<PAGE>
EXHIBIT 1.1
EXECUTION
UNDERWRITING AGREEMENT
US$1,059,000,000
HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
Mortgage Backed Floating Rates Notes, Series 2001-1, Class A
UNDERWRITING AGREEMENT
January 17, 2001
Deutsche Banc Alex. Brown Inc.
As Representative of the
Several Underwriters Listed
in Schedule I
31 West 52nd Street
New York, New York 10019
Ladies and Gentlemen:
Perpetual Trustee Company Limited (ABN 42 000 001 007), acting in its
capacity as trustee (the "Issuer Trustee") of the HomeSide Mortgage Securities
Trust 2001-1 (the "Trust"), acting at the direction of HomeSide Global MBS
Manager, Inc., a company incorporated in the State of Delaware, as manager of
the Trust (the "Global Trust Manager"), proposes to sell to the several
Underwriters listed in Schedule 1 to this Agreement (the "Underwriters"), for
whom Deutsche Banc Alex. Brown Inc. is acting as representative (the
"Representative"), US$1,059,000,000 aggregate principal amount of Mortgage
Backed Floating Rate Notes, Series 2001-1, Class A (the "Notes") issued by the
Issuer Trustee. The Global Trust Manager is a wholly-owned indirect subsidiary
of National Australia Bank Limited (ABN 12 004 044 937), a company incorporated
in Victoria, Australia (the "National"). To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
HomeSide Mortgage Securities Trusts Definitions Schedule dated January 3, 2001
(the "Definitions Schedule"), by and among the Issuer Trustee, the Global Trust
Manager, P.T. Limited (the "Security Trustee"), The Bank of New York, New York
Branch, The Bank of New York, London Branch, the National, National Australia
Managers Limited, HomeSide Mortgage Securities, Inc. and Kredietbank S.A.
Luxembourgeoise or in the Supplemental Deed (defined below) in respect of the
Trust. To the extent of any disagreement between defined terms, the Supplemental
Deed shall take precedence over the Definitions Schedule, and this Agreement
shall take precedence over the Supplemental Deed.
The Notes will be secured principally by a pool of one - to four -
family residential mortgage loans secured by properties located in Australia
(the "Mortgage Loans"). The National, as seller (in such capacity, the
"Seller"), will equitably assign the Mortgage Loans to HomeSide Mortgage
Securities, Inc. (the "Depositor") who will in turn equitably assign the
Mortgage Loans to the Issuer Trustee. The Mortgage Loans will be serviced for
the Issuer Trustee by the National through its division, HomeSide (the
"Servicer").
The Trust was created pursuant to a master trust deed dated as of
January 3, 2001 (the "Master Trust Deed"), between the Global Trust Manager and
the Issuer Trustee, and a supplemental deed dated as of January 24, 2001 (the
"Supplemental Deed"), among the National (as Seller and Servicer), the Global
Trust Manager, the Issuer Trustee, the Security Trustee and the Depositor, and a
Notice of Creation of Trust between the Global Trust Manager and the Issuer
Trustee dated as of January 3, 2001. The Notes will be issued pursuant to a Note
Trust Deed to be dated as of January 24, 2001 among the Issuer Trustee, the
Global Trust Manager and The Bank of New York, New York Branch (the "Note
Trustee").
The Depositor and the Global Trust Manager have 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
<PAGE>
(collectively, the "Securities Act"), a registration statement on Form S-11
(No. 333-53160), including a form of preliminary prospectus, for registration
of the Notes under the Securities Act and has filed such amendments thereto
and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. Such registration statement in the
form in which it first became effective and as amended or supplemented
thereafter (if applicable) and the prospectus constituting a part thereof
(including all information deemed to be a part thereof pursuant to Rule
430A(b) of the rules and regulations of the Commission under the Securities
Act) as amended or supplemented thereafter (if applicable) under the
Securities Act) are herein referred to as the "Registration Statement" and
the "Prospectus", respectively, except that if any revised prospectus shall
be provided to the Underwriters for use in connection with the offering of
the Notes which differs from the Prospectus on file with the Commission at
the time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to such revised prospectus from and after the time
it is first provided to the Underwriters for such use.
