Structured Products Inc (USA)
AXA Investment Managers North America (USA)
AXA INVESTMENT MANAGERS - PRIVATE EQUITY - JANUARY 1st, 2002
AXA
AXA Investment Managers
AXA Investment Managers Private Equity (France)
AXA Investment Managers Private Equity Funds of Funds LLC (USA)
AXA Investment Managers Private Equity Europe SA (France)
AXA Asset Management Private Equity (France)
AXA Private Equity Germany GmbH (Germany)
AXA MILLESIMES - JANUARY 1st, 2002
AXA
AXA Millesimes
Quinta do Noval Porto (Portugal)
Quintoval Porto (Portugal)
Disznoko RT Tokai (Hungary)
Oria
S.C.I. Domaine de l'Arlot Bourgogne
SCE Domaine de l'Arlot Bourgogne
SNC ▇▇▇▇▇▇ Longueville
Societe d'exploitation ▇▇▇▇▇▇ Longueville
Chateau Cantenac ▇▇▇▇▇
Societe d'exploitation Cantenac ▇▇▇▇▇
▇▇ Chateau Suduiraut
Societe d'exploitation Chateau Suduiraut
SCI Tour Pibran
SARL Tour Pibran
Chateaux & Associes
C.M.G.C.
Entrepots du Medoc
Chateaux & Associes l'Entrepot
AXA REAL ESTATE INVESTMENT MANAGERS - JANUARY 1st, 2002
AXA
AXA Investment Managers
AXA Konzern AG
AXA Real Estate Investment Managers
AXA Real Estate Investment Managers Ltd. (UK)
AXA Real Estate Investment Managers Italia (Italy)
AXA Real Estate Investment Managers Iberica (Spain)
AXA Real Estate Investment Managers France
AXA Real Estate Investment Managers Benelux (Belgium)
AXA Investment Managers UK Holding Limited
AXA Imobilien
AXA ▇▇▇▇▇▇▇ Fonds
AXA Real Estate Managers Deutschland
AXA Real Estate Investment Managers UK
UNITED KINGDOM AXA UK - JANUARY 1st, 2002
AXA
AXA Equity & Law Plc
AXA UK PLC
Guardian Royal Exchange Plc
AXA Insurance Plc
AXA Holdings Ireland Limited (Ireland)
AXA Insurance UK Plc
AXA General Insurance Limited
AXA PPP Healthcare Limited
AXA Direct Insurance Limited
AXA Sun Life Holdings Plc
AXA Sun Life Plc
AXA Sun Life Direct
Sun Life Assurance Society Plc
BELGIUM - JANUARY 1st, 2002
AXA
AXA Holdings Belgium
AXA Belgium S.A.
L'Ardenne Prevoyante
UAB
Assurances de la Poste-Vie
Assurances de la Poste
AXA Bank Belgium
AXA & Degroof Funds Portfolio
Banque Degroof
Auxifina
BELGIUM - HOLDING AND FINANCIAL COMPANIES - JANUARY 1st, 2002
AXA
AXA Bank Belgium
Cogifi
Camo Holdings
Auxfina
BENELUX - JANUARY ▇▇▇, ▇▇▇▇
▇▇▇
▇▇▇ ▇▇ (▇▇)
Guardian Royal Exchange Plc (UK)
AXA Insurance plc (UK)
Guardian Royal Exchange International (Holdings) B.V. (The Netherlands)
Vinci BV
AXA Holdings Belgium (Belgium)
Gelderland (The Netherlands)
AXA Nederland B.V. (The Netherlands)
AXA Belgium S.A. (Belgium)
AXA Bank Belgium (Belgium)
AXA Luxembourg SA (Luxembourg)
BRUNEI - MALAYSIA - THE PHILIPPINES - JANUARY 1st, 2002
AXA
AXA AFFIN Assurance Berhard (Malaysia)
AXA Insurance Sdn Bhd (Brunei)
AXA Asia Pacific Holdings Limited (Australia)
Philippine AXA Life Insurance Corporation (The Philippines)
First Metro Investment Corporation
CANADA - JANUARY 1st, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇▇▇ Inc.
