<PAGE>
EXHIBIT 1.1
UNDERWRITING AGREEMENT
US$[_]
Perpetual Trustee Company Limited
SERIES 2000 -- 2G MEDALLION TRUST
Mortgage Backed Floating Rate Notes Due 2031, Class A-1
UNDERWRITING AGREEMENT
----------------------
September ____, 2000
Merrill Lynch, Pierce Fenner & Smith, Incorporated
("Merrill Lynch")
As Representative of the
Several Underwriters Listed
in Schedule I
________________________
________________________
Ladies and Gentlemen:
Perpetual Trustee Company Limited, ACN 000 001 007, a company incorporated
in New South Wales, Australia ("Perpetual"), acting in its capacity as trustee
of the Series 2000-2G Medallion Trust (the "Trust", and Perpetual in that
capacity being the "Issuer Trustee"), acting at the direction of Securitisation
Advisory Services Pty Limited, ACN 064 133 946, a company incorporated in New
South Wales, Australia, as manager of the Trust (the "Manager"), proposes to
sell to the several Underwriters listed in Schedule I to this Agreement (the
"Underwriters"), for whom Merrill Lynch is acting as representative (the
"Representative"), US$[_] aggregate principal amount of Class A-1 Mortgage
Backed Floating Rate Notes due 2031 (the "Class A-1 Notes") issued by the
-1-
<PAGE>
Issuer Trustee. The Manager is a wholly-owned subsidiary of Commonwealth Bank of
Australia, ACN 123 123 124, a company incorporated in the Australian Capital
Territory, Australia ("CBA").
The Class A-1 Notes will be secured by the assets of the Trust in
accordance with the Security Trust Deed. The assets of the Trust means all
assets and property, real and personal, (including choses in action and other
rights), tangible and intangible, present or future, held by the Issuer Trustee
from time to time, as trustee of the Trust including, among other things: (i)
rights specified in the Security Trust Deed and the Note Trust Deed in a pool of
variable and fixed rate residential mortgage loans (the "Mortgage Loans") (such
rights, the "Mortgage Loan Rights" (as defined on the next page)) and certain
moneys received under the Mortgage Loans after [September 1], 2000 (the "Cutoff
Date"), (ii) the benefits of all covenants, agreements, undertakings,
representations, warranties and other choses in action in favor of the Issuer
Trustee under the Transaction Documents (as defined in the Series Supplement),
(iii) the Collection Account and (iv) all other assets that comprise the Charged
Property (as defined in the Security Trust Deed). The Mortgage Loans will be
sold to the Issuer Trustee by CBA (in such capacity, the "Seller") and will be
serviced for the Issuer Trustee by CBA (in such capacity, the "Servicer"). The
Class A-1 Notes will be issued in an aggregate principal amount of US$[_], which
is equal to approximately [_]% of the aggregate balance of the Mortgage Loans as
of the Cutoff Date.
The Trust was created pursuant to a master trust deed dated October 8,
1997, as amended from time to time (the "Master Trust Deed") between the Manager
and Perpetual and a series supplement to be dated [August 31], 2000 (the "Series
Supplement"), between CBA (as Seller and Servicer), the Manager and the Issuer
Trustee, which describes, among other things, the Trust and the underlying cash
flow relating to the Class A-1 Notes. The Class A-1 Notes will be issued
pursuant to a Note Trust Deed to be dated ____________, 2000 among the Issuer
Trustee, the Manager and The Bank of New York, New York branch (the "Class A-1
Note Trustee").
Concurrently with the sale of the Class A-1 Notes, the Issuer Trustee will
also issue A$[_] in aggregate principal amount of Class A-2 Notes (together with
the Class A-1 Notes, the "Class A Notes"), and A$[_] in aggregate principal
amount of Class B Notes. The Class A-2 Notes will be equal to approximately [_]%
of the aggregate principal amount of Mortgage Loans as of the Cutoff Date, and
the Class B Notes will be equal to approximately [_]% of the aggregate principal
amount of the Mortgage Loans as
-2-
<PAGE>
of the Cutoff Date. The assets of the Trust will also secure under the Security
Trust Deed, among other things, any Redraw Bonds (as defined in the Series
Supplement) that may be issued after the date of this Agreement and the Issuer
Trustee's obligations under the Liquidity Facility. The Class A-2 Notes, the
Class B Notes and the Redraw Bonds are collectively referred to as the "A$
Securities." The Class A-1 Notes and the A$ Securities are collectively referred
to as the "Notes."
The Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Class A-1 Notes. The
registration statement as amended at the time when it shall become effective,
or, if a post-effective amendment is filed with respect thereto, as amended by
such post-effective amendment at the time of its effectiveness, including in
each case information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430 or Rule 430A under the
Securities Act, is referred to in this Agreement as the "Registration
Statement", and the prospectus in the form first used to confirm sales of Class
A-1 Notes is referred to in this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean collectively: the
Master Trust Deed (in so far as it applies to the Trust), the Series Supplement,
the Notes, the Security Trust Deed, the Note Trust Deed, the Agency Agreement,
the Dealer Agreement, the Liquidity Facility Agreement, the Standby Redraw
Facility Agreement, the Currency Swap Agreement, the Interest Rate Swap
Agreement, the Mortgage Insurance Policies, any other document which is agreed
to by the Manager and the Issuer Trustee to be a Transaction Document in
relation to the Trust under clause 1.6(a)(v) of the Series Supplement, the DTC
Letter of Representations, any undertakings given to Euroclear or Clearstream
Banking, societe anonyme ("Clearstream") in connection with the Book Entry
Notes, any agreement, instrument or undertaking entered into by the Issuer
Trustee or any CBA Party in connection with the admission of the Class A-1 Notes
to the official list ("Official List") of the Financial Services Authority ("UK
Listing Authority") and the admission of the Class A-1 Notes to trading on the
London Stock Exchange Limited (the "London Stock Exchange"), and any other
contract, agreement or instrument which is specified in the draft settlement
agenda dated ___________, 2000 prepared by Clayton Utz in connection with the
issuance and sale of the Class A-1 Notes. CBA and the Manager are each a "CBA
Party" and collectively are referred to as the "CBA Parties."
-3-
<PAGE>
To the extent not defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Series Supplement.
In this Agreement, a reference to the Issuer Trustee is a reference to the
Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity and reference to the assets, business, property or undertaking of the
Issuer Trustee, unless otherwise stated, is a reference to the Issuer Trustee in
that capacity only.
Each of the CBA Parties and the Issuer Trustee hereby agrees with the
Underwriters as follows:
1. Purchase and Sale. The Issuer Trustee, at the direction of the
-----------------
Manager, agrees to sell, and the Manager agrees to direct the Issuer Trustee to
sell, the Class A-1 Notes to the several Underwriters as hereinafter provided,
and each Underwriter, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees to
purchase, severally and not jointly, from the Issuer Trustee, the respective
principal amounts of Class A-1 Notes set forth opposite such Underwriter's name
in Schedule I hereto at a price equal to 100% of their principal amount.
2. Offering. The CBA Parties and the Issuer Trustee understand that the
--------
Underwriters intend to make a public offering of their respective portions of
the Class A-1 Notes upon the terms set forth in the Prospectus as soon after (A)
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of Merrill Lynch is
advisable.
3. Delivery and Payment. Payment for the Class A-1 Notes shall be made
--------------------
by wire transfer in immediately available funds to the account specified by the
Issuer Trustee to Merrill Lynch no later than 12:00 noon, New York City time on
September [18], 2000, or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as Merrill Lynch and the Manager
may agree upon in writing. The time and date of such payment are referred to
herein as the "Closing Date". As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
New York City, Sydney and London.
Payment for the Class A-1 Notes shall be made against delivery to the
nominee of the Depository Trust Company for the account of Merrill Lynch and for
the respective accounts of the several Underwriters of three or more fully
registered global book-entry
-4-
<PAGE>
notes (the "Book-Entry Notes") representing $[_] in aggregate Principal Amount
of Class A-1 Notes, with any transfer taxes payable in connection with the
transfer to the Underwriters of the Class A-1 Notes duly paid by the Issuer
Trustee. The Book-Entry Notes will be made available for inspection by Merrill
Lynch at the offices of Mayer, Brown & Platt at 1675 Broadway, New York, New
York 10019 not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date. Interests in any Book Entry Notes will be held only
in Book Entry form through DTC, except in limited circumstances described in the
Prospectus.
4. Representations and Warranties of the Issuer Trustee and the CBA
----------------------------------------------------------------
Parties.
-------
I. The Issuer Trustee represents and warrants to each Underwriter and the
CBA Parties as of the date of this Agreement and as of the Closing Date, and
agrees with each Underwriter and the CBA Parties, that:
(a) since the respective dates as of which information is provided in
the Registration Statement and the Prospectus, there has not been any material
adverse change or any development involving a prospective material adverse
change in or affecting the general affairs, business, prospects, management, or
results of operations, condition (financial or otherwise) of Perpetual or the
Trust except as disclosed in the Prospectus which is material in the context of
performing the Issuer Trustee's obligations and duties under the Notes and each
Basic Document to which it is or is to be party;
(b) Perpetual has been duly incorporated and is validly existing as a
corporation under the laws of New South Wales, with power and authority
(corporate and other) to conduct its business as described in the Prospectus,
and to enter into and perform the Issuer Trustee's obligations under this
Agreement and the Basic Documents and Perpetual has been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents;
(c) Perpetual has duly authorized, executed and delivered this
Agreement;
-5-
<PAGE>
(d) the Notes have been duly authorized by Perpetual, and, when the
Class A-1 Notes have been issued (and duly authenticated by the Class A-1 Note
Trustee), delivered and paid for pursuant to this Agreement, they will
constitute valid and binding obligations of the Issuer Trustee entitled to the
benefits of the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable principles.
(e) the execution, delivery and performance by Perpetual of each of
the Basic Documents to which it either is, or is to be, a party and this
Agreement has been duly authorized by Perpetual and, when executed and delivered
by it and the other parties thereto, each of the Basic Documents will constitute
a legal, valid and binding obligation of the Issuer Trustee, enforceable against
it in accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of creditors rights
generally and to general equitable principles;
(f) Perpetual is not, nor with the giving of notice or lapse of time
or both will be, in violation of or in default under: (i) its constitution or
(ii) any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which either is a party or by which it or any of its properties
is bound, except in the case of (ii), for violations and defaults which
individually and in the aggregate would not have a material adverse effect on
the transactions contemplated in or in the Basic Documents; the issue and sale
of the Notes and the performance by 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 (I) conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its property or assets is subject, (II) result in
any violation of the provisions of its constitution or any applicable law or
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over it, or any of its properties; or (III) result in
the creation or imposition of any lien or encumbrance upon any of its property
pursuant to the terms of any indenture, mortgage, contract or other instrument
other than pursuant to the Basic Documents; and no consent, approval,
authorization, order, license, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of the
Notes or the consummation by the Issuer Trustee of the transactions
-6-
<PAGE>
contemplated by this Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder (the
latter, including such applicable rules and regulations, the "Trust Indenture
Act") and as may be required under state securities or "Blue Sky" Laws in
connection with the purchase and distribution of the Class A-1 Notes by the
Underwriters;
(g) other than as set forth in or contemplated by the Prospectus,
there are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or the Trust or
to which it is or may be a party or to which it is or may be the subject: (i)
asserting the invalidity of this Agreement or of any of the Basic Documents,
(ii) seeking to prevent the issuance of the Notes or the consummation of any of
the transactions contemplated by this Agreement or any of the Basic Documents by
the Issuer Trustee, (iii) that may adversely affect the US Federal or Australian
Federal or state income, excise, franchise or similar tax attributes of the
Class A-1 Notes, (iv) that could materially and adversely affect the Issuer
Trustee's performance of its obligations under, or the validity or
enforceability against the Issuer Trustee of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
any of the Class A-1 Notes; and there are no contracts or other documents to
which it is party or bound that are required to be filed as an exhibit to the
Registration Statement or laws, contracts or other documents required to be
described in the Registration Statement or the Prospectus which are not filed or
described as required;
(h) the representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects;
(i) it has not done or omitted to do anything that might reduce, limit
or otherwise adversely affect the right of the Issuer Trustee to be indemnified
from the assets of the Trust under Clause 16 of the Master Trust Deed;
(j) the Prospectus complies with the Listing Rules of the UK Listing
Authority, and any preliminary prospectus and the Prospectus (in the case of the
Prospectus), as of the date of this Agreement and in the case of any preliminary
prospectus, as of its date) (i) contains all the information required by section
146 of the Financial Services Act 1986 (the "Financial Services Act"); and (ii)
in the context of offers
-7-
<PAGE>
and sales of the Class A-1 Notes to any person (A) who is outside the "United
States" (as defined in Regulation S under the Securities Act) or (B) who is not
a "U.S. person" (as defined in Regulation S under the Securities Act), is
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
information therein, in the light of the circumstances under which it is given,
not misleading and all reasonable inquiries have been made by or on behalf of
the Issuer Trustee to ascertain the accuracy of all such information;
(k) Perpetual has not taken any corporate action and (to the best of
its knowledge and belief having made reasonable inquiry and investigation) no
other steps have been taken or legal proceedings been started or threatened
against it for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator, provisional
liquidator or similar officer of it or of any or all its assets;
(l) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Income Tax Assessment Act 1936 (the
"Australian Tax Act") in relation to interest payments under the Class A-1
Notes, no withholding or deduction for any taxes, duties, assessments or
governmental charges of whatever nature will be imposed or made for or on
account of any income, registration transfer or turnover taxes, customs or other
duties or taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or authority
therein or thereof having power to tax in such jurisdiction, in connection with
(i) the authorization, execution or delivery or any of the Basic Documents to
which it is or is to be a party or with the authorization, execution, issue,
sale or delivery of the Class A-1 Notes under this Agreement, (ii) the sale and
delivery of the Class A-1 Notes by the Underwriters contemplated in this
Agreement and the Prospectus or (iii) the execution, delivery or performance by
the Issuer Trustee of any of the Basic Documents to which it is or is to be a
party or the Class A-1 Notes; except, in the case of sub clause (iii), for any
of the Basic Documents on which nominal stamp duty is payable or any other
document executed in connection with the perfection of the Issuer's Trustee's
legal title to the Mortgage Loans on which stamp duties or registration fees may
be payable;
(m) the Class A-1 Notes and the obligations of the Issuer Trustee
under the Note Trust Deed will be secured (pursuant to the Security Trust Deed)
by a first floating charge over the assets of the Trust, subject to the Prior
Interest (as defined in the Security Trust Deed); and
-8-
<PAGE>
(n) no event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice or
direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Security Trust Deed).
II. Each CBA Party severally represents and warrants to each Underwriter
and the Issuer Trustee as of the date of this Agreement and as of the Closing
Date that:
(a) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting (x) the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the CBA Parties taken as a whole or (y) the general affairs, business,
prospects, condition (financial or otherwise) of the Trust otherwise than as set
forth or contemplated in the Prospectus;
(b) it has been duly incorporated and is validly existing as a
corporation under the laws of (in the case of CBA) the Australian Capital
Territory and (in the case of the Manager) New South Wales, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus and to enter into and perform its obligations
under this Agreement and the Basic Documents, and, in each case, has been duly
qualified or licensed for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than where
the failure to be so qualified or in good standing would not have a material
adverse effect on the transactions contemplated in this Agreement or in the
Basic Documents;
(c) this Agreement has been duly authorized, executed and delivered by
it;
(d) each of the Basic Documents to which it is or is to be a party has
been duly authorized by it and, upon effectiveness of the Registration
Statement, the Note Trust Deed will have been duly qualified under the Trust
Indenture Act and each of the Basic Documents, when executed and delivered by
each CBA Party that is a party to it and the other parties thereto, will
constitute a legal, valid and binding obligation of it,
-9-
<PAGE>
enforceable against it in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws affecting the
enforcement of creditors rights generally and to general equitable principles;
and, in the case of the Manager only, the Class A-1 Notes and the Basic
Documents each will conform to the descriptions thereof in the Prospectus;
(e) it is not, nor with the giving of notice or lapse of time or both
would it be, in violation of or in default under, its constitution or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound, except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated in this Agreement or in the Basic Documents; the issue and sale of
the Notes and the performance by it of all or any obligations it has under the
Notes, the Basic Documents and this Agreement and the consummation of the
transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets of any it is subject, (ii) result in any violation of the
provisions of the constitution of a CBA Party or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over a CBA Party, or any of its properties or (iii) result
in the creation or imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage, contract, or
other instrument other than pursuant to the Basic Documents; and no consent,
approval, authorization, order, license, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Class A-1 Notes or the consummation by it of the transactions
contemplated by this Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, the Trust Indenture Act and as may
be required under state securities or Blue Sky Laws of the United States in
connection with the purchase and distribution of the Class A-1 Notes by the
Underwriters and the registration of the Charge with the ASIC on the Closing
Date;
(f) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to its knowledge, threatened against or affecting it or its
properties, the Trust or the Trust's properties or, to which it or the Trust is
or may be a party or to which it, the Trust or any
-10-
<PAGE>
property of it or the Trust is or may be the subject, (i) asserting the
invalidity of this Agreement or of any of the Basic Documents, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Basic Documents, (iii) that may
adversely affect the U.S. federal or Australian federal or state income, excise,
franchise, stamp duty or similar tax attributes of the Class A-1 Notes, (iv)
that could materially and adversely affect its performance of its obligations
under, or the validity or enforceability of, this Agreement or any of the Basic
Documents or (v) which could individually or in the aggregate reasonably be
expected to have a material adverse effect on the interests of the holders of
the Class A-1 Notes or the marketability of the Class A-1 Notes; and there are
no statutes, regulations, contracts or other documents that are required to be
filed as an exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or described as
required;
(g) its representations and warranties contained in the Basic
Documents are true and correct in all material respects;
(h) it owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all Australian and United States
federal, state, local and other governmental authorities (including United
States regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to perform its obligations
under this Agreement and the Basic Documents, and it has not received any actual
notice of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other authorization;
and it is in compliance with all laws and regulations necessary for the
performance of its obligations under this Agreement and the Basic Documents;
(i) the Prospectus complies with the Listing Rules of the UK Listing
Authority, and any preliminary prospectus and the Prospectus (in the case of the
Prospectus), as of the date hereof and in the case of any preliminary
prospectus, as of its date) (i) contains all the information required by section
146 of the Financial Services Act; and (ii) in the context of offers and sales
of the Class A-1 Notes to any person (A) who is outside the "United States" (as
defined in Regulation S under the Securities Act) or (B) who is not a "U.S.
person" (as defined in Regulation S under the Securities Act), is accurate in
all material respects and does not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the information
therein, in the light
-11-
<PAGE>
of the circumstances under which it is given, not misleading and all reasonable
inquiries have been made to by the CBA Parties ascertain the accuracy of all
such information;
(j) it has not taken any corporate action and (to the best of its
knowledge and belief having made reasonable inquiry and investigation) no other
steps been taken or legal proceedings been started or threatened against it for
its winding-up, dissolution or reorganization or for the appointment of a
receiver, receiver and manager, administrator, provisional liquidator or similar
officer of it or of any or all of its assets (other than enforcement action
taken by CBA over its assets);
(k) no stamp or other duty is assessable or payable in, and subject
only to compliance with Section 128F of the Australian Tax Act in relation to
payments under the Class A-1 Notes, no withholding or deduction for any taxes,
duties, assessments or governmental charges of whatever nature is imposed or
made for or on account of any income, registration, transfer or turnover taxes,
customs or other duties or taxes of any kind, levied, collected, withheld or
assessed by or within, the Commonwealth of Australia or any sub-divisions of or
authority therein or thereof having power to tax in such jurisdiction, in
connection with (i) the authorization, execution or delivery of the Basic
Documents to which it is, or is to be, a party or with the authorization,
execution, issue, sale or delivery of the Class A-1 Notes and (ii) the
execution, delivery or performance by each CBA Party of the Basic Documents to
which it is or is to be a party or the Class A-1 Notes; except, in the case of
sub clause (ii), for any of the Basic Documents on which nominal stamp duty is
payable or any other document executed in connection with the perfection of the
Issuer's Trustee's legal title to the Mortgage Loans on which stamp duties or
registration fees may be payable;
(l) no event has occurred or circumstances arisen which had the Notes
already been issued, would (whether or not with the giving of notice and/or the
passage of time and/or the fulfillment of any other requirement) constitute a
Manager Default (as defined in the Master Trust Deed) or a Servicer Default (as
defined in the Series Supplement); and
(m) with respect to the A$ Securities: (A) none of the CBA Parties,
any "affiliate" (as defined in Rule 144(a)(1), each an "Affiliate") of a CBA
Party or any person acting on behalf of a CBA Party or an Affiliate of a CBA
Party has engaged or will engage in any "directed selling efforts" (within the
meaning of Regulation S), (B) each of the CBA Parties, each Affiliate of a CBA
Party and any person acting on behalf of a CBA
-12-
<PAGE>
Party or an Affiliate of a CBA Party has offered and sold, and will offer and
sell, the A$ Securities only in "offshore transactions" (within the meaning of
Regulation S) in compliance with Regulation S and (C) each of the CBA Parties,
each Affiliate of a CBA Party and any person acting on behalf of a CBA Party or
an Affiliate of a CBA Party has complied and will comply with the offering
restrictions requirement of Regulation S.