When used in this Agreement, "Basic Documents" shall mean collectively:
the Master Trust Deed (in so far as it applies to the Trust), the Supplemental
Deed in respect of the Trust, the Notes, the Master Security Trust Deed (in so
far as it applies to the Trust), the Deed of Charge in respect of the Trust, the
Servicing Agreement (insofar as it applies to the Trust), the Note Trust Deed in
respect of the Trust, the Agency Agreement in respect of the Trust, the Initial
Sale Agreement and the Initial Offer to Sell in respect of the Trust, the
Secondary Sale Agreement and the Secondary Offer to Sell in respect of the
Trust, the Definitions Schedule, the Basis Swap Agreement in respect of the
Trust, the Fixed Rate Swap Agreement in respect of the Trust, the Currency Swap
Agreement in respect of the Trust, the Redraw Facility Agreement in respect of
the Trust, the Liquidity Facility Agreement in respect of the Trust, any
document in connection with, or evidencing a Support Facility in respect of the
Trust, any other document which is agreed to by the Global Trust Manager and the
Issuer Trustee to be a Transaction Document in relation to the Trust under the
Supplemental Deed, the DTC Letter of Representations, any undertakings given to
Euroclear or Clearstream-Luxembourg in connection with the Notes, any agreement,
instrument or undertaking entered into by the Issuer Trustee or any National
Party (as defined below) in connection with the listing of the Notes on the
Luxembourg Stock Exchange and any other contract, agreement or instrument in
connection with the issuance and sale of the Notes. The National and the Global
Trust Manager are each a "National Party" and collectively are referred to as
the "National Party" or the "National Parties."
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, undertaking or other
things of or in relation to the Issuer Trustee, unless otherwise stated, is a
reference to the assets, business, property, undertaking or other things of or
in relation to the Issuer Trustee in that capacity only.
Each of the National Parties and the Issuer Trustee hereby agrees with
the Underwriters as follows:
1. PURCHASE AND SALE. The Issuer Trustee, at the direction of the
Global Trust Manager, agrees to sell, and the Global Trust Manager agrees to
direct the Issuer Trustee to sell, the 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 the 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 National Parties and the Issuer Trustee understand
that the Underwriters intend to make a public offering of their respective
portions of the 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 the
Representative is advisable.
3. DELIVERY AND PAYMENT. Payment for the Notes shall be made by wire
transfer in immediately available funds to the account specified by the Issuer
Trustee to the Representative no later than 12:00 noon, New York City time on
January 25, 2001, or at such other time on the same or such other date, not
later than the fifth Business Day thereafter, as the Representative,
2
<PAGE>
the Issuer Trustee and the Global Trust 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, Melbourne and London.
Payment for the Notes shall be made against delivery to the nominee of
the DTC for the account of the Representative and for the respective accounts of
the several Underwriters of one or more fully registered global book-entry notes
(the "Book-Entry Notes") representing $1,059,000,000 in aggregate Invested
Amount of Notes, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Notes duly paid by the Issuer Trustee. The Book-Entry
Notes will be made available for inspection by the Representative at the offices
of Brown & Wood LLP at One World Trade Center, New York, New York 10048, 57th
Floor 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 the book-entry facilities of the DTC, except in limited
circumstances described in the Prospectus.
4. REPRESENTATIONS AND WARRANTIES OF THE ISSUER TRUSTEE AND THE
NATIONAL PARTIES.