AXA Assurances Inc.
AXA Insurance (Canada)
AXA Canada Tech. Inc
InnovAssur, Assurances Generales Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ - JANUARY 1st, ▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇▇▇ Inc.
AXA Insurance (Canada)
AXA Assurances Inc.
Anglo Canada General Insurance Company
Services Financiers AXA Assurances Inc.
SecuriGroupe Inc.
Insurance Corporation of Newfoundland Limited
AXA Pacific Insurance Company
AXA Assurances Agricoles Inc.
AXA Canada Tech. Inc
InnovAssur, Assurances Generales Inc.
CHINA including HONG KONG - JANUARY 1st, 2002
AXA
AXA General Insurance Hong Kong Ltd
AXA Asia Pacific Holdings Limited
National Mutual International Pty Ltd
AXA China (France)
AXA Holdings Pte Ltd (Singapore)
AXA China Region Limited (Hong Kong)
AXA Minmetals Assurance Co. Ltd (China)
AXA Life Insurance (Hong Kong)
AXA Insurance Hong Kong Ltd
E-BUSINESS - JANUARY 1st, 2002
AXA
AXA Insurance Holding Co.
AXA Japan Portal Co. Ltd.
AXA European e-Services
AXA eSolutions GmbH
AXA Konzern AG
FINANCIAL SERVICES - JANUARY 1st, 2002
AXA
AXA France Assurances
AXA Assurances Vie
AXA Conseil Vie
AXA France Finance
Compagnie Financiere de Paris
SOFAPI
Holding SOFFIM
AXA Credit
AXA Banque
Banque des Tuileries
Sofinad
Colisee Suresnes
Compagnie Financiere de Paris Credit
CFPCC (USA)
GERMANY - JANUARY 1st, 2002
AXA
Vinci BV
Kolnische Verwaltungs AG fur Versicherungswerte
AXA Konzern AG
GERMANY - INSURANCE COMPANIES - JANUARY 1st, 2002
AXA
AXA Konzern AG (AXA KAG)
AXA ART Versicherung AG
AXA Versicherung AG
AXA Lebensversicherung AG
AXA Bausparkasse AG
Deutsche Arzteversicherung AG
AXA Kranken Versicherung AG
AXA Bank Frankfurter Bodenkreditbank
▇▇▇▇▇▇ Rechisschultz-Versicherungs-AG
AXA Konzern AG
AXA Colonia Insurance Ireland Plc (Ireland)
"die Alternative" Versicherungs AG
DARAG
Deutsche Arzte-Versicherung Allgemeine Versicherungs-AG
AXA Versicherung AG (Austria)
AXA Biztosito Rt (Hungary)
GERMANY - "ART INSURANCE" SUBSIDIARIES -
JANUARY 1st, 2002
AXA
AXA Konzern AG (AXA KAG)
AXA ART Versicherung AG (Cologne)
AXA Versicherung AG (Cologne)
AXA ART Versicherung AG (Brussels)
AXA Nordstern France S.A. (Paris)
AXA ART Assurances S.A. (Paris)
AXA ART Insurance Ltd (London)
AXA ART Services Ltd (London)
AXA ART Seguros y Reaseguros S.A. (Madrid)
AXA ART Versicherung AG (Zurich)
AXA ART Assicurazioni SpA (Milan)
AXA ART Holdings Inc. (New York)
Fine Art Service International Inc. (New York)
AXA ART Insurance Corporation (New York)
FRANCE - HOLDING COMPANIES -March 19, 2002
AXA
FINAXA
AXA Assurances IARD Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
BNP PARIBAS
FDR Participations
Colisee Vendome
A.N.F.