III The Manager represents and warrants to each Underwriter and the Issuer
Trustee as of the date of this Agreement and as of the Closing Date, that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to a CBA Party in writing by such Underwriter
through Merrill Lynch expressly for use therein;
(b) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Manager, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Manager shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all material respects
with the Securities Act and the Trust Indenture Act and do not and will not, as
of the applicable effective date of the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or supplement
thereto, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented, if
applicable, at the Closing Date will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties shall not
apply to (i) that part of the Registration Statement which constitutes the
Statement of
-13-
<PAGE>
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act, and (ii) statements or omissions in the Registration Statement or
the Prospectus made in reliance upon and in conformity with information relating
to any Underwriter furnished to any CBA Party in writing by such Underwriter
through Merrill Lynch expressly for use therein;
(c) Ernst & Young LLP are independent public accountants with respect
to CBA and the Manager within the meaning of the Securities Act;
(d) to the knowledge of the Manager, no event has occurred that would
entitle the Manager to direct the Issuer Trustee to retire as trustee of the
Trust under clause 19.2 of the Master Trust Deed;
(e) the Trust is not and (i) upon the issuance and sale of the Notes
as contemplated in this Agreement, (ii) the application of the net proceeds
therefrom as described in the Prospectus, (iii) the performance by the parties
to the Basic Documents of their respective obligations under the Basic
Documents, and (iv) the consummation of the transactions contemplated by the
Basic Documents, the Trust will not be required to be registered as an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended; and
(f) application has been made to the UK Listing Authority for the
Class A-1 Notes to be admitted to the Official List of the UK Listing Authority
and to the London Stock Exchange for the Class A-1 Notes to be admitted to
trading and all relevant requirements of the Listing Rules will have been
complied with.
5. Covenants and Agreements.
------------------------
I. The Issuer Trustee covenants and agrees with each of the several
Underwriters and each of the CBA Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee from the
sale of the Class A-1 Notes pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the CBA Parties promptly after it
becomes actually aware of any matter which would make any of its representations
and
-14-
<PAGE>
warranties in this Agreement untrue if given at any time prior to payment being
made to the Issuer Trustee on the Closing Date and take such steps as may be
reasonably requested by the Representative to remedy the same;
(c) to pay any stamp duty or other issue, transaction, value added,
goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, the
Agreements or in connection with the issue and distribution of the Class A-1
Notes or the enforcement or delivery of this Agreement;
(d) to use all reasonable endeavors to procure satisfaction on or
before the Closing Date of the conditions referred to in Section 6 below which
relate to the Issuer Trustee and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents not executed on the date hereof on or
before the Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and Clearstream
concerning the issue of the Class A-1 Notes and related matters;
(e) to provide reasonable assistance to the CBA Parties to procure
that the charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate registers;
(f) to perform all of its obligations under each of the Basic
Documents to which it is a party which are required to be performed prior to or
simultaneously with closing on the Closing Date;
(g) not to take, or cause to be taken, any action or knowingly permit
any action to be taken which it knows or has reason to believe would result in
the Class A-1 Notes not being assigned the ratings referred to in Section 6(q)
below;
(h) not, prior to or on the Closing Date, amend the terms of any Basic
Document nor execute any of the Basic Documents other than in the agreed form
without the consent of the Underwriters;
(i) provided the Manager complies with Section 5.II.(r), the Issuer
Trustee will:
-15-
<PAGE>
(i) sign and deliver to the UK Listing Authority a listing
application and copies of the Prospectus on or prior to the
Closing Date;
(ii) ensure that the Prospectus shall be approved as listing
particulars by or on behalf of the UK Listing Authority as
required by Section 144(2) of the Financial Services Act and the
Listing Rules; and
(iii) ensure that two copies of the Prospectus shall be delivered
to the Registrar of Companies in England and Wales for
registration as required by Section 149 of the Financial Services
Act, on or before the date of publication thereof;
(j) to procure that if, after the Prospectus has been published and
following the admission of the Class A-1 Notes to the Official List of the UK
Listing Authority and admission of the Class A-1 Notes to trading on the London
Stock Exchange:
(i) there is a significant change affecting any matter
contained in the Prospectus the inclusion of which was required
by Section 146 of the Financial Services Act or by the Listing
Rules or by the UK Listing Authority or by the London Stock
Exchange; or
(ii) a significant new matter arises the inclusion of
information in respect of which would have been so required if it
had arisen when the Prospectus was prepared,
to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and, in accordance with the Listing Rules, to submit to the UK
Listing Authority for its approval and, if approved, publish a supplement to the
Offering Circular of the change or new matter;
(k) for the purposes of section 128F(3)(c) of the Australian Tax Act,
it will, before it issues any Class A-1 Note, seek a listing of the Class A-1
Notes on the Official List of the UK Listing Authority and the admission of the
Class A-1 Notes to
-16-
<PAGE>
trading on the London Stock Exchange, and use its best efforts to maintain such
listing for as long as any of the Class A-1 Notes are outstanding; provided,
however, if such listing becomes impossible, to use their best efforts to
obtain, and will thereafter use its best efforts to maintain a quotation for, or
listing of, the Class A-1 Notes on such other exchange as is commonly used for
the quotation or listing of debt securities as they may, with the approval of
Merrill Lynch, decide; and
(l) in connection with the initial distribution of the Class A-2
Notes and the Class B Notes, it and each person acting on its behalf (other than
the CBA Parties, each Affiliate of a CBA Party and the Managers (as defined in
the Dealer Agreement)) has not and will not offer for issue, or invite
applications for the issue of, the Class A-2 Notes and the Class B Notes or
offer the Class A-2 Notes and the Class B Notes for sale or invite offers to
purchase the Class A-2 Notes and the Class B Notes to a person, where the offer
or invitation is received by that person in Australia, unless the minimum amount
payable for the Class A-2 Notes or the Class B Notes (as the case may be) (after
disregarding any amount lent by any of the CBA Parties or any associate (as
determined under sections 10 to 17 of the Corporations Law) of any CBA Party) on
acceptance of the offer by that person is at least A$500,000 or the offer or
invitation otherwise does not require disclosure to investors in accordance with
Part 6D.2 of the Corporations Law.
II. The CBA Parties severally covenant and agree with each of the several
Underwriters and the Issuer Trustee as follows:
(a) in the case of the Manager only, to use its best efforts to cause
the Registration Statement to become effective at the earliest possible time
and, if required, to file the final Prospectus with the Commission within the
time periods specified by Rule 424(b) and Rule 430A under the Securities Act,
and to furnish copies of the Prospectus to the Underwriters in New York City
prior to 10:00 a.m., New York City time, on the Business Day next succeeding the
date of this Agreement in such quantities as the Representative may reasonably
request;
(b) in the case of the Manager only, to deliver, at the expense of
the Manager, to the Representative, five signed copies of the Registration
Statement (as originally filed) and each amendment thereto, in each case
including exhibits, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto, in each
case without exhibits and, during the period mentioned in paragraph (e) below,
to each of the Underwriters as many copies of the Prospectus
-17-
<PAGE>
(including all amendments and supplements thereto and documents incorporated by
reference therein) as the Representative may reasonably request;
(c) in the case of the Manager only, before filing any amendment or
supplement to the Registration Statement or the Prospectus, whether before or
after the time the Registration Statement becomes effective, to furnish to the
Representative a copy of the proposed amendment or supplement for review and not
to file any such proposed amendment or supplement to which the Representative
reasonably objects;
(d) in the case of the Manager only, to advise the Representative
promptly, and to confirm such advice in writing, (i) when the Registration
Statement has become effective, (ii) when any amendment to the Registration
Statement has been filed or becomes effective, (iii) when any supplement to the
Prospectus or any amendment to the Prospectus has been filed and to furnish the
Representative with copies thereof, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any proceeding
for that purpose, and (vi) of the occurrence of any event, within the period
referenced in paragraph (e) below, as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading and to use its best efforts to prevent the issuance of
any such stop order, or of any order preventing or suspending the use of any
preliminary prospectus or the Prospectus, or of any order suspending and such
qualification of the Class A-1 Notes, or notification of any such order thereof
and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) to advise the Representative promptly, and to confirm such advice
in writing of the receipt by a CBA Party of any notification with respect to any
suspension of the qualification of the Class A-1 Notes for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
(f) in the case of the Manager only, if, during such period of time
after the first date of the public offering of the Class A-1 Notes as in the
opinion of counsel for the Underwriters a prospectus relating to the Class A-1
Notes is required by law to be
-18-
<PAGE>
delivered in connection with sales by an Underwriter or a dealer, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the CBA Parties, to the
Underwriters and to the dealers (whose names and addresses the Representative
will furnish to CBA) to which Class A-1 Notes may have been sold by the
Representative on behalf of the Underwriters and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law;
(g) in the case of the Manager only, to endeavor to qualify the Class
A-1 Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and to continue
such qualification in effect so long as reasonably required for distribution of
the Class A-1 Notes; provided that the Manager shall not be required to file a
--------
general consent to service of process in any jurisdiction;
(h) in the case of the Manager only, to make generally available to
the holders of the Class A-1 Notes and to the Representative as soon as
practicable an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Trust occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(i) in the case of the Manager only, so long as the Class A-1 Notes
are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual independent
certified public accountant's audit report on the financial statements furnished
to the Issuer Trustee pursuant to the Basic Documents by first class mail as
soon as practicable after such statements and reports are furnished to the
Issuer Trustee, (ii) copies of each amendment to any of the Basic Documents,
(iii) on each Determination Date or as soon thereafter as practicable, notice by
telex or facsimile to the Representative of the Pool Factor as of the related
Record Date, (iv) copies of all reports or other communications (financial or
other) furnished to holders of the Class A-1 Notes, and copies of any reports
and financial statements furnished to or
-19-
<PAGE>
filed with the Commission, any governmental or regulatory authority or any
national securities exchange, and (v) from time to time such other information
concerning the Trust or the CBA Parties as the Representative may reasonably
request;
(j) to the extent, if any, that the ratings provided with respect to
the Class A-1 Notes by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other action by a CBA Party or the Issuer
Trustee, the relevant CBA Party shall use its best efforts to furnish such
documents and take any other such action or, in the case of the Issuer Trustee,
it will use its best efforts to procure the Issuer Trustee to do so;
(k) it will on behalf of the Issuer Trustee: (i) for the purposes of
128F of the Australian Tax Act, seek a listing of the Class A-1 Notes on the
Official List of the UK Listing Authority and the admission of the Class A-1
Notes to trading on the London Stock Exchange before the Issuer Trustee issues
any Class A-1 Note, (ii) ensure that the Issuer Trustee will not offer, issue or
sell the Class A-1 Notes to the Underwriters, until the Class A-1 Notes have
been admitted to the Official List of the UK Listing Authority and to trading on
the London Stock Exchange or the Representative, on behalf of the Underwriters,
is satisfied that the Class A-1 Notes will be admitted after the Closing Date
and (iii) it will, use its best efforts to maintain such listing for as long as
any of the Class A-1 Notes are outstanding; provided, however, if such listing
becomes impossible, to use their best efforts to obtain, and will thereafter use
its best efforts to maintain a quotation for, or listing of, the Class A-1 Notes
on such other exchange as is commonly used for the quotation or listing of debt
securities as they may, with the approval of Merrill Lynch, decide;
(l) to furnish from time to time copies of the Prospectus and any and
all documents, instruments, information and undertakings (in addition to any
already published or lodged with the UK Listing Authority) and publish all
advertisements or other material and to comply with any other requirements of
the UK Listing Authority or the London Stock Exchange that may be necessary in
order to effect and maintain such listing;
(m) not to take, or cause to be taken, any action and will not
knowingly permit any action to be taken which it knows or has reason to believe
would result in the Class A-1 Notes not being assigned the rating referred to in
Section 6(q) below;
-20-
<PAGE>
(n) in the case of the Manager only, to assist Merrill Lynch in making
arrangements with DTC, Euroclear and Clearstream concerning the issue of the
Book-Entry Notes and related matters;
(o) in the case of the Manager only, if required, to register the
Class A-1 Notes pursuant to the Securities Exchange Act of 1934, as amended, as
soon as reasonably practicable as such requirement comes into effect but no
later that when such registration may become required by law;
(p) in the case of CBA only, whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
to pay, or cause to be paid, all fees costs and expenses incident to the
performance, including, without limiting the generality of the foregoing, all
fees, costs and expenses: (i) incident to the preparation, issuance, execution,
authentication and delivery of the Notes, including any fees, costs and expenses
of the Class A-1 Note Trustee or any transfer agent, (ii) incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Prospectus and any preliminary prospectus (including in each case
all exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Class A-1 Notes under the laws of such jurisdictions as the
Underwriters may designate (including fees of counsel for the Underwriters and
their disbursements with respect thereto), (iv) in connection with the listing
of the Notes on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Basic Documents, the Preliminary and Supplemental Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to Underwriters and
dealers of copies of the Registration Statement and the Prospectus, including
mailing and shipping, as provided in this Agreement, (vii) the CBA Parties'
counsel and accountants and the Underwriters' counsel fees and disbursement that
are chargeable to CBA, (viii) any expenses incurred by the CBA Parties in
connection with any "roadshow" presentation to potential investors (except for
up to A$50,000 of those expenses to be paid by Merrill Lynch if the transaction
contemplated by this Agreement is consummated) and (ix) payable to rating
agencies in connection with the rating of the Notes;
(q) to indemnify and hold harmless the Underwriters against any
documentary, stamp or similar issue tax, including any interest and penalties,
on the creation, issue and sale of the Class A-1 Notes in accordance with this
Agreement and on
-21-
<PAGE>
the execution and delivery of this Agreement and any value added tax or goods
and services tax payable in connection with any concessions, commissions and
other amounts payable or allowable by the Issuer Trustee; to make all payments
to be made by the CBA Parties or the Issuer Trustee under this Agreement without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless the relevant CBA Party is
compelled by law to deduct or withhold such taxes, duties or charges. In that
event, the relevant CBA Party shall pay such additional amounts as may be
necessary in order that the net amounts received after such withholding or
deduction shall equal the amount that would have been received if no withholding
or deduction had been made;
(r) in the case of the Manager only, to do all things necessary to
enable and cause the Issuer Trustee to:
(i) sign and deliver to the UK Listing Authority a listing
application and copies of the Prospectus on or prior to the
Closing Date;
(ii) cause the Prospectus to be approved as listing particulars
by or on behalf of the UK Listing Authority as required by
Section 144(2) of the Financial Services Act and the
Listing Rules; and
(iii) cause two copies of the Prospectus to be delivered to the
Registrar of Companies in England and Wales for
registration as required by Section 149 of the Financial
Services Act, on or before the date of publication thereof;
and
(s) if, after the Prospectus has been published and following the
admission of the Class A-1 Notes to the Official List of the UK Listing
Authority and admission of the Class A-1 Notes to trading on the London Stock
Exchange:
(i) there is a significant change affecting any matter
contained in the Prospectus the inclusion of which was
required by Section 146 of the Financial Services Act or by
the Listing
-22-
<PAGE>
Rules or by the UK Listing Authority or by the London Stock
Exchange; or
(ii) a significant new matter arises the inclusion of
information in respect of which would have been so required
if it had arisen when the Prospectus was prepared,
to notify the Representative on behalf of the Underwriters as soon as reasonably
practicable and will, in accordance with the Listing Rules, submit to the UK
Listing Authority for its approval and, if approved, publish a supplement to the
Prospectus of the change or new matter;
(t) in connection with the initial distribution of the Class A-2
Notes and the Class B Notes, it and each person acting on behalf of the CBA
Parties (other than the Co-Managers (as defined in the Dealer Agreement), each
of whom has agreed and covenanted with the Issuer Trustee and the Manager, with
appropriate changes, as follows) has not and will not offer for issue, or invite
applications for the issue of, the Class A-2 Notes and the Class B Notes or
offer the Class A-2 Notes and the Class B Notes for sale or invite offers to
purchase the Class A-2 Notes and the Class B Notes to a person, where the offer
or invitation is received by that person in Australia, unless the minimum amount
payable for the Class A-2 Notes or the Class B Notes (as the case may be) (after
disregarding any amount lent by any of the CBA Parties or any associate (as
determined under sections 10 to 17 of the Corporations Law) of any CBA Party) on
acceptance of the offer by that person is at least A$500,000 or the offer or
invitation otherwise does not require disclosure to investors in accordance with
Part 6D.2 of the Corporations Law; and
(u) to procure that the charges created by or contained in the
Security Trust Deed are registered within all applicable time limits in all
appropriate registers.
III. Selling Restrictions
(a) No prospectus in relation to the Class A-1 Notes has been lodged
with, or registered by, the Australian Securities and Investments Commission or
the Australian Stock Exchange Limited. Accordingly, each of the Underwriters,
severally and not jointly, represents and agrees that it has not and will not
offer for issue, or invite applications for the issue of, the Class A-1 Notes or
offer the Class A-1 Notes for sale or
-23-
<PAGE>
invite offers to purchase the Class A-1 Notes to a person, where the offer or
invitation is received by that person in Australia.
(b) Each Underwriter, severally and not jointly, agrees with the
Issuer Trustee that, within 30 days of the date of this Agreement, it will have
offered the Class A-1 Notes for sale, or invited or induced offers to buy the
Class A-1 Notes by:
(i) making each preliminary prospectus or the Prospectus
available for inspection on a Bloomberg source and inviting potential
investors to access the preliminary prospectus or the Prospectus
available on that Bloomberg source; or
(ii) making hard copies of each preliminary prospectus or the
Prospectus for the Class A-1 Notes available for collection from that
Underwriter in at least its principal office in New York City or
London and, in the case of purchasers in the United States, by sending
or giving copies of that preliminary prospectus or the Prospectus to
those purchasers.
(c) Each Underwriter agrees that it will not sell Class A-1 Notes to,
or invite or induce offers for the Class A-1 Notes from:
(i) any associate of the Issuer Trustee or a CBA Party
specified in Schedule II or Schedule III; or
(ii) any other associate from time to time specified in writing
to the Underwriter by the Issuer Trustee or a CBA Party.
(d) Each Underwriter, severally and not jointly, agrees to:
(i) provide written advice to the Issuer Trustee and the
Manager within 40 days of the issue of the Class A-1 Notes specifying
that it has complied with section 5(III)(b); and
(ii) cooperate with reasonable requests from the Issuer Trustee
for information for the purposes of assisting the Issuer Trustee to
-24-
<PAGE>
demonstrate that the public offer test under section 128F of the Tax
Act has been satisfied in respect of the Class A-1 Notes,
provided that no Underwriter shall be obliged to disclose:
(x) the identity of the purchaser of any Class A-1 Note or any
information from which such identity might be capable of being
ascertained; or
(y) any information the disclosure of which would be contrary to
or prohibited by any relevant law, regulation or directive.