Cie Financiere des Agents Generaux d'AXA
C.F.G.A. 2000
Jour Finance
AXA Participations 2
Colisee Excellence
Societe Beaujon
Vamopar
Mofipar
AXA China
AXA Technology Services
INDONESIA - JANUARY 1st, 2002
AXA
AXA Asia Pacific Holdings Limited (Australia)
PT Asuransi AXA Indonesia
PT AXA Life Indonesia
FRANCE - INSURANCE ACTIVITIES - MARCH 19th, 2002
AXA
FINAXA
AXA Assurances IARD Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
AXA Conseil Vie Assurance Mutuelle
AXA France Assurance
AXA Assistance SA
AXA Direct
AXA Konzern AG (Germany)
AXA Assistance France
Direct Assurance IARD
Direct Assurance Vie
Albingia Versicherungs (Germany)
AXA Assurances IARD
AXA Assurances Vie
AXA Conseil Vie
AXA Courtage IARD
AXA Collectives
AXA Conseil IARD
Juridica
AXA Caraibes (Martinique)
AXA France Finance
AXA Assurcredit
Argovie
ITALY - JANUARY 1st, 2002
AXA
AXA Italia S.p.A.
AXA Assicurazioni
Centurion Immobiliare S.p.A.
AXA SIM
AXA Partecipazioni
AXA Carlink
AXA Interlife
AXA France Assurance
AXA Collectives
AXA Collectives Italy Branch
UAP Vita
IRELAND - JANUARY 1st, 2002
AXA
AXA UK Plc
Guardian Royal Exchange Plc
AXA Insurance plc (UK)
AXA Holdings Ireland Limited
AXA Ireland Limited
AXA Direct Limited
AXA PMPA Insurance Limited
AXA Group Services Limited
AXA Konzern AG
AXA Colonia Insurance (Ireland) plc
JAPAN - JANUARY 1st, 2002
AXA
AXA Insurance Plc (UK)
The Royal Exchange Assurance Plc
AXA Insurance Holding Co.
AXA Group Life Insurance
AXA Life Insurance Co.
AXA Japan Portal
AXA non-life Insurance Co. Ltd.
LATIN AMERICA - JANUARY 1st, 2002
AXA
AXA Argentina Inversiones (Argentina)
Caledeco (Argentina)
Caledonia Argentina (Argentina)
AXA Seguros (Argentina)
AXA Seguros Uruguay
AXA Seguros Brasil SA (Brazil)
Voltaire Participacoes (Brazil)
UAP International do Brasil (Brazil)
Rio ▇▇▇▇▇▇ Participacoes SA (Brazil)
Rio ▇▇▇▇▇▇ Seguradora SA (Brazil)
AXA Inversiones Chile Limitada (Chile)
AXA BCI (Chile)
AXA Seguros Chile Generales (Chile)
AXA Seguros Chile Vida (Chile)
▇▇▇▇▇▇▇▇ Aranha
LUXEMBOURG- JANUARY 1st, 2002
AXA
AXA Holdings Belgium
AXA Luxembourg SA
AXA Assurances Luxembourg
AXA Assurances Vie Luxembourg
Finaxa Luxembourg
Crealux
AXA Bank Belgium
Banque IPPA & Associes
MAGHREB - MIDDLE EAST - JANUARY 1st, 2002
AXA
AXA-ONA (Morocco)
AXA Assurance Maroc (Morocco)
SOMAFIC (Morocco)
ACRED (Morocco)
AXA Middle East ▇▇▇ Lebanon (Groupe SLF 49%)
AXA Holding ▇▇▇ (Lebanon)
AXA Insurance EC (Bahrein) Saudi Arabia
ONA
THE NETHERLANDS - JANUARY 1st, 2002
AXA
AXA Holdings Belgium
AXA Nederland B.V.
AXA Verzekeringen B.V.