(e) Each Underwriter, severally and not jointly, represents and
agrees that it (i) has not offered or sold, and prior to admission of the Class
A-1 Notes to listing in accordance with Part IV of the Financial Services Act
will not offer or sell any Class A-1 Notes to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their business or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulation 1995, as amended, or the Financial
Services Act, (ii) has complied with and will comply with all applicable
provisions of the Financial Services Act with respect to anything done by it in
relation to the Class A-1 Notes, in, from or otherwise involving the United
Kingdom, and (iii) has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the issue
of the Class A-1 Notes, other than any document which consists of, or any part
of, listing particulars, supplementary listing particulars or any other document
required or permitted to be published by listing rules under Part IV of the
Financial Services Act to a person who is a kind described in Article 11(3) of
the Financial Services Act (Investment Advertisements) (Exemptions) Order 1996,
as amended, or is a person to whom the document may otherwise lawfully be issued
or passed on.
(f) Each Underwriter, severally and not jointly, acknowledges that no
action has been taken to permit a public offering of the Class A-1 Notes in any
jurisdiction outside the United States where action would be required for that
purpose. Each Underwriter will comply with all applicable securities laws and
regulations in each jurisdiction in which it purchases, offer, sells or delivers
Class A-1 Notes or has in its
-25-
<PAGE>
possession or distributes the Prospectus or any other offering material in all
cases at its own expense.
IV. The Manager hereby directs the Issuer Trustee to do each of the things
(or, as the case may be, not to do the things) specified in Section 5.I. and the
Issuer Trustee acknowledges and accepts that direction.
6. Conditions to the Obligations of the Underwriters. The several
-------------------------------------------------
obligations of the Underwriters hereunder are subject to the performance by the
Issuer Trustee and the CBA Parties of their obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective, not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Representative;
(b) the representations and warranties of the Issuer Trustee and the
CBA Parties contained herein are true and correct on and as of the Closing Date
as if made on and as of the Closing Date and the representations and warranties
of the Issuer Trustee and CBA Parties in the Basic Documents will be true and
correct on the Closing Date; and the Issuer Trustee and the CBA Parties shall
have complied with all agreements and all conditions on the part of each to be
performed or satisfied hereunder and under the Basic Documents at or prior to
the Closing Date;
(c) all actions required to be taken and all filings required to be
made by the Manager or the Issuer Trustee under the Securities Act prior to the
Closing Date for the Notes shall have been duly taken or made;
(d) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date: (x) there shall not have occurred any downgrading in
any rating accorded any securities of, or guaranteed by, CBA by any "nationally
recognized statistical
-26-
<PAGE>
rating organization" (as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act) to: (i) "A2" or worse in the case of the rating
accorded by Moody's Investors Service, Inc., (ii) "A" or worse in the case of a
rating accorded by Standard & Poor's Ratings Group or (iii) the equivalent of
"A2" or "A" or worse in the case of the rating accorded by any other "nationally
recognized statistical rating organization" nor (y) shall any notice have been
given of any intended or potential downgrading as is referred to in subclause
(x) of this paragraph (d);
(e) since the date of this Agreement, there shall not have been any
material adverse change or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Issuer Trustee or any of the CBA Parties, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Class A-1 Notes on the Closing
Date on the terms and in the manner contemplated in the Prospectus;
(f) the Representative shall have received on and as of the Closing
Date a certificate of an Authorized Officer of the Issuer Trustee and each CBA
Party, with specific knowledge about the party's financial matters, satisfactory
to the Representative to the effect set forth in subsections (a) through (e) of
this Section;
(g) the Representative shall have received letters, dated the date of
delivery thereof, of (i) Ernst & Young LLP, in form and substance satisfactory
to the Representative and counsel for the Underwriters, confirming that they are
independent public accountants within the meaning of the Securities Act and the
applicable Rules and Regulations and stating in effect that they have performed
certain specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in the
Registration Statement and the Prospectus (and any amendments and supplements
thereto), agrees with the accounting records of CBA, excluding any questions of
legal interpretation, and (ii) PriceWaterhouseCoopers, in form and substance
satisfactory to the Representative and counsel for the Underwriters, stating in
effect that they have performed certain specified procedures with respect to the
Mortgage Loans;
-27-
<PAGE>
(h) Mayer Brown & Platt, United States counsel for the CBA Parties,
shall have furnished to the Representative their written opinions, dated the
Closing Date, substantially in the form of Exhibit A-1 and Exhibit A-2 and
otherwise 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;
(i) Mayer Brown & Platt, United States federal income tax counsel for
the CBA Parties shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(j) Clayton Utz, Australian counsel for the CBA Parties, shall have
furnished to the Representative their written opinion, dated the Closing Date,
substantially in the form of Exhibit B and otherwise in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(k) Clayton Utz, Australian tax counsel for the CBA Parties, shall
have furnished to the Representative their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representative, and such
Australian tax counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(l) Mallesons Stephen Jaques, Australian counsel for the Issuer
Trustee and the Security Trustee, shall have furnished to the Representative
their written opinion, dated the Closing Date, substantially in the form of
Exhibit C and otherwise in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(m) the Chief Solicitor and General Counsel of CBA shall have
furnished to the Representative their written opinion, dated the Closing Date,
substantially in the form of Exhibit D and otherwise in form and substance
satisfactory to the Representative, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
-28-
<PAGE>
(n) Counsel to the Interest Rate Swap Provider and Currency Swap
Providers shall have furnished to the Representative their written opinion dated
the Closing Date, in form and substance satisfactory to the Representative, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(o) the Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in connection
with the transaction described in this Agreement which opinion is not otherwise
described in this Agreement allowing the Representative to rely on such opinion
as if it were addressed to the Representative;
(p) the Representative shall have received copies of letters from
Moody's Investors Service, Inc. and Standard & Poor's Ratings Group and Fitch,
Inc. (the "Rating Agencies") stating that the Class A-1 Notes have been rated
AAA or its equivalent by the Rating Agencies;
(q) the Class A-1 Notes shall have been admitted to the Official List
of the UK Listing Authority and admitted to trading on the London Stock Exchange
or such other exchange as the parties shall agree upon or the Representative
shall be satisfied that such listing will be granted after the Closing Date but
in any event, prior to the first Payment Date for the Class A-1 Notes;
(r) the Representative shall have received evidence satisfactory to
it and its counsel that on or prior to the Closing Date the Class A-2 Notes and
the Class B Notes have been duly authorized, executed, authenticated, issued and
delivered pursuant to the Basic Documents; and
(s) on or prior to the Closing Date the Issuer Trustee and the CBA
Parties shall have furnished to the Representative such further certificates and
documents as the Representative shall reasonably request.
7. (a) Indemnification and Contribution. Each of the CBA Parties agrees
--------------------------------
jointly and severally to indemnify and hold harmless each Underwriter, each
affiliate of an Underwriter that assists such Underwriter in the distribution of
the Class A-1 Notes and each person, if any, that controls any Underwriter
within the meaning of either Section 15
-29-
<PAGE>
of the Securities Act or Section 20 of the Exchange Act, from and against (x)
any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the CBA Parties shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and (y) any
and all legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted caused by any untrue statement or
alleged untrue statement of material fact contained in any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated in or necessary to make the statements in
not misleading, except in (i) insofar as any such losses, claims, damages,
liabilities, legal fees and other expenses are caused by any untrue statement or
omission or alleged untrue statement or omission made (A) in reliance upon and
in conformity with information relating to any Underwriter furnished to a CBA
Party in writing by such Underwriter through Merrill Lynch expressly for use
therein or (B) in the Prepayment and Yield Information (as defined in the next
paragraph); or (ii) that such indemnity with respect to any preliminary
prospectus or the Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling any Underwriter) from whom the person asserting any
such loss, claim, damage or liability, purchased the Class A-1 Notes which are
the subject hereof, if such person did not receive a copy of the Prospectus (or
the Prospectus as amended or supplemented) at or prior to the confirmation of
the sale of such Class A-1 Notes to such person, and where such delivery is
required by the Securities Act and the alleged untrue statement contained in, or
omission of a material fact from (i) any preliminary prospectus was corrected in
the Prospectus (or the Prospectus as amended or supplemented) or (ii) the
Prospectus was corrected in the Prospectus as amended or supplemented;
For the purposes of this Agreement, the term "Prepayment and Yield
Information" means that portion of the information in any preliminary prospectus
or the Prospectus (or the Prospectus as amended or supplemented) set forth under
the sub-heading "Prepayment and Yield Considerations - Weighted Average Lives",
including the table entitled "Percent of Initial Principal Outstanding at the
Following Percentages of Constant Prepayment Rate", that is not Pool
Information; provided, however, that information set forth under that sub-
heading that is not Pool Information shall not constitute Prepayment and Yield
Information to the extent such information is inaccurate or misleading in any
material respect as a result of it being based on Pool Information that is
inaccurate or misleading in
-30-
<PAGE>
any material respect. "Pool Information" means the information furnished by
magnetic tape, diskette or any other computer readable format, or in writing to
the Underwriters by any CBA Party regarding the Mortgage Loans.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Manager, its directors, its officers who sign the
Registration Statement, the Issuer Trustee and CBA and each person that controls
a CBA Party or the Issuer Trustee within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the CBA Parties to each Underwriter, but only with
reference to (I) information relating to such Underwriter furnished to the CBA
Parties in writing by such Underwriter through Merrill Lynch expressly for use
in the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus and (II) the Prepayment and Yield
Information.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to subsection
(a) or (b) above, such person (the "Indemnified Person") shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters, each affiliate
of any Underwriter which assists such Underwriter in the
-31-
<PAGE>
distribution of the Notes and such control persons of Underwriters shall be
designated in writing by Merrill Lynch and any such separate firm for the
Manager, its directors, its officers who sign the Registration Statement, CBA
and the Issuer Trustee and such control persons of each of the Issuer Trustee
and the CBA Parties shall be designated in writing by that party. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this subsection (c), the Indemnifying
Person agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such Indemnifying Person of the aforesaid request
and (ii) such Indemnifying Person shall not have reimbursed the Indemnified
Person in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in subsection (a) or (b)
above is unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such subsection, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the CBA Parties and
the Issuer Trustee on the one hand and the Underwriters on the other hand from
the offering of the Class A-1 Notes or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the CBA Parties and the Issuer Trustee on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the CBA Parties and the Issuer Trustee on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds
-32-
<PAGE>
from the offering (before deducting expenses) received by the CBA Parties and
the Issuer Trustee and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Class A-1 Notes. The relative fault of the CBA Parties and the Issuer Trustee on
the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by a CBA Party or the Issuer Trustee or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The CBA Parties, the Issuer Trustee and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
--- ----
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in this subsection (d)
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amount of Class
A-1 Notes set forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Issuer Trustee and the
CBA Parties set forth in this Agreement shall remain operative and in full force
and effect
-33-
<PAGE>
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Issuer Trustee or a CBA Party, its officers or directors
or any other person controlling the Issuer Trustee or a CBA Party and (iii)
acceptance of and payment for any of the Class A-1 Notes.
(f) To the extent that any payment of damages by a CBA Party pursuant
to subsection (a) above is determined to be a payment of damages pursuant to
Prudential Statement C2- "Funds Management and Securitisation" such payment
shall be subject to the terms of Section 89 of that statement.
8. Termination. Notwithstanding anything herein contained, this Agreement
-----------
may be terminated in the absolute discretion of Merrill Lynch, by notice given
to the Issuer Trustee and each CBA Party, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the London Stock Exchange or the Australian Stock
Exchange, (ii) trading of any securities of or guaranteed by the Issuer Trustee
or any CBA Party shall have been suspended on any exchange or in any over-the-
counter market, (iii) a general moratorium on commercial banking activities in
New York, Sydney or London shall have been declared by either United States
Federal, New York State, Commonwealth of Australia, New South Wales State or
United Kingdom authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of Merrill Lynch, is material and adverse and
which, in the judgment of Merrill Lynch, makes it impracticable to market the
Class A-1 Notes on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness of Agreement; Default of Underwriters. This Agreement
---------------------------------------------------
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement (or, if applicable, any post-effective amendment) by the
Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Class A-1 Notes which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Class A-1 Notes
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Class A-1 Notes to be purchased on
-34-
<PAGE>
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Class A-1 Notes set forth opposite
their respective names in Schedule I bears to the aggregate principal amount of
Class A-1 Notes set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as Merrill Lynch may specify, to
purchase the Class A-1 Notes which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
--------
shall the principal amount of Class A-1 Notes that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Class A-1 Notes
without the written consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase Class A-1 Notes
which it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Class A-1 Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Class A-1
Notes to be purchased on such date, and arrangements satisfactory to Merrill
Lynch and the Manager for the purchase of such Notes are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the CBA Parties and the Issuer
Trustee. In any such case either Merrill Lynch or the Manager shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. Expenses Upon Termination. If this Agreement shall be terminated by
-------------------------
the Underwriters, or any of them, because of any failure or refusal on the part
of the Issuer Trustee or a CBA Party to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Issuer Trustee or
a CBA Party shall be unable to perform its obligations under this Agreement or
any condition of the Underwriters' obligations cannot be fulfilled, the CBA
Parties jointly and severally agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the CBA Parties, the Issuer Trustee, the Underwriters, each
affiliate of any
-35-
<PAGE>
Underwriter which assists such Underwriter in the distribution of the Class A-1
Notes, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Notes from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
12. Certain Matters Relating to the Issuer Trustee.
----------------------------------------------
(a) The Issuer Trustee enters into this Agreement only in its
capacity as Trustee of the Trust and in no other capacity. A liability incurred
by the Issuer Trustee acting in its capacity as Issuer Trustee of the Trust
arising under or in connection with this Agreement is limited to and can be
enforced against the Issuer Trustee only to the extent to which it can be
satisfied out of Assets of the Trust out of which the Issuer Trustee is actually
indemnified for the liability. This limitation of the Issuer Trustee's liability
applies despite any other provision of this Agreement (other than section 12(c))
to the contrary and extends to all liabilities and obligations of the Issuer
Trustee in any way connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement.
(b) Each Underwriter and each of the CBA Parties may not sue the
Issuer Trustee in respect of liabilities incurred by the Issuer Trustee, acting
in its capacity as Issuer Trustee of the Trust, in any capacity other than as
Issuer Trustee of the Trust including seeking the appointment of a receiver
(except in relation to the Assets of the Series Trust), or a liquidator, an
administrator or any similar person to the Issuer Trustee or prove in any
liquidation, administration or arrangements of or affecting the Issuer Trustee
(except in relation to the Assets of the Trust).
(c) The provisions of this section 12 will not apply to any
obligation or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Master Trust Deed, this Agreement or any other
Transaction Document in relation to the Trust or by operation of law there is a
reduction in the extent of the Issuer Trustee's indemnification or exoneration
out of the Assets of the Trust, as a result of the Issuer Trustee's fraud,
negligence or wilful default (as defined in the Series Supplement).
(d) It is acknowledged that the Relevant Parties (as defined in the
Series Supplement) are responsible under the Basic Documents for performing a
variety of
-36-
<PAGE>
obligations relating to the Trust. No act or omission of the Issuer Trustee
(including any related failure to satisfy its obligations and any breach of
representations and warranties under this Agreement) will be considered
fraudulent, negligent or a wilful default for the purpose of section 12(c) to
the extent to which the act or omission was caused or contributed to by any
failure by any Relevant Party (other than any person for whom the Issuer Trustee
is responsible or liable for in accordance with any Transaction Document) to
fulfil its obligations relating to the Trust or by any other act or omission of
a Relevant Party or any other such person.
13. Actions by Representative; Notices. Any action by the Underwriters
----------------------------------
hereunder may be taken by Merrill Lynch, Pierce Fenner & Smith, Incorporated on
behalf of the Underwriters, and any such action taken by Merrill Lynch, Pierce
Fenner & Smith, Incorporated shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to Merrill Lynch,
Pierce Fenner & Smith, Incorporated ________________________________________
(Facsimile No.: (_____) ___________); Attention: ___________________________.
Notices to CBA and the Manager shall be given to it at Commonwealth Bank of
Australia, 48 Martin Place, 7/th/ Floor, Sydney, NSW, 2000 (Facsimile No.:(612)
9312-0988); Attention: Leanne Leong, Group Treasury. Notices to the Issuer
Trustee shall be given to it at Perpetual Trustees Australia Limited, Level 3,
Hunter Street, Sydney, NSW, 2000 (Facsimile No.:(612) 9221-7870); Attention:
Manager, Securitisation.
14. Counterparts; Applicable Law. This Agreement may be signed in
----------------------------
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
15. Submission to Jurisdiction. Each of the CBA Parties and the Issuer
--------------------------
Trustee submits to the non-exclusive jurisdiction of any Federal or State court
in the City, County and State of New York, United States of America, in any
legal suit, action or proceeding based on or arising under this Agreement and
agrees that all claims in respect of such suit or proceeding may be determined
in any such court. Each of the CBA Parties and the Issuer Trustee waives, to the
extent permitted by law, the defense of an inconvenient forum or objections to
personal jurisdiction with respect to the maintenance of
-37-
<PAGE>
such legal suit, action or proceedings any objection to the laying of the venue
of any such suit, action or proceeding in any Federal or State court in the
City, County and State of New York, United States of America. To the extent that
each of the CBA Parties and the Issuer Trustee or any of their respective
properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to it, any right of immunity from any legal action, suit or
proceeding, from setoff or counterclaim, from the jurisdiction of any court,
from service of process, attachment upon or prior to judgment, or attachment in
aid of execution of judgment, or from execution of a judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of a
judgment, in any such jurisdiction, with respect to its obligations, liabilities
or any other matter under or arising out of or in connection with the issuance
of the Class A-1 Notes or this Agreement, each of the CBA Parties and the Issuer
Trustee hereby irrevocably and unconditionally waives and agrees not to plead or
claim any such immunity and consents to such relief and enforcement.
16. Appointments of Process Agent. (a) Each of the CBA Parties hereby
-----------------------------
designates and appoints Commonwealth Bank of Australia, 599 Lexington Avenue,
New York, NY 10022 (Attention: Ian Phillips) (the "CBA Process Agent"), as its
authorized agent, upon whom process may be served in any legal suit, action or
proceeding based on or arising under or in connection with this Agreement, it
being understood that the designation and appointment of Commonwealth Bank of
Australia, 599 Lexington Avenue, New York, NY 10022 (Attention: Ian Phillips) as
such authorized agent shall become effective immediately without any further
action on the part of the each of the CBA Parties. Such appointment shall be
irrevocable to the extent permitted by applicable law and subject to the
appointment of a successor agent in the United States on terms substantially
similar to those contained in this Section 16 and reasonably satisfactory to
Merrill Lynch. If the CBA Process Agent shall cease to act as agent for service
of process, each of the CBA Parties shall appoint, without unreasonable delay,
another such agent, and notify Merrill Lynch of such appointment. Each of the
CBA Parties represents to the Underwriters that it has notified the CBA Process
Agent of such designation and appointment and that the CBA Process Agent has
accepted the same in writing. Each of the CBA Parties hereby authorizes and
directs the CBA Process Agent to accept such service. Each of the CBA Parties
further agrees that service of process upon the CBA Process Agent and written
notice of that service to it shall be deemed in every respect effective service
of process upon it in any such legal suit, action or proceeding. Nothing in this
Section 16 shall affect the right of any Underwriter or any person controlling
any Underwriter to serve process in any other manner permitted by law.
-38-
<PAGE>
(b) The Issuer Trustee hereby designates and appoints C.T. Corporation
(the "IT Process Agent"), as its authorized agent, upon whom process may be
served in any legal suit, action or proceeding based on or arising under or in
connection with this Agreement, it being understood that the designation and
appointment of C.T. Corporation as such authorized agent shall become effective
immediately without any further action on the part of the Issuer Trustee. Such
appointment shall be irrevocable to the extent permitted by applicable law and
subject to the appointment of a successor agent in the United States on terms
substantially similar to those contained in this Section 16 and reasonably
satisfactory to Merrill Lynch. If the IT Process Agent shall cease to act as
agent for service of process, the Issuer Trustee shall appoint, without
unreasonable delay, another such agent, and notify Merrill Lynch of such
appointment. The Issuer Trustee represents to the Underwriters that it has
notified the IT Process Agent of such designation and appointment and that the
IT Process Agent has accepted the same in writing. The Issuer Trustee hereby
authorizes and directs the IT Process Agent to accept such service. The Issuer
Trustee further agrees that service of process upon the IT Process Agent and
written notice of that service to it shall be deemed in every respect effective
service of process upon it in any such legal suit, action or proceeding. Nothing
in this Section 16 shall affect the right of any Underwriter or any person
controlling any Underwriter to serve process in any other manner permitted by
law.
17. Currency Indemnity. The obligations of the parties to make payments
------------------
under this Agreement are in U.S. dollars. Such obligations shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in any currency other than U.S. dollars or any other realization in
such other currency, whether as proceeds of set-off security, guarantee,
distributions, or otherwise, except to the extent to which such tender recovery
or realization shall result in the receipt by the party which is to receive such
payment of the full amount of the U.S. dollars expressed to be payable under
this Agreement. The party liable to make such payment agrees to indemnify the
party which is to receive such payment for the amount (if any) by which the full
amount of U.S. dollars exceeds the amount actually received, and, in each case,
such obligation shall not be affected by judgment being obtained for any other
sums due under this Agreement. The parties agree that the rate of exchange which
shall be used to determine if such tender, recovery or realization shall result
in the receipt by the party which is to receive such payment of the full amount
of U.S. dollars expressed to be payable under this Agreement shall be the noon
buying rate in New York City for cable transfers in such foreign currency as
certified for customs purposes by the Federal Reserve Bank of New York of the
business day preceding
-39-
<PAGE>
that on which the judgment becomes a final judgment or, if such noon buying rate
is not available, the rate of exchange shall be the rate at which in accordance
with normal banking procedures Merrill Lynch, Pierce Fenner & Smith,
Incorporated could purchase United States dollars with such foreign currency on
the business day preceding that on which the judgment becomes a final judgment.
-40-
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return the enclosed counterparts hereof.
Very truly yours,
COMMONWEALTH BANK OF
AUSTRALIA
By:_______________________
Name:
Title:
SECURITISATION ADVISORY
SERVICES PTY LIMITED
By:_______________________
Name:
Title:
PERPETUAL TRUSTEE COMPANY
LIMITED in its capacity as Trustee of the
Trust
By:_______________________
Name:
Title:
Accepted: __________, 2000
Merrill Lynch, Pierce Fenner & Smith, Incorporated
Acting on behalf of itself and the
several Underwriters listed in
Schedule I hereto.
By:___________________________
-41-
<PAGE>
Name:
Title:
-42-
<PAGE>
SCHEDULE I
----------
PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
--------------------------
Underwriter
-----------
Merrill Lynch, Pierce Fenner & Smith, Incorporated........ US$ [.]
[Credit Suisse First Boston Corporation................... US$ [.]]
[Deutsche Bank Securities Inc............................. US$ [.]]
-------------
[Total............ US$ [.]]
-43-
<PAGE>
SCHEDULE II
-----------
List of 128F(9) Associates of the Issuer Trustee
------------------------------------------------
Perpetual Trustees Australia Ltd
Perpetual Trustee Company Ltd
Perpetual Trustees Nominees Ltd
ACT Nominees Ltd
Perpetual Custodians Ltd
Perpetual Trust Services Limited... (formerly Perpetual Trust Limited)
Hunter Nominees Pty Ltd
PT Limited
Perpetrust Nominees Pty Ltd
Perpetual Australia Property Services (NSW) Pty Ltd... (formerly Perpetual
Realty Pty Limited)
Perpetual Service Network Pty Limited
Perpetual Nominees Limited... (formerly PTA Nominees Limited)
Perpetual Investment Management Ltd... (formerly Perpetual Management Ltd)
Perpetual Trustees SA Ltd
Perpetual Australia Property Services (Canberra) Pty Limited
Perpetual Australia Property Services (QLD) Pty Limited
Perpetual Australia Property Services (SA) Pty Limited
Queensland Trustees Pty Ltd
Investor Marketplace Limited
Perpetual Fund Services Limited
Perpetual Registrars Limited
Perpetual Superannuation Limited
Perpetual Assets Pty Ltd
Perpetual Asset Management Ltd
Perpetual Trustees Victoria Ltd
Perpetual Executors Nominees Ltd
Midway Nominees Pty Ltd
Perpetual Australia Property Services (VIC) Pty Ltd... (formerly Queenstreet
Properties Pty Limited)
Corbun Nominees Pty Ltd
Perpetual Trustees Queensland Ltd
Perpetual Trustee Company (Canberra) Ltd
Charleville Leasing Ltd
Perpetual Trustees W.A. Ltd
Francine Holdings Pty Ltd
Perpetual Australia Property Services (WA) Pty Ltd... (formerly Perpetual
Property Agency Pty Limited)
Perpetual Custodians WA Pty Ltd
Terrace Guardians Ltd
Selwest Pty Ltd
WA Trustee Nominees Pty Ltd
-44-
<PAGE>
[CBA TO UPDATE
(AND TO INCLUDE COLONIAL ENTITIES)] SCHEDULE III
------------
List of 128F(9) Associates of the CBA Parties
---------------------------------------------
Commonwealth Bank of Australia (Australia only)
Commonwealth Development Bank of Australia Limited
CBA Investments Limited
Antarctic Shipping Pty Ltd
Australian Bank Limited
Balga Pty Limited
Binya Pty Limited
Brookhollow Ave Pty Limited
CBA Specialised Financing Limited
Share Investments Pty Limited
CBA EDSA IT Assets Partnership
CBA Investments (No 2) Pty Ltd
CBA Indemnity Co Pty Limited
CBA International Finance Pty Limited
Collateral Leasing Pty Limited
Chullora Equity Investments (No.2) Pty Limited
Chullora Equity Investments (No.3) Pty Limited
Commonwealth Insurance Limited
Commonwealth Investments Pty Limited
Hazelwood Investment Company Pty Limited
Commonwealth Managed Property Limited
Darontin Pty Limited
Infravest (No.1) Limited
Infravest (No.2) Limited
Micropay Pty Limited
Perpetual Stock Pty Limited
Retail Investor Pty Limited
Sparad (No.16) Pty Limited
Sparad (No.20) Pty Limited
Sparad (No.24) Pty Limited
Sparad (No.29) Pty Limited
Sparad (No.30) Pty Limited
Sparad (No.31) Pty Limited
CBFC Group
CBFC Limited
CBFC Leasing Pty Limited
Commonwealth Securities Limited Group
Commonwealth Securities Limited
Share Direct Nominees Pty Limited
Comsec Nominees Pty Limited
Fleet Care Services Pty Limited
Leaseway Australia Pty Limited
Commonwealth Custodial Services Limited
Commonwealth Insurance Holdings Limited
Commonwealth Life Limited
CLL Investments Limited
CIF (Hazelwood) Pty Limited
Commonwealth Investment Services Limited
Commonwealth Managed Investments Limited
CISL (Hazelwood) Pty Limited
Commonwealth Funds Management Limited
CFM (ADF) Limited
CFML Nominees Pty Limited
ASB Group Limited
ASB Bank Limited
ASB Finance Limited
ASB Management Services Limited
ASB Properties Limited
ASB Superannuation Nominees Limited
CBA Funding (NZ) Limited
ASB Group Limited
ASB Life Limited
Sovereign Limited
Commonwealth Bank of Australia (Offshore Branches)
CBA Asia Limited
CBA (Europe) Finance Limited
CBA (Delaware) Finance Incorporated
Brigidina Investments Limited
Senator House Investments (UK) Limited
Commonwealth Securities (Japan) Pty Limited
Central Real Estate Holdings Group
Central Real Estate Holdings Corporation
Wilshire 10880 Corporation
-45-
<PAGE>
Wilshire 10960 Corporation
CTB Australia Limited
SBV Asia Limited
PT Bank BII Commonwealth
Caspian Investment
IPAC Securities Limited
Securitisation Advisory Services Pty Limited
EXHIBIT A-1
-----------
Form of Mayer Brown & Platt Transaction Opinion
-----------------------------------------------
___________________, 2000
To: Persons listed on Annex A hereto
Series 2000-2G Medallion Trust
-------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Commonwealth Bank of Australia ("CBA")
and Securitisation Advisory Services Pty. Limited (the "Trust Manager") in
connection with the issuance by Perpetual Trustee Company Limited (the "Issuer
Trustee"), in its capacity as trustee of the Series 2000-1G Medallion Trust (the
"Trust"), of the Class A-1 Mortgage Backed Floating Rate Notes ("the "Class A-1
Notes"). The Trust will be created pursuant to the Master Trust Deed, dated
October 8, 1997 between the Issuer Trustee and the Trust Manager (the "Master
Trust Deed"), the Series Supplement, dated _____________, 2000, among the Issuer
Trustee, the Trust Manager and CBA, as seller and servicer, which sets forth the
specific provisions regarding the Trust and details the provisions of the Class
A-1 Notes (the "Series Supplement"). The Class A-1 Note Trust Deed, dated
____________, 2000, among the Issuer Trustee, the Class A-1 Note Trustee and the
Trust Manager (the "Class A-1 Note Trust Deed") provides for the issuance of the
Class A-1 Notes in accordance with the terms and conditions attached thereto.
The Class A-1 Notes will be secured by the assets of the Trust, which will
consist primarily of a pool of variable and fixed rate residential housing loans
originated by CBA (the "Housing Loans") secured by mortgaged properties located
in the Commonwealth of Australia.
This opinion is being rendered pursuant to Sections 6(i) and 6(j) of the
Underwriting Agreement (as defined herein).
-46-
<PAGE>
The Trust Manager has caused the Issuer Trustee to sell the Class A-1 Notes
to Merrill Lynch, Pierce Fenner & Smith, Incorporated as representative (the
"Representative") for themselves and the other underwriters named in the
Underwriting Agreement dated ______________, 2000, among CBA, the Trust Manager,
the Issuer Trustee and the Representative (the "Underwriting Agreement", and
together with the Master Trust Deed, the Series Supplement, the Security Trust
Deed, the Agency Agreement, the Standby Redraw Facility Agreement, the Liquidity
Facility Agreement, the Interest Rate Swap, the Currency Swap, the Class A-1
Note Trust Deed, the form of the Class A-1 Notes and the [PMI] Master Policy
collectively, the "Agreements"). Capitalized terms not defined herein have the
meanings set forth in the Agreements.
The Trust Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a registration
statement (No. __________) on Form S-11 for the registration of the Class A-1
Notes, which registration statement has become effective, and a copy of which,
as amended to the date hereof, has heretofore been delivered to the
Representatives. The Trust Manager has filed with the Commission pursuant to
Rule 424(b) promulgated under the Securities Act a prospectus dated __________,
2000 (the "Final Prospectus"), which contains the information previously omitted
from the prospectus dated _____________, 2000 (the "Preliminary Prospectus")
pursuant to Rule 430A promulgated under the Securities Act, relating to the
Class A-1 Notes and the method of distribution thereof. Such registration
statement, including exhibits thereto and any information incorporated therein
by reference, as amended at the date hereof, is hereinafter called the
"Registration Statement"; the Final Prospectus, together with any amendment
thereof or supplement thereto authorized by the Trust Manager on or prior to the
Closing Date for use in connection with the offering of the Class A-1 Notes, is
hereinafter called the "Prospectus."
In connection with rendering this opinion letter, we have examined the
Agreements and such other documents as we have deemed necessary. As to matters
of fact, we have examined and relied upon the accuracy of the representations of
parties to the Agreements contained therein and, where we have deemed
appropriate, separate additional representations or certifications of parties to
the Agreements, their respective officers and representatives or public
officials. In rendering this opinion letter, we have also assumed (i) the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of natural persons and the conformity to the
originals of all documents submitted to us as copies, (ii) the due
authorization, execution and delivery, and the necessary power with respect
thereto, and the enforceability of such documents, (iii) the conformity to the
requirements of the Agreements, of the mortgages, certificates of title and
other documents contained in the housing loan packets held by CBA on behalf of
the Issuer Trustee, (iv) the performance by all parties to the Agreements in
accordance with their covenants and agreements made therein, and (v) that there
is not any other agreement that materially supplements or otherwise modifies the
agreements expressed in the Agreements.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of New York and the federal law of the
United States, nor do we express any opinion concerning the application of the
"doing business" laws or the securities laws of any jurisdiction other than the
federal securities laws of the United States and, in each case, as in
-47-
<PAGE>
existence on the date hereof. In rendering the opinion set forth below, as to
matters governed by the laws of the Commonwealth of Australia or the laws of any
of the States or Territories thereof or other laws that may be applicable to CBA
or the Trust Manager, we have relied without independent investigation on the
opinion letter of Clayton Utz dated the date hereof, Australian counsel to CBA
and the Trust Manager and as to matters governed by the laws of the Commonwealth
of Australia or the laws of any of the States or Territories thereof or other
laws that may be applicable to the Issuer Trustee, we have relied without
independent investigation on the opinion letter of Mallesons Stephen Jaques
dated the date hereof, Australian counsel to the Issuer Trustee. A copy of each
such opinion is annexed hereto. To the extent that we have relied on the
foregoing opinion letters, the opinions set forth below are subject to the same
assumptions, qualifications, exceptions and other limitations set forth therein.
We do not express any opinion on any issue not expressly addressed below.
Based upon the foregoing, it is our opinion that:
(i) The Registration Statement has become effective under
the Securities Act, and, to the best of our knowledge,
no stop order suspending the effectiveness of the
Registration Statement has been issued or threatened
under Section 8(d) of the Securities Act.
(ii) The Registration Statement and the Prospectus, as of
their respective effective or issue date, other than
financial or statistical information contained
therein, complied as to form in all material respects
with the requirements of the Securities Act and the
applicable rules and regulations thereunder.
(iii) To the best of our knowledge, there are no material
contracts, indentures, or other documents of a
character required to be described or referred to
under either the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement other than those described or
referred to therein or filed or incorporated by
reference as exhibits thereto.
(iv) The statements in the Prospectus under the captions
"Description of the Class A-1 Notes" and "Description
of the Transaction Documents" insofar as they purport
to summarize certain terms of the Class A-1 Notes and
the applicable Agreements, constitute a fair summary
of the provisions purported to be summarized.
-48-
<PAGE>
(v) The statements contained in the Prospectus under the
headings "ERISA Considerations", "Legal Investment
Considerations" and "United States Federal Income Tax
Matters", to the extent that they constitute matters
of federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible
consequences of investment in the Class A-1 Notes, are
correct in all material respects with respect to those
consequences or matters that are discussed therein.
(vi) The Trust is not, and will not as a result of the
offer and sale of the Class A-1 Notes as contemplated
in the Underwriting Agreement or as a result of the
consummation of the transactions contemplated by the
terms of the Agreements become, required to be
registered as an "investment company", under the
Investment Company Act of 1940, as amended.
(vii) The Class A-1 Note Trust Deed has been duly qualified
under the Trust Indenture Act of 1939, as amended.
(viii) No consent, approval, authorization or order of any
federal court or governmental agency or body is
required (i) for the consummation by CBA or the Trust
Manager of the transactions contemplated by the terms
of the Agreements or (ii) for the consummation of the
transactions contemplated by the Underwriting
Agreement in connection with the issuance or sale of
the Class A-1 Notes by the Issuer Trustee, except, in
each case, (a) such as have been obtained under the
Securities Act and (b) such as may be required under
the blue sky laws of any jurisdiction in connection
with the purchase and the offer and sale of the Class
A-1 Notes by the Underwriters, as to which we express
no opinion.
(ix) To the extent that the execution and delivery of the
Underwriting Agreement are matters to be determined
under New York law, the Underwriting Agreement has
been duly and validly executed and delivered and
constitutes a legal, valid and binding obligation of
each of CBA, the Issuer Trustee and the Trust Manager.
In rendering the opinions expressed above we express
no opinion regarding any severability provision in the
-49-
<PAGE>
Underwriting Agreement or regarding the legal, valid
and binding effect or the enforceability of any
indemnification provision in the Underwriting
Agreement to the extent that any such provisions may
be deemed to cover matters under the federal
securities laws.
(x) The offer, sale and delivery of the A$ Securities to
the dealers under the Dealer Agreement and the initial
resale of the A$ Securities by the dealers under the
Dealer Agreement contemplated by the Dealer Agreement
and the offer, sale, delivery and initial resale of
any Redraw Bonds that are issued as contemplated by
the Agreements do not require registration under the
Securities Act.
The opinions rendered herein are limited in all respects to the laws and
facts existing on the date hereof. By rendering this opinion, we do not
undertake to advise you with respect to any other matter or of any change in
such laws or facts or in the interpretations of such laws which may occur after
the date hereof.
-50-
<PAGE>
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of
this opinion letter may not be furnished to any other person or entity, nor may
any portion of this opinion letter be quoted, circulated or referred to in any
other document.
Very truly yours,
MAYER, BROWN & PLATT
DC/NM
-51-
<PAGE>
Annex A
Commonwealth Bank of Australia
Securitisation Advisory Services Pty. Limited
The Directors, Perpetual Trustee Company Limited
Merrill Lynch, Pierce Fenner & Smith, Incorporated
Moody's Investors Service, Inc.
Standard & Poor's Ratings Group
Fitch, Inc.
P.T. Limited
-52-
<PAGE>
EXHIBIT A-2
-----------
Form of Mayer Brown & Platt 10b-5 Opinion
-----------------------------------------
_____________, 2000
To: Persons Listed on Annex A hereto
Series 2000-2G Medallion Trust
-------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Commonwealth Bank of Australia ("CBA")
and Securitisation Advisory Services Pty. Limited (the "Trust Manager") in
connection with the issuance by Perpetual Trustee Company Limited, in its
capacity as trustee (the "Issuer Trustee") of the Series 2000-1G Medallion Trust
(the "Trust"), of the Class A-1 Mortgage Backed Floating Rate Notes (the "Class
A-1 Notes"). The Trust will be created pursuant to the Master Trust Deed, dated
October 8, 1997 between the Issuer Trustee and the Trust Manager (the "Master
Trust Deed") and the Series Supplement, dated _____________, 2000, among the
Issuer Trustee, as trustee, the Trust Manager, as trust manager, and CBA, as
seller and servicer, which sets forth the specific provisions regarding the
Trust and details the provisions of the Class A-1 Notes (the "Series
Supplement"). The Class A-1 Note Trust Deed, dated ____________, 2000, among
the Issuer Trustee, the Class A-1 Note Trustee and the Trust Manager (the "Class
A-1 Note Trust Deed") provides for the issuance of the Class A-1 Notes in
accordance with the terms and conditions attached thereto. The Class A-1 Notes
will be secured by the assets of the Trust, which will consist primarily of a
pool of variable and fixed rate residential housing loans originated by CBA (the
"Housing Loans") secured by mortgaged properties located in the Commonwealth of
Australia.
The Trust Manager has caused the Issuer Trustee to sell the Class A-1 Notes
to Merrill Lynch, Pierce Fenner & Smith, Incorporated as representative (the
"Representative") for themselves and the other underwriters named in the
Underwriting Agreement dated ______________, 2000, among CBA, the Trust Manager,
the Issuer Trustee and the Representative (the "Underwriting Agreement", and
together with the Master Trust Deed, the Series Supplement, the Security Trust
Deed, the Agency Agreement, the Standby Redraw Facility Agreement, the Liquidity
Facility Agreement, the Interest Rate Swap, the Currency Swap, the Class A-1
Note Trust Deed, the form of the Class A-1 Notes and the [PMI] Master Policy,
collectively, the "Agreements"). Capitalized terms not defined herein have the
meanings set forth in the Agreements.
The Trust Manager has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), a registration
statement (No. __________) on Form S-11 for the registration of the Class A-1
Notes, which registration statement has become effective, and a copy of which,
as amended to the date hereof, has heretofore been delivered to the
Representative. The Trust Manager has filed with the Commission pursuant to
Rule 424(b)(4) promulgated under the Securities Act a prospectus dated
______________, 2000 (the "Final Prospectus"), which contains the information
previously omitted from the prospectus dated _____________, 2000 (the
"Preliminary Prospectus") pursuant to Rule 430A promulgated under the Securities
Act, relating to the Class A-1 Notes and the method of distribution thereof.
Such registration statement, including exhibits thereto and any information
incorporated therein by reference, as amended at the date hereof, is hereinafter
called the "Registration Statement"; the Final Prospectus, together with any
amendment thereof or supplement thereto authorized by the Trust Manager on or
prior to the Closing Date for use in connection with the offering of the Class
A-1 Notes, is hereinafter called the "Prospectus."