AXA Leven N.V. (Life)
AXA ▇▇▇▇▇▇ N.V. (P&C)
AXA Zorg N.V. (Healthcare)
Unirobe Groep B.V.
AXA OWNERSHIP STRUCTURE -MARCH 19th, 2002
AXA
Mutuelles AXA
FINAXA
ANF
BNP PARIBAS
PORTUGAL - JANUARY ▇▇▇, ▇▇▇▇
▇▇▇
▇▇▇ ▇▇ (▇▇)
AXA Insurance Plc (UK)
The Royal Exchange Assurance Plc
The Royal Exchange Assurance Portuguese Branch
AXA Portugal Companhia de Seguros SA
AXA Corporate Solutions Assurance
AXA Portugal Companhia de Seguros de Vida SA
AXA Conseil Vie
AXA France Assurance
UAP International Madeira SGPS
SINGAPORE - TAIWAN - JANUARY 1st, 2002
AXA
AXA France Assurance
AXA Assurances IARD
AXA Asia Pacific Holdings Limited (Australia)
National Mutual International Pty Ltd (Australia)
NM Insurances (Singapore) Pte Ltd (Singapore)
AXA Life Insurance Singapore Pte Ltd (Singapore)
AXA UK (UK)
AXA Insurance Plc (UK)
AXA Insurance Singapore (Singapore)
AXA Holdings Pte Ltd (Singapore)
AXA Asia Regional Centre Pte Ltd (Singapore)
SPAIN - JANUARY 1st, 2002
AXA
AXA Aurora
AXA Aurora Iberica, S.A., de Seguros y Reaseguros
Hilo Direct S.A. de Seguros y Reaseguros
Banco Bilbao Vizcaya Argentaria
Z.R.Z., S.L.
Asegur Agencia de Seguros, S.A.
AXA Aurora Vida, S.A. de Seguros y Reaseguros
AXA Aserores Seguros e Inversiones Agencia de Seguros
Ayuda Legal, S.A. de Seguros y Reaseguros
AXA Ibercapital Agencia de Valores, S.A.
SWITZERLAND - JANUARY 1st, 2002
AXA
AXA Compagnie d'Assurances sur la Vie
AXA Compagnie d'Assurances
Juridica Compagnie d'assurance de la Protection Juridique SA
THAILAND- JANUARY ▇▇▇, ▇▇▇▇
▇▇▇
▇▇▇ ▇▇ (▇▇)
Guardian Royal Exchange International (Holdings) BV (The Netherlands)
Compass Holding Company Limited
AXA Insurance Public Company Limited (Bank of Asia 22.07%; Tru-Way 11.08%)
ASM Holdings Thailand
AXA Asia Pacific Holdings Limited (Australia)
National Mutual International Pty Ltd. Australia
Krungthai AXA Life Insurance Co. Ltd.
Bank of Asis Thru-Way Krungthai Bank
TURKEY - JANUARY 1st, 2002
AXA
AXA Oyak Holding A.S.
Oyak
AXA Oyak Hayat Sigorta A.S.
Emlak Bank Asi
TPAO Personeli Vakfi
AXA Oyak Sigorta A.S.
Sigorta A.S.
UNITED KINGDOM - JANUARY 1st, 2002
Simplified
AXA
AXA UK Plc
AXA Asset Management Ltd
AXA Investment Managers UK Holdings Limited
AXA Sun Life Holdings Plc
Guardian Exchange Plc
AXA Equity & Law Plc
AXA Reinsurance UK
AXA Corporate Solutions
AXA Global Risks (UK) Ltd.
AXA UNIVERSITY COMPANIES - AXA OUEVRES D'ART - JANUARY 1st, 2002
AXA
FINAXA
Mutuelles AXA
AXA Ouevres d'Art
AXA ▇▇▇▇▇ ▇▇▇▇, Inc. (USA)
AXA Cantenac ▇▇▇▇▇
AXA Suduiraut
Lor Patrimoine
UNITED STATES - JANUARY 1st, 2002
Simplified
AXA
AXA Financial, Inc.