Because of the wholly or partially non-legal character of many
determinations involved in the preparation of the Registration Statement and the
Prospectus, we are not advising herein with respect to and do not assume any
responsibility herein for the accuracy, completeness or fairness
-53-
<PAGE>
of the statements contained in the Registration Statement or the Prospectus and
make no representation herein that we have otherwise independently verified the
accuracy, completeness or fairness of such statements. As to matters of fact, we
have examined and relied upon the accuracy of the representations of parties to
the Agreements contained therein and, where we have deemed appropriate, separate
additional representations or certifications of parties to the Agreements, their
respective officers and representatives or public officials. In particular and
without limiting the foregoing, we express no advice as to any such accounting,
financial or statistical information contained in the Registration Statement or
the Prospectus, and we have not examined any accounting, financial or
statistical records from which the information and statements included therein
were derived.
We do not act as general counsel to CBA or the Trust Manager. In our
representation of CBA and the Trust Manager in connection with the transactions
contemplated by the Agreements, however, we met in conferences and participated
in telephone conversations with representatives of parties to the Agreements,
the Underwriters and their respective counsel in addition to us. During those
conferences and telephone conversations, the contents of the Registration
Statement and the Prospectus and related matters were discussed. With respect to
the accuracy, completeness and fairness of the information relating to the
Security Trustee, the Issuer Trustee, the Class A-1 Note Trustee, the Mortgage
Insurers and Merrill Lynch, Pierce Fenner & Smith, Incorporated contained in the
Prospectus under the captions "Description of the Transaction Documents - The
Security Trust Deed - General", "The Issuer Trustee, Commonwealth Bank and the
Manager - The Issuer Trustee", "Description of the Transaction Documents - The
Class A-1 Note Trustee", "The Mortgage Insurance Policies - Description of The
Mortgage Insurers" and "Description of the Class A-1 Notes - The Currency Swap -
Merrill Lynch International (Australia) Limited" respectively, we have relied
exclusively on those conferences and telephone conversations, as well as
certificates from officers thereof and no information inconsistent therewith has
come to our attention. In addition, we have examined the Agreements and
reviewed various opinions rendered and certificates delivered in connection with
the issuance of the Class A-1 Notes. We have not otherwise undertaken any
procedures other than those specified above that were intended or likely to
elicit information concerning the accuracy, completeness or fairness of the
statements made in the Registration Statement or the Prospectus. We have
assumed that there is not and will not be any other agreement that materially
supplements or otherwise modifies the agreements expressed in the Agreements.
Based upon and subject to the foregoing, and further based upon our
understanding of applicable law and the experience we have gained in our
practice thereunder, we hereby advise you that no information has come to our
attention that causes us to believe that the Registration Statement, as of the
effective date thereof or as of the date hereof, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein not misleading or that the
Final Prospectus, as of the date thereof or as of the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
This letter is provided for the sole benefit of each addressee hereof, and
no other person or entity is entitled to rely hereon. Copies of this letter may
not be furnished to any other person or entity, nor may any portion of this
letter be quoted, circulated or referred to in any other document.
Very truly yours,
-54-
<PAGE>
Annex A
Commonwealth Bank of Australia
Securitisation Advisory Services Pty. Limited
The Directors, Perpetual Trustee Company Limited
P.T. Limited
Merrill Lynch, Pierce Fenner & Smith, Incorporated
-55-
<PAGE>
ANNEX B
OPINION OF CLAYTON UTZ
-56-
<PAGE>
ANNEX C
OPINION OF MALLESONS STEPHEN JAQUES
-57-
<PAGE>
[TO BE UPDATED]
EXHIBIT B
Form of Clayton Utz Transaction Opinion
Our Reference: 174/801/1454036
Your Reference:
Partner/Solicitor Contact:
Brian Salter 9353 4174
Draft Transaction Opinion: 20 March 2000
2000
To: The addressees specified in the Schedule
Dear Ladies and Gentlemen
SERIES 2000-2G MEDALLION TRUST: SECURITISATION
1. Our Role
We have acted as legal advisers to Commonwealth Bank of Australia (as Seller,
Servicer, arranger and in various other capacities, but not as Lead Manager),
and Securitisation Advisory Services Pty Limited, in connection with the
Transaction Documents and the proposed issue of Notes and Redraw Bonds by the
Trustee in relation to the above matter.
2. Definitions and Interpretation
2.1 Definitions
In this opinion, unless otherwise expressly stated:
"Agency Agreement" means the Agency Agreement dated 2000 between the Trustee,
the
-58-
<PAGE>
Manager, The Bank of New York, New York Branch (as Class A-1 Note Trustee,
Class A-1 Note Registrar, Agent Bank and Principal Paying Agent) and The
Bank of New York, London Branch (as Paying Agent).
"Bank" means the Commonwealth Bank of Australia, ACN 123 123 124.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed, including
the form of the Class A-1 Notes and the Terms and Conditions of the Class
A-1 Notes appearing in Schedule 1 and 2 respectively thereof, dated 2000
between the Trustee, the Class A-1 Note Trustee and the Manager.
"Class A-1 Note Trustee" means The Bank of New York, New York Branch.
"Credit Support Annex" means each of the Credit Support Annexes annexed to
the Currency Swap Agreements.
"Currency Swap Agreements" mean the two ISDA Master Agreements dated 2000
between the Trustee, MLCS, the Bank and the Manager.
"Dealer Agreement" means the Dealer Agreement dated 2000 between the
Trustee, the Bank, the Manager, Macquarie Bank Limited, ACN 008 583 542 and
Warburg Dillon Read (Australia) Pty Limited, ACN 008 582 705.
"GEMICO Master Policy" means the Lenders' Mortgage Insurance Master Policy
executed on 2000 between the Bank, the Trustee, GE Mortgage Insurance Pty
Limited, ACN 071 466 334 and GE Capital Mortgage Insurance Corporation
(Australia) Pty Limited, ACN 081 488 440.
"Interest Rate Swap Agreement" means the ISDA Master Agreement dated 2000
between the Bank, the Trustee and the Manager.
"Liquidity Facility Agreement" means the Liquidity Facility Agreement dated
2000 between the Bank, the Manager and the Trustee.
"Manager" means Securitisation Advisory Services Pty Limited, ACN 080 151
337.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee and the Manager (as amended).
"MLCS" means Merrill Lynch Capital Services, Inc.
"Relevant Company" means each of the Bank and the Manager.
"Relevant Jurisdictions" means the State of New South Wales, the Australian
Capital Territory and the federal laws of the Commonwealth of Australia
(and; in respect of paragraphs 7(b), (g), (h), (o) and (t) only, means all
States and Territories of Australia and the federal laws of the
Commonwealth of Australia).
"Security Trust Deed" means the Security Trust Deed dated 2000 between the
Security Trustee, the Trustee, the Manager and the Class A-1 Note Trustee.
"Security Trustee" means P.T. Limited, ACN 004 454 666.
-59-
<PAGE>
"Series Supplement" means the Series Supplement in relation to the Series
Trust dated 2000 between the Trustee, the Bank and the Manager.
"Series Trust" means the trust established under the Master Trust Deed and
the Series Supplement, known as the Series 2000-2G MEDALLION Trust.
"Standby Redraw Facility Agreement" means the Standby Redraw Facility
Agreement dated 2000 between the Bank, the Manager and the Trustee.
"Transaction Documents" means:
(a) the Master Trust Deed (in so far as it relates to the Series Trust);
(b) the Series Supplement;
(c) the Security Trust Deed;
(d) the Standby Redraw Facility Agreement;
(e) the Liquidity Facility Agreement;
(f) the Interest Rate Swap Agreement;
(g) the Currency Swap Agreement;
(h) the GEMICO Master Policy;
(i) the Dealer Agreement;
(j) the Agency Agreement;
(k) the Class A-1 Note Trust Deed; and
(l) the Underwriting Agreement.
"Trustee" means Perpetual Trustee Company Limited, ACN 000 001 007, in its
capacity as trustee of the Series Trust.
"Underwriting Agreement" means the Underwriting Agreement dated 2000
between the Bank, the Manager, the Trustee and J.P. Morgan Securities Inc.,
as representative of the several Underwriters listed in Schedule 1 thereto.
2.2 Master Trust Deed and Series Supplement Definitions
Words and expressions which are defined in the Master Trust Deed or the
Series Supplement have the same meanings when used in this opinion, unless
otherwise defined herein.
3. Documents Examined
We have examined and relied on:
(a) an original execution copy, a fax copy or a photocopy of each of the
Transaction Documents,
-60-
<PAGE>
and the Sale Notice, as executed;
(b) a copy of the constitution of each Relevant Company;
(c) an original execution copy, a fax copy or a photocopy of:
(i) a power of attorney dated 2000 given by the Bank appointing attorneys
for the purposes of executing and delivering the Transaction Documents to
which the Bank is a party on behalf of the Bank; and
(ii) a power of attorney dated 2000 given by the Manager appointing
attorneys for the purposes of executing and delivering the Transaction
Documents to which the Manager is a party on behalf of the Manager;
(collectively the "Powers of Attorney"); and
(iii) powers of attorney dated 2000 executed by the Bank appointing
attorneys in favour of the Trustee for the purposes of, amongst other
things, executing Mortgage Transfers and substantially in the form
contained in Schedules 2, 3 and 4 respectively of the Series Supplement
(the "Perfection of Title Powers of Attorney");
(d) a certified extract of the minutes of a meeting of the board of
directors of the Manager relating to the entering into by it of the
Transaction Documents to which it is a party;
(e) a certificate by the secretary or a director of the Manager, Leanne
Leong or Tim See, that the resolutions set out in the above minutes were
duly passed; that all provisions contained in the Corporations Law and the
constitution of the Manager relating to the declaration of directors'
interests and power of interested directors to vote were duly observed;
that such resolutions have not been amended, modified or rescinded and are
in full force and effect; that the witnesses to the signing of the common
seal of the Manager to the Power of Attorney by the Manager were directors,
or a secretary and director, of the Manager and that the Power of Attorney
has not been revoked;
(f) a certificate from the secretary of the Bank stating that: the
execution of the Power of Attorney by the Bank and the Perfection of Title
Powers of Attorney was duly authorised by the board of directors of the
Bank; that the witnesses to the fixing of the common seal of the Bank to
the Power of Attorney by the Bank and the Perfection of Title Powers of
Attorney were directors, or a director and secretary, of the Bank at the
time of execution thereof and that none of the Power of Attorney by the
Bank or the Perfection of Title Powers of Attorney have been revoked;
(g) searches of the public records of the Relevant Companies on file at
the office of the Australian Securities and Investments Commission
conducted by our agents, Galloway & Co. on ; and
(h) a fax copy or email of the legal opinions of:
(i) Mallesons Stephen Jaques dated 2000 in relation to (amongst other
things) the enforceability of the obligations of each of the Trustee and
the Security Trustee under the Transaction Documents to which it is
expressed to be a party;
(ii) Mayer Brown & Platt dated 2000 in relation to (amongst other things),
the enforceability of the obligations of each of the Manager and the Bank
under the Underwriting Agreement and the Credit Support Annexes; and
-61-
<PAGE>
(iii) senior internal counsel of MLCS dated 2000 relating to (amongst other
things) the due execution, delivery and performance by MLCS;
Except as stated herein, we have not examined any contracts or other
documents entered into by or affecting any Relevant Company or MLCS or any
corporate records of any Relevant Company or MLCS and we have not made any
other inquiries concerning any Relevant Company or MLCS. In particular, we
have not investigated whether any Relevant Company or MLCS, by reason of
the transactions contemplated by or by reason of its obligations under any
Transaction Document to which it is a party, will be in breach of its
obligations under any other contract or document. In addition, we have not
made inquiries regarding the solvency or otherwise of MLCS.
4. Relevant Jurisdictions
This opinion relates only to the laws of the Relevant Jurisdictions as in
force at the date of this opinion and references to "law", "Courts",
"jurisdiction", "Australian law", "Australian" and "Australia" and cognate
expressions should be read accordingly.
5. Assumptions
This opinion assumes:
(a) the genuineness of all signatures and the authenticity and
completeness of all documents submitted to us as originals;
(b) the conformity to originals of all documents supplied to us as
certified, photocopied, conformed or fax copies, the authenticity and
completeness of the originals of such documents, and that none of such
documents have been terminated, amended or revoked;
(c) the capacity, power and authority of each of the parties to the
Transaction Documents, other than the Relevant Companies;
(d) the due execution and delivery of the Transaction Documents by all
parties thereto, other than the Relevant Companies and the delivery of the
Transaction Documents and the Sale Notice on behalf of each Relevant
Company;
(e) (i) the Transaction Documents constitute legal, valid and binding
obligations of all parties to them (other than the Relevant Companies and
MLCS) enforceable against each such party (other than the Relevant
Companies and MLCS) in accordance with their terms; and
(ii) the consent of GE Capital Mortgage Insurance Corporation (Australia)
Pty Limited, on behalf of the Commonwealth of Australia, in the GEMICO
Master Policy is a legal, valid and binding obligation of the Commonwealth
of Australia and enforceable against it in accordance with its terms;
(f) the performance by each Relevant Company or MLCS of any obligation
under the Transactions Documents in any jurisdiction outside the Relevant
Jurisdictions will not be illegal or ineffective under the laws of that
jurisdiction and that no law of a jurisdiction, other than a Relevant
Jurisdiction, affects any of the conclusions stated below;
(g) in relation to other than paragraph 7(o) of this opinion:
(i) no Relevant Company has passed a voluntary winding-up resolution and
no petition has been presented to or order made by a Court for winding-up
any Relevant Company;
-62-
<PAGE>
(ii) no receiver or administrator has been appointed in relation to or in
connection with a Relevant Company; and
(iii) the Australian Prudential Regulation Authority ("APRA") has not
appointed a person to take control of the Bank's business or appointed an
administrator to take control of the Bank's business under section 13A(1)
of the Banking Act, 1959 (Commonwealth), and the Federal Court of Australia
has not authorised APRA to assume control of, and to carry on, the business
of the Bank under section 65(2) of the Banking Act,
(paragraphs 5(g)(i) and (ii) should not be understood to limit paragraph
7(i) of this opinion). In this regard, your attention is drawn to paragraph
7(i) of this opinion which states (in summary) that the inspection of
Galloway & Co. does not disclose any filing in respect of the matters
referred to in paragraphs 5(g)(i) and (ii);
(h) in relation to paragraph 7(o) of this opinion and the transactions
(as defined in the Corporations Law) under which the Mortgage Loan Rights
are assigned in equity to the Trustee:
(i) the Bank and the Trustee are not insolvent (as defined in the
Corporations Law) at a time when such a transaction is entered into or an
act is done, or an omission is made, for the purpose of giving effect to
such a transaction;
(ii) neither the Bank nor the Trustee becomes insolvent because of, or
because of matters including, the entering into of such a transaction or a
person doing an act, or making an omission, for the purpose of giving
effect to the transaction;
(iii) the assumptions in paragraph 5(g) are correct in relation to the Bank
up to and including the acceptance by the Trustee of the offer contained in
the Sale Notice and the assumptions in paragraphs 5(g)(i) and (ii) can also
be made in relation to the Trustee up to and including that point in time;
and
(iv) no security interest or other third party interest exists over or in
respect of the Mortgage Loan Rights,
(paragraph 5(h)(i) and (iv) should not be understood to limit paragraph
7(i) of this opinion);
(i) the inspection by Galloway & Co. of the public records of the
Relevant Companies on file at the office of the Australian Securities and
Investments Commission has been properly carried out. In this regard,
Galloway & Co are our regular search agents, and we believe them to be
competent to undertake this task;
(j) the assumptions set out in section 129 of the Corporations Law are
correct in so far as they affect this opinion, including that:
(i) at all relevant times, each Relevant Company's constitution has
been complied with;
(ii) a person who appears from information provided by each Relevant
Company that is available to the public from the Australian Securities and
Investments Commission to be a director or secretary of a Relevant Company
has been duly appointed and has authority to exercise the powers and
perform the duties customarily exercised or performed by a director or
secretary of a similar company;
(iii) a document, has been duly executed by a Relevant Company if:
A. the document appears to have been signed by either 2 directors of
the Relevant Company or a director and a secretary of the Relevant Company;
or
B. the seal of the Relevant Company appears to have been fixed to
that document and the fixing of the seal appears to have been witnessed by
either 2 directors of the Relevant Company or a director and a secretary of
the Relevant Company; and
(iv) the officers and agents of the Relevant Company properly perform
their duties to the
-63-
<PAGE>
Relevant Company.
In this regard, we confirm that each Power of Attorney and each Perfection
of Title Power of Attorney executed by a Relevant Company appears to have
had the seal of the Relevant Company fixed to it, and the fixing of the
seal appears to have been witnessed by 2 persons who appear from the
searches referred to in paragraph 3(g) to be directors or a director and a
secretary of the Relevant Company. These matters are also confirmed in the
certificates referred to in paragraphs 3(e) & (f) above.
There is nothing in the documents referred to in paragraphs 3(d), (e) or
(f) above that would lead us to believe that any of the assumptions in this
paragraph 5(j) are incorrect. In any event, you are entitled to make the
assumptions in section 129 of the Corporations Law in relation to dealings
with a Relevant Company unless, at the time of the dealing, you knew or
suspected that the assumption was incorrect.
(k) no Relevant Company, nor any other party to any of the Transaction
Documents, has repudiated or terminated its obligations under any
Transaction Document or accepted the repudiation or termination by any
other party of that party's obligations under any Transaction Document, or
purported to do any of the above;
(l) there has been no written, oral or other arrangement, agreement or
understanding under which the terms of any of the obligations under the
Transaction Documents are in whole or part varied or waived, whether
conditionally or unconditionally;
(m) there has been no express or implied agreement by any person that
would vary the priority rules applying on enforcement of, or the
distribution of proceeds under, the Security Trust Deed that would
otherwise be applicable in the absence of any such agreement;
(n) for the purposes of paragraphs 7(j) to (w) inclusive (other than
paragraphs 7(o), (s) and (v)), the representations and warranties as to
matters of fact contained in the Transaction Documents are true and
correct;
(o) all Transaction Documents and transactions and dispositions
contemplated by them which are liable for duty will be duly stamped in all
applicable States and Territories of Australia (in this regard, please
refer to our separate opinion on the stamp duty aspects of, amongst other
things, the Transaction Documents);
(p) the Powers of Attorney will be registered in New South Wales. In this
regard we confirm that we will attend to registration of the Powers of
Attorney in New South Wales in due course;
(q) each certificate on which we have expressed reliance is and remains
true and correct;
(r) the opinions of Mayer, Brown & Platt, Mallesons Stephen Jaques and
the senior internal counsel of MLCS referred to in paragraph 3(h) are
correct, without reference to the assumptions and qualifications contained
therein;
(s) each Transaction Document represents the intention of the parties to
it and that the parties have not in fact made some other different and
separate contract between them and agreed that the relevant Transaction
Document should not give rise to legally enforceable rights or liabilities;
(t) for the purposes of paragraph 7(o) of this opinion, each Mortgage
Loan referred to in the
-64-
<PAGE>
Schedule to the Sale Notice is insured under a Mortgage Insurance Policy.
We have been instructed by the Manager that this is the case; and
(u) each person who has signed a Transaction Document as an attorney of a
Relevant Company is in fact a person named or referred to in the Power of
Attorney for that Relevant Company.
Except as expressly stated in this opinion, we have not taken any action to
verify these assumptions. However, the signatory of this letter and those
having carriage of this matter (the "persons acting") believe the
assumptions, and the opinions stated in this letter insofar as they relate
to the Relevant Companies, to be correct at the time as of which they are
given, having regard to the facts and circumstances of which the persons
acting had actual knowledge as at that time including, without limitation,
any facts appearing on the face of the document referred to in the
assumptions (as opposed to facts and circumstances which the persons acting
could have found out about had they made enquiry).
6. Qualifications
This opinion is subject to the following qualifications:
(a) (except in the case of the opinions expressed in paragraphs 7(k),
(l), (m), (n), (o), (q), (r), (s), (w) and (x)) the application of the laws
relating to insolvency, bankruptcy, receivership, reorganisation,
moratoria, court schemes and similar laws affecting creditors' rights
generally (including, in the case of the Bank, those provisions of the
Banking Act, 1959 (Commonwealth) relating to taking control of a bank's
business; the statutory administration of a bank and section 13A(3) of the
Banking Act). Without limiting the qualification expressed in the previous
sentence:
(i) the floating charge granted under the Security Trust Deed may be void
against a liquidator of the Trustee except in so far as it secures amounts
described in section 588FJ(2) of the Corporations Law (which amounts would
include the amount of any obligation undertaken after the execution of the
charge on behalf of, or for the benefit of, the Trustee) or in the
circumstances referred to in section 588FJ(3) of the Corporations Law, that
is, if the Trustee is shown to be solvent immediately after the Security
Trust Deed was executed. The benefit of section 588FJ(2) does not apply in
the circumstances referred to in sections 588FJ(4) and (5) of the
Corporations Law. The floating charge will also not be void under section
588FJ if it was created more than 6 months before the Relation Back Day (as
defined in the Corporations Law);
(ii) if a transaction contemplated by the Transaction Documents is an
unfair preference, uncommercial transaction or unfair loan within the
meaning of Part 5.7B Division 2 of the Corporations Law, then the
transaction may be voidable; and
(iii) a creditor's rights may be affected by a specific Court order
obtained under laws (including section 444F or Part 5.3A Division 13 of the
Corporations Law);
(b) a reference to the enforceability of an obligation is not to be taken
as indicating enforceability of it by way of specific performance,
injunctive relief or any other specified remedy; enforcement of the
obligations of each Relevant Company and MLCS under the Transaction
Documents and the obligations of the Trustee in respect of the Notes and
Redraw Bonds may be limited by the general principles of equity which
provide, in particular, that equitable remedies are discretionary, subject
to equitable defences and are not available where damages are considered to
be an adequate remedy;
(c) claims may become barred under statutes imposing limited periods
within which suits, actions or proceedings can be brought or may be or
become subject to defences of set-off, abatement or counterclaim;
-65-
<PAGE>
(d) enforcement of the obligations of each Relevant Company and MLCS
under the Transaction Documents and the obligations of the Trustee in
respect of the Notes and the Redraw Bonds is subject to:
(i) the general common law doctrines of:
A. estoppel in relation to representations, acts or omissions of
the other parties thereto;
B. frustration;
(ii) the provisions of the Trade Practices Act 1974 (Commonwealth), the
Australian Securities and Investments Commission Act 1989 (Commonwealth),
the Fair Trading Act 1987 (NSW) and the Fair Trading Act 1992 (ACT)
(particularly with respect to misleading or deceptive conduct and/or
unconscionable conduct); and
(iii) the provisions of the Corporations Law with respect to misleading or
deceptive conduct,
which may preclude, limit or affect the ability to enforce against that
Relevant Company or MLCS its obligations under the Transaction Documents
and against the Trustee its obligations in respect of the Notes or Redraw
Bonds;
(e) any provision in the Transaction Documents providing that any entry,
calculation or certification is to be conclusive and binding will not be
effective if such entry, calculation or certification is fraudulent and
will not necessarily prevent judicial inquiry into the merits of any claim
by any party to it;
(f) a Court may not give full force to the provisions of the Transaction
Documents relating to the severability of any invalid provision;
(g) a Court will not enforce a provision of a Transaction Document which
is in the nature of a penalty;
(h) enforcement proceedings are subject to the general jurisdiction of
the Court to award costs, even as against a successful party;
(i) the records of each Relevant Company held at the offices of the
Australian Securities and Investments Commission and available for search
are not necessarily complete or up-to-date;
(j) a Court in the Relevant Jurisdiction may stay any proceedings
commenced in that jurisdiction against any Relevant Company or MLCS under
the Transaction Documents if there are other proceedings in respect of the
Transaction Documents in other jurisdictions simultaneously on foot against
that Relevant Company or MLCS;
(k) where any party to the Transaction Documents is vested with a
discretion or may determine a matter in its opinion, the law of the
Relevant Jurisdiction may require that such discretion be exercised
reasonably and that such opinion be based on reasonable grounds;
(l) we express no opinion on the enforceability of any obligations to
negotiate in good faith or similar;
(m) an indemnity for legal costs or against liability for breach of any
law may be unenforceable;
(n) where any party to a Transaction Document is required to make any
payments on demand, a
-66-
<PAGE>
Court may require that that party be given a reasonable time after demand
is made on that party to comply with the demand before the creditor will be
permitted to realise or enforce any security for a failure to satisfy the
demand;
(o) we express no opinion on any provision in any of the Transaction
Documents requiring written amendments and waivers of the Transaction
Documents in so far as they suggest that oral or other modifications,
amendments or waivers could not be effectively agreed upon or granted
between or by the parties or by a duly authorised agent;
(p) the provisions of Part 5.7B of the Corporations Law relating to
unfair loans have not, so far as we are aware, been the subject of any
decided case law. The opinion expressed in paragraph 7(q) is therefore
based upon our interpretation of the relevant provisions of the
Corporations Law, and not upon any case law or other authority;
(q) the enforceability of the Security Trust Deed is subject to:
(i) the right of a chargor or mortgagor to redeem the property the
subject of its charge or mortgage by tender of payment in full of the
moneys secured at any time prior to the sale of the charged or mortgaged
property;
(ii) the obligation of a chargee or mortgagee to exercise its power of
sale in good faith and in a manner which is not reckless, harsh or
unconscionable and to take reasonable care to obtain on such a sale a
proper price or true market value for the property the subject of the sale;
and
(iii) the obligations of a chargee or mortgagee in possession of charged
or mortgaged property to account to the chargor or mortgagor;
(r) our opinion as to the charge in the Security Trust Deed being a
first ranking security is subject to the possibility of charges by virtue
of statute or by law ranking ahead of the charge in the Security Trust
Deed. In particular, certain other claims may have or obtain priority over
the charge in the Security Trust Deed including:
(i) by virtue of statute (eg. certain rates and taxes);
(ii) by reason of the fact that the priority accorded by virtue of
registration under the Corporations Law does not extend to encumbrances
which are not so registrable (eg. encumbrances over land or choses in
action other than books debts and certain encumbrances under which the
holder has possession of the property subject to encumbrances or of indicia
of title to that property); and
(iii) by virtue of certain exceptions provided by the Corporations Law to
the principle that registrable charges take priority according to the order
in which they are registered and of certain provisions of the Corporations
Law which give priority over a floating charge to certain claims of
employees and others when a receiver is appointed over property of the
chargor or the chargor is wound up;
(s) the Security Trust Deed is limited security and will not be
available for enforcement in respect of amounts outstanding over
A$20,000,000,000;
(t) under temporary Australian foreign exchange controls, payments by an
Australian resident to, or on behalf of:
(i) the Government of Iraq or its agencies or nationals;
(ii) the authorities of the Federal Republic of Yugoslavia (Serbia and
Montenegro);
(iii) the Government of Libya or any public authority or controlled
entity of the Government of Libya;
-67-
<PAGE>
(iv) the Taliban (also called the Islamic Emirate of Afghanistan) or any
undertaking owned or controlled, directly or indirectly, by the Taliban; or
(v) the National Union for the Total Independence of Angola ("UNITA") or
senior officials, or adult members of the immediate families of senior
officials, of UNITA,
may only be made with Reserve Bank of Australia approval. Such restrictions
may change in the future [. Relevant restrictions will be checked by CU
immediately prior to the issue of the relevant opinion and if necessary
amended]; and
(u) if an action were brought in an Australian Court (other than a New
South Wales Court) under the Transaction Documents, then under traditional
practice a judgment could not be obtained in a currency other than
Australian dollars (although recent decisions of the English and New South
Wales Courts to the contrary might be followed).
7. Opinion
Subject to the assumptions and qualifications set out above and to matters
of fact not disclosed to us, and based upon the documents which we have
examined, we are of the opinion that:
(a) each Relevant Company is a corporation duly incorporated and
existing in the Australian Capital Territory, with power to enter into and
deliver the Transaction Documents, the Sale Notice and the Powers of
Attorney to which it is a party and to exercise its rights and perform its
obligations thereunder and all corporate and other action required to
authorise the execution and delivery of the Transaction Documents, the Sale
Notice and the Powers of Attorney to which it is a party by that Relevant
Company and the performance by that Relevant Company of its obligations
under the Transaction Documents and the Notes to which it is a party has
been duly taken;
(b) the Transaction Documents and the Sale Notice have been duly
executed and delivered by each Relevant Company that is a party thereto and
the obligations expressed to be assumed by:
(i) each Relevant Company under the Underwriting Agreement are legal,
valid and binding obligations (their enforceability being a matter of New
York law);
(ii) each Relevant Company and MLCS under each Currency Swap Agreement
(excluding each relevant Credit Support Annex) are legal, valid and binding
obligations, enforceable in accordance with their terms in the Relevant
Jurisdictions;
(iii) each Relevant Company under each Credit Support Annex are legal,
valid and binding obligations (their enforceability being a matter of New
York law); and
(iv) each Relevant Company under the balance of the Transaction Documents
to which it is a party are legal, valid and binding obligations,
enforceable in accordance with their terms in the Relevant Jurisdictions;
(c) each Relevant Company is capable of suing and being sued in its
corporate name;
(d) in any proceedings taken in the Relevant Jurisdictions in relation
to the Transaction Documents or the Notes, each Relevant Company will not
be entitled to claim for itself or any of its assets immunity from suit,
execution, attachment or other legal process;
(e) in any proceedings taken in the Relevant Jurisdictions in relation
to the Transaction Documents or the Notes, the choice of the governing law
of the Transaction Documents or the Notes will be recognised provided that
such choice was made on a bona fide basis and without the primary purpose
of avoiding the laws of another jurisdiction. We are not aware of any
factual
-68-
<PAGE>
circumstances which suggest to us that the choice will not be recognised;
(f) any final and conclusive judgment obtained against a Relevant
Company in the Relevant Jurisdictions will be recognised and enforced;
(g) all acts, conditions, approvals, authorisations, filings and things
required to be done, fulfilled and performed in order to:
(i) enable each Relevant Company lawfully to enter into, exercise its
rights under and perform and comply with the obligations expressed to be
assumed by it in the Transaction Documents and, in the case of the Bank,
the Sale Notice;
(ii) ensure that the obligations expressed to be assumed by each Relevant
Company therein are legal, valid and enforceable: and
(iii) make the Transaction Documents and the Sale Notice admissible in
evidence in the Courts of the Relevant Jurisdictions,
have been done, fulfilled and performed and are in full force and effect.
No authorisation under the laws of the Relevant Jurisdictions is required
for the use or distribution of the final prospectus relating to the Class
A-1 Notes in the United States of America and the United Kingdom;
(h) the execution, delivery, incurring of the obligations to perform,
and (so far as we are aware) performance of the Transaction Documents by
each Relevant Company and, in the case of the Bank, the Sale Notice will
not conflict with its constitution nor with any law of the Relevant
Jurisdictions applicable to each Relevant Company;
(i) the inspection referred to in paragraphs 3(g) and 5(i) as disclosed
to us in the search report prepared by Galloway & Co does not disclose any
filing in respect of the passing of a voluntary winding up resolution, the
presentation of a petition or the making of an order for the winding up of
any Relevant Company or the appointment of a receiver or administrator in
relation to or in connection with any Relevant Company or any security
interest granted by the Bank in respect of the Mortgage Loan Rights;
(j) the charge created by the Security Trust Deed must be registered
under section 263 of the Corporations Law within 45 days after the date of
its creation. We confirm that we have attended to registration of the
charge created by the Security Trust Deed. Upon registration, the charge
will be a first ranking charge over the Assets of the Series Trust (subject
to the Trustee's Prior Interest (as that term is defined in the Security
Trust Deed) and the provisions of sections 279-282 of the Corporations
Law). On enforcement of the charge the Security Trustee's rights in
relation to the Assets of the Series Trust will be no greater than the
rights of the Trustee in respect of such assets prior to enforcement and
therefore the Security Trustee's interest in the Assets of the Series Trust
as chargee remains subject to the rights of any other party who has an
interest therein to which the Trustee's interest is subject;
(k) the order of application of payments set out in clause 13.1 of the
Security Trust Deed is valid, binding and enforceable against the Security
Trustee, the Trustee, the Residual Unitholder and the Secured Creditors (as
defined in the Security Trust Deed) (subject to the laws relating to
insolvency referred to in paragraphs 7(w) and (x) of this opinion);
(l) in the event of the insolvency of the Trustee or the Security
Trustee, none of:
(i) the creation by the Trustee of the charge created under the Security
Trust Deed; nor
(ii) the making of payments by the Trustee or the Security Trustee to
Noteholders and Redraw
-69-
<PAGE>
Bondholders under and in accordance with the Transaction Documents, or
Notes or the Redraw Bonds; nor
(iii) the assignment of the Mortgage Loan Rights by the Seller to the
Trustee in accordance with and as contemplated by clause 4 of the Series
Supplement,
is or will be an unfair preference, within the meaning of section 588FA(1)
of the Corporations Law;
(m) in the winding up of the Trustee, the assets subject to the charge
created by the Security Trust Deed, and all money received by the Security
Trustee or any receiver in exercise of any power, right or remedy under the
Security Trust Deed, will be required to be applied in or towards
satisfaction of amounts owing by the Trustee to the Secured Creditors (as
defined in and in the order specified in the Security Trust Deed) in
priority to the claims of unsecured creditors of the Trustee (except to the
extent that those unsecured creditors have the benefit of the Trustee's
Prior Interest (as that term is defined in the Security Trust Deed));
(n) (i) if either the Trustee or the Security Trustee is wound up, the
assets held by it as trustee of the Series Trust or as Security Trustee (as
the case may be) will not be available to its creditors, other than
creditors to whom debts were incurred by the Trustee or the Security
Trustee (as the case may be) acting in its capacity as such, and in
accordance with the provisions of the Master Trust Deed, the Series
Supplement or the Security Trust Deed (as the case may be); and
(ii) if the trustee of the trust's referred to in paragraph
13(m)(vii)(A)(2) of the Credit Support Annex to each of the Currency Swap
Agreements is wound up the assets held by it as such trustee will not be
available to its creditors other than as creditors to whom debts were
incurred by it acting in such capacity and in accordance with the
provisions of the relevant Credit Support Annex;
(o) upon acceptance by the Trustee in accordance with the Series
Supplement of the offer contained in a Sale Notice:
(i) the Mortgage Loan Rights will be validly assigned in equity to the
Trustee; and
(ii) upon such assignment taking effect the Mortgage Loan Rights will not
be considered to be the assets of the Bank upon the winding-up of the Bank
(except to the extent that the Mortgage Loan Rights become assets of the
CBA Trust);
(p) the Notes and Redraw Bonds will, if issued in accordance with the
Transaction Documents and subject to the restrictions set out in the
Transaction Documents, be validly issued by the Trustee and will constitute
binding debt obligations of the Trustee enforceable in accordance with
their terms, subject to the limitations on the liability of the Trustee set
out in the Transaction Documents;
(q) the issue of the Notes and the issue of Redraw Bonds do not, in our
opinion, constitute an unfair loan within the meaning of section 588FD(1)
of the Corporations Law. We say this because:
(i) a loan will only be unfair if either the interest or charges payable
in respect of the loan are extortionate, or become extortionate as a result
of a variation;
(ii) there are no charges levied on the Trustee in respect of the Notes
or the Redraw Bonds;
(iii) interest on the Notes and the Redraw Bonds is calculated at a rate
which will be calculated by reference to a formula based on either USD-
LIBOR-BBA (in the case of the Class A-1 Notes) or BBSW (in the case of the
Class A-2 Notes, the Class B Notes and the Redraw Bonds) plus the margin
applicable to those Notes or Redraw Bonds. The margins will be agreed prior
to issue on
-70-
<PAGE>
the basis (we understand) of offers made by institutional investors in, in
the case of the Class A-1 Notes, the US capital market and the Euromarket
or, in the case of the Class A-2, the Class B Notes and the Redraw Bonds,
in the Australian domestic market. USD-LIBOR-BBA and BBSW are market rates,
calculated on the basis of rates displayed on the Telerate, in the case of
USD-LIBOR-BBA, or, in the case of BBSW, the Reuters systems and represent
rates offered by financial institutions active in the relevant money
markets;
(iv) both elements of the interest rates payable in respect of the Notes
and the Redraw Bonds are therefore calculated on the basis of rates
determined by reference to rates generally applicable or obtainable from
time to time in the relevant money market; and
(v) whilst we are not aware of any case law on the meaning of
"extortionate", in our opinion, a rate of interest determined in this way
would not be regarded as extortionate;
(r) a transaction may be set aside under Part 5.7B of the Corporations
Law if it is an uncommercial transaction within the meaning of section
588FB(1) of the Corporations Law and is also an insolvent transaction.
Whether a transaction is an "uncommercial transaction" in this sense is a
question of fact (not a question of law) to be determined by a court in the
circumstances of each case, having regard to all relevant matters
(including those specified in section 588FB(1)(a-d)). The nature of the
transactions contemplated by, or effected or to be effected under, the
Transaction Documents is not by itself (and having regard only to the terms
of the Transaction Documents), in our opinion, such as to put the Trustee,
the Security Trustee, the Class A-1 Note Trustee, the Noteholders or the
Redraw Bondholders on notice that any such transactions might be
uncommercial transactions. If, however, any such transaction were held to
be an uncommercial transaction, then that transaction would only be liable
to be set aside under Part 5.7B of the Corporations Law if the transaction
were also an insolvent transaction within the meaning of section 588FC of
the Corporations Law, and either:
(i) as against a person who is not a party to the transaction, that
person is not able to prove the matters specified in section 588FG(1); or
(ii) as against a person who is a party to the transaction, that person
is not able to prove the matters specified in section 588FG(2).
The matters to be proved under sections 588FG(1) and (2) are matters of
fact (not law) which include the state of mind of the person concerned.
That state of mind may obviously differ from person to person;
(s) the Perfection of Title Powers of Attorney have been granted by the
Bank in accordance with its constitution and will not be revoked by the
winding-up of the Bank;
(t) upon registration (where necessary) of the Perfection of Title
Powers of Attorney in each Australian jurisdiction, the Perfection of Title
Powers of Attorney will enable the Trustee, upon the occurrence of a
Perfection of Title Event, to transfer the Mortgages forming part of the
Assets of the Series Trust into its own name and to lodge the Mortgage
Transfers in respect of those Mortgages for registration with the land
titles office of the appropriate Australian jurisdiction (subject to
stamping with nominal duty in the relevant jurisdiction). Apart from
notifying the relevant Mortgagors, the Trustee will not be required to take
any further action in order to perfect its legal title to the Mortgages
forming part of the Assets of the Series Trust once those Mortgage
Transfers have been registered in its own name. We confirm that we have
been instructed to register the Perfection of Title Powers of Attorney in
all Australian States and Territories, which we understand to be the places
in which the Assets of the Series Trust are located;
(u) the Security Trust Deed creates a floating charge over the Charged
Property (as defined in
-71-
<PAGE>
the Security Trust Deed);
(v) a notice specifying an amount determined by the Manager to be the facility
limit for the purposes of the Liquidity Facility and delivered to the Trustee
and the Liquidity Facility Provider in accordance with clause 17 of the
Liquidity Facility Agreement no later than 3 Business Days before the Issue Date
will, subject to the terms of the Liquidity Facility, set the facility limit
for, and be binding on each of the parties to, the Liquidity Facility;
(w) there are no provisions of the Corporations Law under which payments made
by the Trustee or the Security Trustee to the Noteholders or the Redraw
Bondholders under and in accordance with the Transaction Documents, the Notes
or the Redraw Bonds or the creation of the charge under the Security Trust
Deed may be set aside, other than the provisions of sections 266, 267, 437D,
468 and 588FA-FE of the Corporations Law;
(x) section 568 of the Corporations Law entitles a liquidator of a company on
the company's behalf to disclaim property of the company that, amongst other
things, consists of:
(i) property that is unsaleable or not readily saleable;
(ii) property that may give rise to a liability to pay money or some other
onerous obligation;
(iii) property where it is reasonable to expect that the costs, charges
and expenses that would be incurred in realising the property would
exceed the proceeds of realising the property; or
(iv) a contract (which cannot be disclaimed without the leave of the court
unless it is an unprofitable contract or a lease of land,and in such
case the court may make such orders as it considers just and
equitable).