The Equitable Life Assurance Society of the United States
Alliance Capital Management L.P. "Alliance"
AXA Corporate Solutions
AXA Global Risks US Holdings Inc.
AXA Corporate Solutions America
AXA Investment Managers
AXA ▇▇▇▇▇▇▇▇▇ Group LLC
AXA Global Structured Products
AXA Investment Managers New York
B. LIST OF 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 Property Services Australia Pty Ltd
(formerly Perpetual Australia Property Services (NSW) Pty Ltd)
Perpetual Service Network Pty Limited
ASX Perpetual Registrars Limited
Australian Trustees Pty Limited
Australian Trustees Limited
Commonwealth Trustees Pty Limited
Investor Marketplace Limited
Perpetual Australia Pty Limited
Perpetual Investment Management Limited
(formerly Perpetual Management Limited)
Perpetual Nominees Limited
(formerly P.T.A. Nominees Limited)
Perpetual Services Pty Limited
Perpetual Trustees S.A. Limited
Queensland Trustees Pty Limited
Perpetual Fund Services 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 Trustees Queensland Ltd
Perpetual Trustee Company (Canberra) Ltd
Charleville Leasing Ltd
Perpetual Trustees W.A. 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Finance Pty Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Partnership Pty Ltd
C. FORMER AXA COMPANIES
Perpetual Trustees Consolidated Limited
(formerly AXA Trustees Limited)
Perpetual Nominees (Canberra) Limited
(formerly N.M.L. Nominees (Canberra) Limited)
Perpetual Custodian Nominees Pty Ltd
(formerly T&G Guardian Corporation Pty Ltd)
Perpetual Victoria Nominees Pty Ltd
(formerly National Trustees Nominees Proprietary Limited)
D. LIST OF ASSOCIATES OF MEMBERS EQUITY
Industry Fund Services Pty Ltd (as trustee of IFBT)
Industry Administration Services Pty Ltd
IFST Pty Ltd
Super Members Investments Limited
Industry Funds Credit Control Pty Ltd
Industry Funds Financial Services Pty Ltd
SBLB Pty Ltd
IFS ▇▇▇▇▇▇▇ Management Services Pty Ltd
Accountants Superannuation Fund
Australian Government Employees Superannuation Trust
Australian Preservation Fund Pty Ltd
Australian Retirement Fund
Building Union Superannuation Scheme (OLD)
CARE Superannuation Plan Pty Ltd
Construction and Building Union Superannuation Fund
Concept One Superannuation Plan
Superannuation Plan for Electrical Contractors
Catholic Superannuation and Retirement Fund
Elders Superannuation Fund
Finsuper Ltd
Furniture Industry Retirement and Superannuation Trust
Health Employees Superannunation Trust Australia
Host Plus Superannuation Fund
Independent Schools Super Pty Ltd
JUST Pty Ltd
Local Authotite Superannuation Board
Local Super
Labour Union Co-operative Retirement Fund
MTAA Superannuation Fund
Pulp & Paper Workers Superannuation Fund
Printing Industry Superannuation Fund
Queensland Coal & Oil Shale Mining Industry Superannuation Ltd
Queensland Independent Education & Care Superannuation Trust
Queensland Roman Catholic Retirement Plan
Quadrant Superannuation Scheme
REI Superannuation Fund
Professional Associations Superannuation Pty Ltd
Stevedoring Employees Retirement Fund
Sisters of Mercy Staff Superannuation Pty Ltd
Superannuation Plan for Electrical Contractors (OLD)
Seafarers Retirement Fund
Statewide Superannuation Trust
Superannuation Trust of Australia
Sunsuper
Tasplan Super
Timber Industry Superannuation Scheme
TWU Superannuation Plan
TESS Uni-Super
WA Local Government Superannuation Plan
Westscheme Pty Ltd