It is unclear whether the Mortgage Loan Rights acquired by the Trustee
constitute property of the Trustee for the purposes of section 568. Generally
speaking, trust assets are not taken into account in the winding up of an
insolvent company and are not available for distribution amongst the company's
personal creditors. However, despite this principle, in furtherance of the goal
of section 568 to permit the prompt winding up of a company, it is possible that
a court could conclude that the section empowers a liquidator to disclaim trust
assets.
Although this is a factual matter, we believe that it is unlikely that a
liquidator would wish to disclaim the Mortgage Loan Rights. If, though, the
liquidator sought to do this, section 568D(1) provides that disclaimer does not
affect any other person's rights or liabilities except so far as it is necessary
in order to release the company from liability. It is unlikely therefore that a
disclaimer of any Mortgage Loan Rights by the liquidator of the Trustee would
free those Mortgage Loan Rights from the terms of the Series Trust or release
them as security for the Noteholders under the Security Trust Deed.
We also think it is unlikely that the issue of disclaimer would arise in
practice. If the Trustee becomes insolvent, the Master Trust Deed provides for
the Trustee to be replaced and, in the interim, for the Manager to act as
trustee. Commercial and judicial practice also suggests that if the Trustee
becomes insolvent, a court will readily order the vesting of the trust assets
and liabilities in a replacement trustee;
(y) in any proceedings taken in the Relevant Jurisdictions in relation to the
Transaction Documents, the choice of the governing law thereof and the
submission to the jurisdiction of the Courts specified in each Transaction
Document, will be recognised provided that such choice or submission was made on
a bona fide basis and without the primary purpose of avoiding the laws of
another jurisdiction. We are not aware that such a submission was made on any
basis other than such bona fide basis and without such a primary purpose;
-72-
<PAGE>
(z) any final and conclusive judgment obtained against a Relevant Company under
the Transaction Documents in the Relevant Jurisdictions (whether in Australian
dollars or, subject to paragraphs 6(g), (t) and (u), in a foreign currency) will
be recognised and enforced;
(aa) (i) any final and conclusive judgment against a Relevant Company for a
fixed or readily calculable sum of money, and which has not been stayed in full,
obtained in any New York State or United States Federal Court having
jurisdiction recognised by the Relevant Jurisdiction will be recognised by the
Supreme Courts of New South Wales and the Australian Capital Territory (each a
"Supreme Court") so as to give rise to a fresh cause of action on the judgment
in such Supreme Court which will enable a further judgment capable of
enforcement against the Relevant Company to be obtained without re-examination
or re-litigation of the matters disposed of or adjudicated by that action except
where:
A. the foreign judgment is not consistent with the public policy of that
Relevant Jurisdiction (and we are not aware of any reason of public policy which
would prevent enforcement of such a judgment);
B. the foreign judgment has been obtained by fraud or duress;
C. the foreign judgment was obtained in proceedings which contravene the
principles of natural justice;
D. the foreign judgement is a penal or revenue judgement; or
E. there has been a prior judgement in another court between the same
parties concerning the same issues as are dealt with in the foreign judgement;
and
(ii) to enable enforcement in the Supreme Court of a judgment obtained in a
currency other than Australian dollars, the amount of that judgment may have to
be converted into Australian dollars on the basis of the rate of exchange
prevailing at the date of judgment. In the absence of an official or fixed rate
of exchange we are not aware of the rate of exchange which would be held to be
the rate of exchange prevailing at the date of judgment for the purpose of the
conversion to Australian dollars on enforcement of a judgment in another
currency;
(bb) the submission by a Relevant Company to the jurisdiction of the courts of
New York in the Underwriting Agreement and the Credit Support Annexes and the
appointment by it of any process agent under the Underwriting Agreement and the
Credit Support Annexes for any action or proceeding commenced in New York is
irrevocably valid and binding on it under the laws of each Relevant
Jurisdiction;
(cc) it is not necessary either in order to enable the Bank of New York,
New York Branch (in its capacity as Class A-1 Note Trustee, Class A-1 Note
Registrar, Agent Bank and Principal Paying Agent) to exercise its rights under
the Security Trust Deed, the Class A-1 Note Trust Deed and the Agency Agreement
or by reason of the execution of the Security Trust Deed, the Class A-1 Note
Trust Deed and the Agency Agreement or the performance, in such capacities,
outside Australia by the Bank of New York, New York Branch of its obligations
thereunder, that the Bank of New York, New York Branch should be licensed,
qualified or entitled to carry on business in Australia;
(dd) the Bank of New York, New York Branch (in its capacity as Class A-1
Note Trustee, Class A-1 Note Registrar, Agent Bank and Principal Paying Agent)
will not be deemed to be resident, domiciled, carrying on business or subject to
taxation in Australia, by reason only of the execution of the Security Trust
Deed, the Class A-1 Note Trust Deed and the Agency Agreement and the performance
outside Australia and/or enforcement of the Security Trust Deed, the Class A-1
Note Trust Deed and the Agency Agreement;
-73-
<PAGE>
(ee) except as expressly indicated in clauses 9 and 28 of the Security Trust
Deed the Secured Creditors (as defined in the Security Trust Deed) are not
entitled to terminate, extinguish or wind up the Series Trust; and
(ff) upon the winding up of the Bank, Posted Collateral (as defined in each
Credit Support Annex) transferred by the Bank to, and held by, the Trustee (or
its custodian) pursuant to the terms of the relevant Credit Support Annex
(including, without limitation, paragraph 13(m)(ix) of each Credit Support
Annex) may be applied in accordance with the terms of the relevant Credit
Support Annex.
8. Time Given
This opinion is given as at 9:00 am Sydney time on 2000. It is for the benefit
solely of the persons to whom it is addressed and may not be relied upon by any
other person, firm or corporation for any purpose whatsoever.
Yours faithfully
CLAYTON UTZ
Brian Salter
Partner SCHEDULE
ADDRESSEES
Standard & Poor's (Australia) Pty.
Limited
Level 37
120 Collins Street
MELBOURNE VIC 3000
Attention: Mei Lee Da Silva
Fitch IBCA (Australia) Pty. Limited
Level 29, Chifley Tower
Chifley Square
SYDNEY NSW 2000
Attention: Ben McCarthy
Commonwealth Bank of Australia and Securitisation Advisory Services Pty Limited
Level 8, 48 Martin Place
SYDNEY NSW 2000
Attention: Leanne Leong/Peter Christie
P.T. Limited
Level 7
39 Hunter Street
SYDNEY NSW 2000
Attention: The Directors
Moody's Investors Service Inc
Level 10
55 Hunter Street
SYDNEY NSW 2000
-74-
<PAGE>
Attention: Patrick Eng
Perpetual Trustee Company Limited
Level 7
39 Hunter Street
SYDNEY NSW 2000
Attention: The Directors
The Bank of New York, London Branch
48th Floor
One Canada Square
LONDON E14 5AL
UNITED KINGDOM
Attention: The Directors
The Bank of New York, New York Branch
101 Barclay Street 21W
New York, New York 10286
THE UNITED STATES OF AMERICA
Attention: The Directors
Warburg Dillon Read (Australia) Pty
Limited
Level 25
Governor Phillip Tower
1 Farrer Place
SYDNEY NSW 2000
Attention: The Directors
J.P. Morgan Securities Inc. (as
representative of the several
Underwriters listed in Schedule 1 of
the Underwriting Agreement)
60 Wall Street
New York, New York, 10260 0060
THE UNITED STATES OF AMERICA
Attention: .
Merrill Lynch Capital Services, Inc.
C/O Merrill Lynch (Australia) Pty
Limited
Level 49
19-29 Martin Place
SYDNEY NSW 2000
Attention: Tom Saywell
Macquarie Bank Limited
No. 1 Martin Place
SYDNEY NSW 2000
Attention: The Directors
[TO BE UPDATED]
-75-
<PAGE>
[TO BE UPDATED]
EXHIBIT C
---------
Form of Mallesons, Stephen Jaques Opinion
-----------------------------------------
[ ] 2000
Standard & Poor's (Australia) Pty Limited
Level 37
120 Collins Street
Melbourne VIC 3000
Fitch (Australia) Pty Limited
Level 29
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Securitisation Advisory Services Pty Limited
Level 8
48 Martin Place
Sydney NSW 2000
P.T. Limited
Level 7
39 Hunter Street
Sydney NSW 2000
The Bank of New York, London Branch
48th Floor
One Canada Square
London E14 5AL
England
J.P.Morgan Securities Inc.
(as representatives of the underwriters referred
to in Schedule 1 to the Underwriting
Agreement)
60 Wall Street New York, New York
USA
Moodys Investors Service
55 Hunter Street
Sydney NSW 2000
Commonwealth Bank of Australia
Level 8
48 Martin Place
Sydney NSW 2000
Perpetual Trustee Company Limited
Level 3
39 Hunter Street
Sydney NSW 2000
The Bank of New York, New York Branch
101 Barclay Street
21W
New York, New York 10286
USA
Merrill Lynch Capital Services Inc.
c/o- Merrill Lynch (Australia) Pty Limited
Level 49
19-29 Martin Place
Sydney NSW 2000
-76-
<PAGE>
Dear Sirs
Perpetual Trustee Company Limited (Trustee) and P.T. Limited (Security Trustee)
Series 2000-1G Medallion Trust (Trust)
We refer to the creation of the Trust in respect of which we have acted as legal
advisers to the Trustee (in its capacity as trustee of the Trust) and the
Security Trustee in New South Wales, Victoria, Western Australia, Queensland and
the Australian Capital Territory (Relevant States) and the Commonwealth of
Australia (Australia) (together, the Relevant Jurisdictions).
This opinion relates only to the laws of the Relevant Jurisdictions and is given
on the basis that it will be construed in accordance with the laws of New South
Wales. We express no opinion about the laws of another jurisdiction (including,
without limitation, the laws of England) or (except as expressly provided in
paragraph 4) factual matters.
We have relied exclusively on the Trustees Certificate in relation to the
matters of fact contained in the Trustee Certificate and in respect of which we
opine in this opinion.
Where we have referred in this opinion to our state of knowledge in connection
with any circumstance, transaction or other matter, except as expressly
otherwise indicated in this opinion, our knowledge relates only to the actual
state of knowledge of Stuart Fuller and Matthew Kelly and any other partner or
employee of Mallesons Stephen Jaques in our Sydney office who has been acting in
that capacity for the Trustee or the Security Trustee (Acting Person).
1 Documents
We have examined an original execution copy (or a fax or a photocopy)
(certified or otherwise identified to our satisfaction) of the following
documents relating to the Trust and the Security Trust:
(a) the Master Trust Deed dated 8 October 1997 between the Trustee and
Securitisation Advisory Services Pty Limited (Manager) (Trust Deed);
(b) the Series 2000-1G Medallion Trust Series Supplement dated 18 March
2000 between the Trustee, the Manager, and the Commonwealth Bank of
Australia (Commonwealth Bank) (as Seller and Servicer) (Series
Supplement);
(c) the Series 2000-1G Medallion Trust Security Trust Deed dated 18 March
2000 between the Trustee, the Manager, the Security Trustee and The
Bank of New York, New York Branch (Note Trustee) (Security Trust
Deed);
(d) the Series 2000-1G Medallion Trust Liquidity Facility Agreement dated
18 March 2000 between the Commonwealth Bank (as Liquidity Facility
Provider), the Manager and the Trustee;
(e) the Series 2000-1G Medallion Trust Redraw Facility Agreement dated 18
March 2000 between the Trustee, Commonwealth Bank (as Redraw Facility
Provider) and the Manager;
(f)
-77-
<PAGE>
(i) the Series 2000-1G Medallion Trust Currency Swap Agreement
comprising an ISDA Master Agreement, the Schedule to it, each
Confirmation, the Guarantee and the Credit Support Annex issued
pursuant to it, each dated [ ] 2000 between the
Trustee, the Manager, Commonwealth Bank (as Guarantor) and
Merrill Lynch Capital Services Inc (in its capacity as Currency
Swap Provider);
(ii) the Series 2000-1G Medallion Trust Currency Swap Agreement
comprising an ISDA Master Agreement, the Schedule to it, and each
Confirmation, The Guarantee and the Credit Support Annex issued
pursuant to it, each dated [ ] 2000 between the
Trustee, the Manager, Merrill Lynch Capital Services Inc (as
Guarantor) and Commonwealth Bank (in its capacity as Currency
Swap Provider),
(each a Currency Swap);
(g) the Series 2000-1G Medallion Trust Interest Rate Swap Agreement
comprising on ISDA Master Agreement, the Schedule to it, and each
Confirmation issued pursuant to it, dated 18 March 2000 between the
Trustee, the Manager and Commonwealth Bank (as Interest Rate Swap
Provider);
(h) the Series 2000-1G Medallion Trust Underwriting Agreement dated [
] 2000 between the Trustee, the Manager, Commonwealth Bank and J.P.
Morgan Securities Inc (Underwriting Agreement);
(i) the Class A-1 Note Trust Deed dated [ ] 2000 between
the Trustee, the Manager and the Note Trustee (Note Trust Deed) which
attaches as a schedule the Terms and Conditions of the Class A-1 Notes
(Note Terms and Conditions);
(j) the Agency Agreement dated [ ] 2000 between the
Trustee, the Manager, the Note Trustee (as Note Trustee, Class A-1
Note Registrar, Principal Paying Agent and Agent Bank) and The Bank of
New York, London Branch (as Paying Agent) (Agency Agreement);
(k) the Lenders Mortgage Insurance Master Policy dated [ ]
2000 issued by Housing Loans Insurance Corporation Pty Limited and GE
Capital Mortgage Insurance Corporation (Australia) Pty Ltd in favour
of the Commonwealth Bank and the Trustee;
(l) the powers of attorney dated 8 October 1997 and 17 March 2000 given by
the Trustee empowering the execution by the Trustee of the Documents
to which it is a party and the power of attorney dated 17 March 2000
given by the Security Trustee empowering the execution by the Security
Trustee of the Documents to which it is a party (Powers of Attorney);
(m) an extract of the minutes of meeting of the board of directors of the
Trustee dated 17 March 2000 which evidences the resolutions
authorising the signing, delivery and observance of obligations of the
Trustee under the Documents; and
(n) the constitution of each of the Trustee and the Security Trustee; and
-78-
<PAGE>
(o) the certificate dated [ ] 2000 given by an authorised officer of the
Trustee and the Security Trustee, a copy of which is enclosed with
this opinion (Trustees Certificate).
In this opinion, the expression Documents means the documents listed in
paragraphs (a) to (k).
We have also examined copies (certified or otherwise identified to our
satisfaction) of the Prospectus dated [ ] 2000 and the Note
Terms and Conditions but note, for the avoidance of doubt, that we do not
provide an opinion in respect of any of them.
2 Assumptions
We have assumed:
(a) the authenticity of all signatures, seals, duty stamps and markings;
(b) the completeness of all documents submitted to us and the conformity
to originals of all documents submitted to us as photocopies or fax
copies;
(c) that the constitutions of the Trustee and the Security Trustee
provided to us on or about [ ] 2000 are the
constitutions of the Trustee and the Security Trustee (respectively)
as at the date of this letter and that no amendments have been made to
them since that date;
(d) that all authorisations specified above remain in full force and
effect;
(e) that the Documents have been or will be duly authorised by the parties
to them (other than the Trustee and the Security Trustee) and do or
will constitute valid and binding obligations of all the parties to
them, other than the Trustee and the Security Trustee, under all
relevant laws including the laws of the Relevant Jurisdictions;
(f) the delivery of the Documents on behalf of the Trustee and Security
Trustee;
(g) that:
(i) the resolution of the board of directors was properly passed
(including that any meeting convened was properly convened);
(ii) all directors who participated and voted were entitled so to do;
(iii) the directors have properly performed their duties and all
provisions relating to the declaration of directors interests or
the power of interested directors to vote were duly observed,
but there is nothing in the searches referred to in paragraph 3 or on
the face of the extract of the minutes referred to in paragraph 1(m)
that would lead us to believe otherwise, and, in any event, we note
that you may rely on the assumptions specified in section 129 of the
Corporations Law unless you knew or suspected that the assumptions
were incorrect;
-79-
<PAGE>
(h) that the Trustee was the sole trustee of the Trust at the time it
executed the Documents (and we confirm that there is nothing in any of
the Documents that leads us to believe that this assumption is
incorrect);
(i) that the Security Trustee was the sole trustee of the trust
established under the Security Trust Deed (Security Trust) at the time
it executed the Documents (and we confirm that there is nothing in any
of the Documents that leads us to believe that this assumption is
incorrect);
(j) that, if an obligation is to be performed in a jurisdiction outside
Australia, its performance will not be contrary to an official
directive, impossible or illegal under the law of that jurisdiction;
(k) that the Commissioner of Taxation has not given and will not give a
direction under section 218 or section 255 of the Income Tax
Assessment Act 1936 of Australia (TAA) or section 74 of the Sales Tax
Assessment Act 1992, requiring the Trustee or the Security Trustee to
deduct from sums payable by it to a person under the Documents an
amount of Australian tax payable by the payee;
(l) that no transaction in connection with the Documents constitutes an
unfair preference, an uncommercial transaction, an insolvent
transaction or an unfair loan within the meaning of sections 588FA,
588FB, 588FC or 588FD respectively of the Corporations Law;
(m) that no party has contravened or will contravene section 208 or
section 209 of the Corporations Law by entering into any Document or a
transaction in connection with any Document;
(n) each person who has signed the Documents as an attorney of the Trustee
and the Security Trustee is in fact a person named or referred to in
the Powers of Attorney for the relevant company;
(o) that the Powers of Attorney have been or will be registered in New
South Wales as appropriate and we understand Clayton Utz, Sydney will
attend to registration of the Powers of Attorney after settlement of
the transaction;
(p) that the Trustee entered into the Documents (other than the Trust
Deed) in its capacity as trustee of, and for the purposes of, the
Trust and for the benefit of the beneficiaries of the Trust (however,
we note that each Document (other than the Trust Deed) states in the
listing of the Trustee as a party that it enters into the Document in
its capacity as trustee of the Trust, and we are not aware of any
circumstance to the contrary);
(q) that the Security Trustee entered into the Documents to which it is a
party (other than the Security Trust Deed) in its capacity as trustee
of, and for the purposes of, the Security Trust and for the benefit of
the beneficiaries of the Security Trust (however, we note that each
Document (other than the Security Trust Deed) states that the Security
Trustee enters into the Document in its capacity as trustee of the
Security Trust, and we are not aware of any circumstance to the
contrary);
-80-
<PAGE>
(r) that the officers and agents of the Trustee and the Security Trustee
have properly performed their duties to the Trustee and the Security
Trustee respectively and we note that, under section 129(4) of the
Corporations Law, you may make this assumption unless you know or
ought to know that the assumption is incorrect;
(s) that upon execution of the Series Supplement by the Trustee the
Manager paid the sums referred to in that document to constitute the
Trust;
(t) that the contents of the Trustee s Certificate are true and correct in
all respects;
(u) that the Trustee has not exercised its powers under the Documents to
release, abandon or restrict any power conferred on it by the Trust
Deed;
(v) that the Security Trustee has not exercised its powers under the
Documents to release, abandon or restrict any power conferred on it by
the Security Trust Deed;
(w) no action has been taken to terminate the Trust or the Security Trust;
(x) the Underwriting Agreement will, upon execution, constitute legal,
valid, binding and enforceable obligations of each person which is a
party to it under the laws of the State of New York (including,
without limitation, the Trustee), is enforceable in the courts of the
State of New York (except to the extent that enforceability may be
limited by general principles of the State of New York law or equity)
and that no party to them will contravene any laws of the State of New
York (including any laws relating to the issue of the Notes (as
defined in the Series Supplement) by the Trustee) by entering into and
performing the obligations contained in that agreement;
(y) in the case of the Underwriting Agreement, the formalities for
execution by the Trustee required by the law of its place of execution
(assuming that place to be outside Australia) have been, or will be,
complied with;
(z) that the Trustee (in its capacity as trustee of the Trust) is able to
pay all its debts, as and when they become due and payable, at the
time Documents are entered into, or any act is done, or any omission
is made, for the purpose of giving effect to a transaction under any
Document (and that the Trustee does not become unable to pay any of
its debts as and when they become due and payable, as a result of any
such act or event);
(aa) that all of the provisions contained in the Documents have been, and
will be, strictly complied with (however, please note that this
assumption does not affect the opinion contained in paragraph 4(d)
that the obligations of the Trustee and the Security Trustee under the
Documents are enforceable (as that term is defined in paragraph 4(d));
and
(bb) that, except to the extent that the relevant representation and
warranty is the subject of an opinion in paragraph 4, the
representations and warranties made by the Trustee and the Security
Trustee in each Document are correct in all respects at all times.
We have not taken any steps to verify these assumptions but, without making
specific enquiry beyond the steps referred to in this opinion, none of the
Acting Persons has actual knowledge
-81-
<PAGE>
as at the date of this opinion of any matter which may cause any of the
factual matters referred to above to be incorrect.
3 Searches
We have relied on an inspection of the public records (which are not
necessarily complete or up to date) on microfilm or in extract which are
available to the public at the offices of the Australian Securities and
Investments Commission in Sydney on:
(a) 22 October 1997 at 10:50am and [ ] 2000 at [
] - in the case of the Trustee; and
(b) [ ] 2000 at [ ] - in the case of the
Security Trustee.
We have not made any other searches.
4 Opinion
On the foregoing basis and subject to the qualifications set out below, we
are of the opinion that:
(a)
(i) the Trustee is incorporated and validly existing under the laws
of New South Wales and is capable of suing and being sued in its
corporate name;
(ii) the Security Trustee is incorporated and validly existing under
the laws of Victoria and is capable of suing and being sued in
its corporate name;
(and we note that the searches that we have undertaken, as referred to
in paragraph 3 above, did not disclose that any proceeding relating to
the insolvency, administration or liquidation of the Trustee or the
Security Trustee has been filed with the Australian Securities and
Investments Commission (however, you should be aware that such records
are not necessarily accurate or up to date));
(b) each of the Trustee and the Security Trustee has the corporate power
to enter into the Documents to which it is a party and the relevant
Power of Attorney and to observe its obligations under them (including
the power to issue the Notes);
(c) each of the Trustee and the Security Trustee has taken all corporate
action required on its part to authorise the execution, delivery and
observance of its obligations under the Documents to which it is a
party (including, in the case of the Trustee, the issue of the Notes
and the purchase of the housing loans and related rights under the
Series Supplement);
(d) the Documents have been duly executed and delivered by each of the
Trustee and Security Trustee;
(e) the obligations of the Trustee and the Security Trustee under each
Document to which it is a party are valid, binding and enforceable in
accordance with the terms of the Document or, in the case of the
Notes, when executed by an attorney under the
-82-
<PAGE>
relevant Power of Attorney and duly authenticated and delivered in
accordance with their terms and the terms of the Note Trust Deed and
the Agency Agreement. The expression enforceable means that the
relevant obligations are of a type that the courts in the Relevant
Jurisdictions enforce and does not mean that the obligations will
necessarily be enforced in all circumstances in accordance with their
terms. In particular, but without limitation, see paragraphs 5(a), (b)
and (c). We express no opinion as to the enforceability of the
Underwriting Agreement and the Credit Support Annex to each Currency
Swap under New York law;
(f) based on the contents of the opinion of the [general counsel] of the
Note Trustee dated [ ] 2000 (on which we have relied upon exclusively
for the purposes of this paragraph (e)), the obligations of the Note
Trustee under each Document to which it is a party are valid, binding
and enforceable in accordance with the terms of the Document;
(g) the execution and delivery by or on behalf of the Trustee and the
Security Trustee of the Documents to which it is a party and the
observance of its obligations under the Documents, and the issue of
the Notes, will not contravene:
(i) any law in force in the Relevant Jurisdictions applicable to
companies generally or to companies acting as trustee
(including, without limitation, any Consumer Credit Legislation
applicable to the Trustee or the Security Trustee);
(ii) its constitution;
(iii) (in the case of the Trustee) the Trust Deed; or
(iv) (in the case of the Security Trustee) the Security Trust Deed;
(h) neither the Trustee nor the Security Trustee enjoys any immunity from
suit in the court of any Relevant Jurisdiction nor are its assets
exempt from execution, subject to the express terms of the Documents;
(i) no approval, authorisation, permission or consent of, or filing,
recording or registration with, any public authority, public office or
governmental agency of, any Relevant Jurisdiction is necessary in
connection with:
(i) the execution, delivery, validity or enforceability of the
Documents to which each of the Trustee and the Security Trustee
is a party or the issue of the Notes; or
(ii) the performance by the Trustee and the Security Trustee of its
respective obligations under the Documents to which it is a
party or the issue of the Notes,
except that a notice in respect of the charge contained in the
Security Trust Deed is required to be lodged at an office of the
Australian Securities and Investments Commission within 45 days of it
being executed, and failure to do so will render that charge void as a
security as against a liquidator or administrator or the administrator
of a deed of company arrangement of that company. We note that Clayton
Utz,
-83-
<PAGE>
Sydney will lodge the relevant notices with the Australian
Securities and Investments Commission;
(j) upon execution of the Documents, and payment of the amount referred to
in paragraph 2(q), the Trust will be properly constituted;
(k) upon execution of the Documents, the Security Trust will be properly
constituted;
(l) in respect of the Underwriting Agreement and each Credit Support
Annex:
(i) to enforce a conclusive and unsatisfied judgment which is
enforceable by execution in the State of New York and obtained
in relation to the Underwriting Agreement and each Credit
Support Annex in a superior court of New York having
jurisdiction to give that judgment, it is necessary for the
judgment creditor to bring separate proceedings in the
appropriate courts of the Relevant Jurisdictions founded on the
judgment and those courts could reasonably be expected in the
circumstances to give conclusive effect to the judgment for the
purpose of the proceedings;
(ii) a judgment in a foreign currency would, for the purpose of
enforcement, be converted to Australian dollars on the basis of
the rate of exchange prevailing at the date of judgment; and
(m) the courts of New South Wales and the federal Courts of Australia will
give effect to:
(i) the choice of the laws of New South Wales to govern the
Documents (other than the Underwriting Agreement and each
Credit Support Annex);
(ii) the choice of the laws of New York to govern the Underwriting
Agreement and each Credit Support Annex;
(iii) the submission to the jurisdiction of the courts of New South
Wales in the case of the Documents (other than the Underwriting
Agreement and each Credit Support Annex);
(iv) the submission to the jurisdiction of the courts of New York in
the case of the Underwriting Agreement and each Credit Support
Annex.
5 Qualifications
This opinion is subject to the following qualifications:
(a) the nature and enforcement of obligations may be affected by lapse of
time, failure to take action or laws (including, without limitation,
laws relating to bankruptcy, insolvency, liquidation, receivership,
administration, re-organisation and re-construction) and defences
generally affecting creditors rights;
(b) a creditors rights may be affected by a specific court order obtained
under the laws (including, without limitation, section 444F and part
5.3A division 13 of the Corporations Law) and defences generally
affecting creditors rights;
-84-
<PAGE>
(c) the availability of certain equitable remedies (including, without
limitation, injunction and specific performance) is at the discretion
of a court in the Relevant Jurisdictions;
(d) an obligation to pay an amount may be unenforceable if the amount is
held to constitute a penalty;
(e) a provision that a statement, opinion, determination or other matter
is final and conclusive does not necessarily prevent judicial enquiry
into the merits of a claim by an aggrieved party;
(f) the laws of the Relevant Jurisdictions may require that parties act
reasonably and in good faith in their dealings with each other;
(g) the question whether a provision of a Document which is invalid or
unenforceable may be severed from other provisions is determined at
the discretion of a court in the Relevant Jurisdictions;
(h) an indemnity for legal costs may be unenforceable;
(i) we express no opinion as to:
(i) provisions precluding oral amendments or waivers;
(ii) whether a court would determine that any particular exercise by
the Trustee of its powers under the Master Trust Deed and the
Series Supplement relating to the Trust is for the benefit of
beneficiaries of the Trust;
(iii) whether a court would determine that any particular exercise by
the Security Trustee of the powers under the Security Trust
Deed relating to the Security Trust is for the benefit of the
beneficiaries of the Security Trust;
(iv) whether a judgment for a monetary amount would be given in a
currency other than Australian dollars, although recent
decisions of English Courts allowing judgments in a foreign
currency have been followed in the Courts of New South Wales;
(v) the date on which a conversion from foreign currency would be
made for the purpose of enforcing a judgment.
However, we confirm that nothing in this paragraph affects the opinion
given in paragraph 4(e) as to the Trustee s and the Security Trustee s
powers under the Master Trust Deed and the Security Trust Deed
respectively.
(j) court proceedings may be stayed if the subject of the proceedings is
current before a court;
(k) a document may not be admissible in court proceedings unless
applicable stamp duty has been paid;
(l) in order to enforce a foreign judgment in the Relevant Jurisdictions
it may be necessary to establish that the judgment is for a fixed or
certain sum of money and
-85-
<PAGE>
is not in the nature of a penalty or revenue debt and, if raised by
the judgment debtor, it may be necessary to establish that:
(i) the judgment debtor (or its duly appointed agent) received
actual notice of the proceedings in sufficient time to contest
the proceedings;
(ii) the judgment was not obtained by fraud or duress or in a manner
contrary to natural justice or public policy in the Relevant
Jurisdictions; and
(iii) the subject matter of the proceedings giving rise to the
judgment was not immovable property situated outside the
Relevant Jurisdictions;
(m) we express no opinion as to the laws of the State of New York;
(n) a court will not give effect to a choice of laws to govern the
Underwriting Agreement or each Credit Support Annex, or a submission
to the jurisdiction of certain courts, if to do so would be contrary
to public policy in the Relevant Jurisdictions. We are not aware that
such a submission was made on any basis other than such bona fide
basis and without such a primary purpose;
(o) our opinion is based exclusively on our reliance on the contents of
the Trustees Certificate in relation to all matters contained in the
Trustees Certificate;
(p) the specific approval of the Reserve Bank of Australia must be
obtained in connection with certain payments and transactions having a
prescribed connection with countries or entities designated from time
to time by the Reserve Bank of Australia for the purposes of the
Banking (Foreign Exchange) Regulations (currently Iraq, Libya , the
Federal republic of Yugoslavia (Serbia and Montenegro), the Afghan
faction known as Taliban and the National Union for the Total
Independence of Angola).
6 Benefit
This opinion is addressed to you personally and may not without our prior
written consent be:
(a) relied on by another person [(except for Mayer, Brown & Platt who may
rely on this opinion for the purpose of issuing its legal opinions in
relation to the Trust)];
(b) disclosed, except to persons who in the ordinary course of your
business have access to your papers and records on the basis that they
will make no further disclosure; and
(c) filed with a government agency or quoted or referred to in a public
document.
This opinion is strictly limited to the matters stated in it and does not
apply by implication to other matters.
This opinion is given in respect of the laws of the Relevant Jurisdictions
which are in force at 9:00 am on the date of this letter.
Yours faithfully
-86-
<PAGE>
EXHIBIT D
---------
Form of Opinion of CBA's Chief Solicitor and General Counsel
------------------------------------------------------------
Direct Line (02) 9378 4712
My Ref: Ian Cambourn 1601926
[ ] March 2000
To: The addressees specified in the Schedule
Dear Ladies and Gentlemen
SERIES 2000-1G MEDALLION TRUST SECURITISATION
COMMONWEALTH BANK OF AUSTRALIA
SECURITISATION ADVISORY SERVICES PTY LIMITED
I am the Chief Solicitor and General Counsel of the Commonwealth Bank of
Australia (the Bank) and have acted as solicitor and attorney in Australia for
the Bank and Securitisation Advisory Services Pty Limited (the Manager) in
connection with the preparation, execution and delivery of the Transaction
Documents. In that connection I have examined such documents as I have deemed
necessary or appropriate for the opinions expressed herein.
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In this opinion, unless otherwise expressly stated:
"Agency Agreement" means the Agency Agreement dated [ ] 2000 between the
Trustee, the Manager, The Bank of New York, New York Branch (as Class A-1
Note Trustee, Class A-1 Note Registrar, Agent Bank and Principal Paying
Agent) and The Bank of New York, London Branch (as Paying Agent).
"Bank" means the Commonwealth Bank of Australia, ACN 123 123 124.
"CBA Party" means the Bank and the Manager.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed, including
the form of the Class A-1 Notes and the Terms and Conditions of the Class
A-1 Notes appearing in Schedule 1 and 2 respectively thereof, dated [ ]
2000 between the Trustee, the Class A-1 Note Trustee and the Manager.
"Class A-1 Note Trustee" means The Bank of New York, New York Branch.
"Credit Support Annex" means each of the Credit Support Annexes annexed to
the Currency Swap Agreements.
-87-
<PAGE>
"Currency Swap Agreements" means the two ISDA Master Agreements dated [ ]
2000 between the Trustee, Merrill Lynch Capital Services Inc., the Bank
and the Manager.
"Dealer Agreement" means the Dealer Agreement dated [ ] 2000 between
the Trustee, the Bank, the Manager, Macquarie Bank Limited, ACN 008 583 542
and Warburg Dillon Read (Australia) Pty Limited, ACN 008 582 705.
"GEMICO Master Policy" means the Lenders' Mortgage Insurance Master Policy
executed on [ ] 2000 between the Bank, the Trustee and GE Capital
Mortgage Insurance Corporation (Australia) Pty Limited ACN 081 488 440.
"Interest Rate Swap Agreement" means the ISDA Master Agreement dated [ ]
2000 between the Bank, the Trustee and the Manager.
"Liquidity Facility Agreement" means the Liquidity Facility Agreement dated
[ ] 2000 between the Bank, the Manager and the Trustee.
"Manager" means Securitisation Advisory Services Pty Limited, ACN 080 151
337.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee and the Manager (as amended).
"Prospectus" means the Prospectus dated [ ] between the Bank, the
Manager and the Trustee for the US$[ ] Class A-1 Mortgage Backed
Floating Notes Series 2000 1G Medallion Trust.
"Security Trust Deed" means the Security Trust Deed dated [ ] 2000
between the Security Trustee, the Trustee, the Manager and the Class A-1
Note Trustee.
"Security Trustee" means P T Limited, ACN 004 454 666.
"Series Supplement" means the Series Supplement in relation to the Series
Trust dated [ ] 2000 between the Trustee, the Bank and the Manager.
"Series Trust" means the trust established under the Master Trust Deed and
the Series Supplement, known as the Series 2000-1G MEDALLION Trust.
"Standby Redraw Facility Agreement" means the Standby Redraw Facility
Agreement dated [ ] 2000 between the Bank, the Manager and the Trustee.
"Transaction Documents" means:
(a) the Master Trust Deed (in so far as it relates to the Series Trust);
(b) the Series Supplement;
(c) the Security Trust Deed;
(d) the Standby Redraw Facility Agreement;
(e) the Liquidity Facility Agreement;
-88-
<PAGE>
(f) the Interest Rate Swap Agreement;
(g) the Currency Swap Agreement;
(h) the GEMICO Master Policy;
(i) the Dealer Agreement;
(j) the Agency Agreement;
(k) the Class A-1 Note Trust Deed; and
(l) the Underwriting Agreement.
"Trustee" means Perpetual Trustee Company Limited, ACN 000 001 007, in its
capacity as trustee of the Series Trust.
"Underwriting Agreement" means the Underwriting Agreement dated [ ]
2000 between the Bank, the Manager, the Trustee and J P Morgan Securities
Inc, as representative of the several Underwriters listed in Schedule 1
thereto.
1.2 Interpretation
Words and expressions which are defined in the Master Trust Deed and the
Series Supplement have the same meanings when used in this opinion, unless
otherwise defined in it.
2. Documents Examined
I have examined the following documents:
(a) an original execution copy, a fax copy or a photocopy of each of the
Transaction Documents as executed;
(b) an original certified copy, or a fax or a photocopy of a certified
copy, of the constitution of each CBA Party;
(c) the Commonwealth Banks Act 1959 as amended ("the Act") and such
other acts of the Commonwealth of Australia as I have deemed necessary;
(d) a copy of a resolution passed by the board of directors of the Manager;
(e) copies of powers of attorney in connection with the execution of the
Transaction Documents by the CBA Parties; and
(f) such other documents, instruments and records as I have deemed
necessary or appropriate for the purpose of rendering the opinion stated
herein, and have made such factual investigations of the Bank and the
Manager and have made such investigations of law as I have deemed necessary
or appropriate for the purpose of rendering the opinion stated herein.
3. Assumptions
-89-
<PAGE>
In giving the opinion stated herein, I have made the following assumptions:
(a) that all documents submitted to me as copy or specimen documents
conform to the originals thereof;
(b) that originals of all documents executed or intended to be executed,
have been or will have been validly authorised, executed and delivered by
all of the parties thereto (other than the Bank) in the form or
substantially in the form presented to me;
(c) that the signatures on the originals of all documents submitted to
me are genuine (other than those of each CBA Party);
(d) that there has been or will have been no breach of the terms of any
of the documents submitted to me.
4. Qualifications
(a) My opinion is limited to the laws of the Commonwealth of Australia
in force at the date hereof and the facts appertaining at the date hereof.
I express no opinion as to any law other than the law of the Commonwealth
of Australia and I have assumed that there is nothing in any other law that
affects the opinion stated herein. In particular I have made no independent
investigation of the laws of New York as a basis for the opinion stated
herein and do not express or imply any opinion thereon;
(b) Insofar as my opinion relates to the performance of documents, those
opinions are limited to the principal transactions contemplated by those
documents. In particular, they do not extend to the performance of
obligations under other documents referred to in the documents.
5. Opinion
Based upon and subject to the foregoing and having regard to such legal
considerations as I deem relevant, I am of the opinion that:
1. Neither of the CBA Parties is, nor with the giving of notice or
lapse of time or both would either be, in violation of or in default
under its constitution or any note trust deed, mortgage, deed of
trust, loan agreement or other agreement or instrument known to me
to which the CBA Party is a party or by which it or any of its
properties is bound, except for violations and defaults which
individually and in the aggregate are not materially adverse to the
CBA Parties as a whole or not materially adverse to the consummation
of any of the transactions contemplated by any Transaction Document;
2. The issue and sale of the Class A-1 Notes under the Underwriting
Agreement and the execution, delivery and performance by the CBA
Parties of their respective obligations under the Transaction
Documents and the consummation of the transactions contemplated in
the Transaction Documents will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any note trust deed, mortgage, deed of trust, loan agreement
or other agreement or instrument known to me to which a CBA Party is
a party or by which the CBA
-90-
<PAGE>
Party is bound or to which any of the property or assets of a CBA
Party is subject, nor will any such action result in any violation
of the provisions of (i) the constitution of a CBA Party or (ii) any
law or statute applicable to a CBA Party in Australia or any
existing order, rule or regulation of any court or governmental
agency or body in Australia having jurisdiction over a CBA Party, or
any of its properties in any federal or State jurisdiction of the
Commonwealth of Australia;
3. Other than as set forth or contemplated in the Prospectus, there are
no legal or governmental investigations, actions, suits or
proceedings pending or, to the best of my knowledge, threatened in
any federal or State jurisdiction of the Commonwealth of Australia
against or involving a CBA Party or any property of a CBA Party, or
to which a CBA Party is a party or to which any property of a CBA
Party is subject: (i) asserting the invalidity of any of the
Transaction Documents, (ii) seeking to prevent the issuance of the
Class A-1 Notes or the consummation of any of the transactions
contemplated by any of the Transaction Documents, (iii) that may
adversely affect the federal or State income, excise, franchise or
similar tax attributes of the Class A-1 Notes, (iv) that could
materially and adversely affect a CBA Party's obligations under any
of the Transaction Documents, or (v) which, if determined adversely
to a CBA Party, could individually or in the aggregate reasonably be
expected to have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders'
equity or results of operations of the Bank and its subsidiaries
taken as a whole or that would reasonably be expected materially to
adversely affect the consummation of any of the transactions
contemplated by any of the Transaction Documents.
This opinion is addressed to you for your sole benefit. It is not to be relied
on by any other person or for any other purpose nor is it to be quoted or
referred to in any public document or filed with any government agency or other
person without my consent.
Yours faithfully
L E TAYLOR
-91-