I. The Issuer Trustee represents and warrants to each Underwriter and
the National Parties as of the date of this Agreement and as of the Closing
Date, and agrees with each Underwriter and the National 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 the
Issuer Trustee 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) the Issuer Trustee 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 the Issuer Trustee 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 have such power and
authority or to be so qualified or in good standing would not individually or in
the aggregate have a material adverse effect on the transactions contemplated
herein or in the Basic Documents;
(c) the Issuer Trustee has duly authorized, executed and
delivered this Agreement;
(d) the Notes have been duly authorized by the Issuer Trustee,
and, when the Notes have been issued (and duly authenticated by the 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 Master 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 the Issuer
Trustee 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 the Issuer Trustee 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) the Issuer Trustee 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, deed to secure
debt, loan agreement or other agreement or instrument to
3
<PAGE>
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 the Basic
Documents;
(g) the issue and sale of the Notes and the performance by the
Issuer Trustee of all of the provisions of the Issuer Trustee's obligations
under the Notes, the Basic Documents and this Agreement, and the consummation of
the transactions herein and therein contemplated will not (i) conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, deed to secure debt, 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
to which it is a party or by which it is bound other than pursuant to the Basic
Documents;
(h) no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Notes or the consummation by
the Issuer Trustee of the transactions contemplated by this Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications (i) 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"), (ii) as may be
required under state securities or "Blue Sky" Laws in connection with the
purchase and distribution of the Notes by the Underwriters and (iii) of or with
any court or governmental agency or body having jurisdiction over the Issuer
Trustee which the failure to obtain or make would not (A) have individually or
in the aggregate a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Issuer Trustee and its
subsidiaries, taken as a whole, (B) affect the validity of the Notes or rights
of the holders of the Notes or (C) prevent or delay the consummation of the
transactions contemplated in the Basic Documents;
(i) 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 maybe 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 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 Notes;
(j) the representations and warranties of the Issuer
Trustee contained in the Basic Documents are true and correct in all material
respects;
(k) the Issuer Trustee has not taken any corporate action and
(to the best of its knowledge and belief having made reasonable inquiry and
investigation) no other steps have been taken or legal proceedings been started
or threatened against it for its winding-up, dissolution or reorganization or
for the appointment of a receiver, receiver and manager, administrator,
provisional liquidator or similar officer of it or of any or all of its assets;
(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
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 of any of the Basic Documents to
4
<PAGE>
which it is or is to be a party or with the authorization, execution, issue,
sale or delivery of the Notes under this Agreement, (ii) the sale and
delivery of the 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 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 therewith, the perfection of the Issuer's Trustee's
legal title to the Mortgage Loans on which stamp duties or registration fees
may be payable and further in the case of any tax deducted by the Issuer
Trustee as provided for under section 12-190 of Schedule 1 of the Taxation
Administration Act, 1953, from a payment made pursuant to the Basic Documents
to a person that receives the payment for a supply made in the course of
furtherance of an enterprise carried on by the person in Australia and that
person has not quoted its Australian Business Number to the Issuer Trustee in
respect of that supply;
(m) the Notes and the obligations of the Issuer Trustee under
the Note Trust Deed will be secured (pursuant to the Master Security Trust Deed
and the Deed of Charge) by a first ranking fixed and floating charge over the
assets of the Trust; and
(n) no event has occurred or circumstances arisen which, had
the Notes already been issued, would (whether or not with the giving of notice
or direction and/or the passage of time and/or fulfillment of any other
requirement) oblige it to retire as Issuer Trustee or constitute grounds for its
removal as Issuer Trustee under any Basic Document or constitute an Event of
Default (as defined in the Deed of Charge).
II. Each National 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) The Global Trust Manager has filed a registration
statement on Form S-11 (No. 333-53160), including a form of preliminary
prospectus, for registration of the Notes under the Securities Act and has filed
such amendments thereto and will file such additional amendments thereto and
such amended prospectuses as may hereafter be required.
(b) 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 National 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, which is material in the context of
performing the National Parties' or Trust's obligations and duties under the
Notes and each Basic Document to which they are or are to be a party;
(c) it has been duly established and is validly existing with
power and authority under the laws of its jurisdiction of creation to 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 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 have such
power and authority or to be so qualified or in good standing would not
individually or in the aggregate have a material adverse effect on the
transactions contemplated in this Agreement or in the Basic Documents;
(d) this Agreement has been duly authorized, executed
and delivered by it;
(e) 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 National Party that is a party to it and the other parties thereto, will
constitute a valid and legally binding obligation of such National Party,
enforceable against it in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws of general
applicability relating to or affecting the enforcement of creditors rights
generally and to general equitable principles;
5
<PAGE>
(f) other than as set forth in or contemplated by the
Prospectus, and, in the case of National only, other than as disclosed in Note
41(a) (the Contingent Liabilities Note) in National's Annual Financial Report
for the year ended September 20, 2000, 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, (iii) that may
adversely affect the U.S. Federal or Australian Federal or state income, excise,
franchise or similar tax attributes of the Notes, (iv) that could materially and
adversely affect its performance of its obligations under, or the validity or
enforceability against it 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 Notes;
(g) there are no contracts or other documents to which it is a
party or bound 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; and
(h) its representations and warranties contained in the Basic
Documents are true and correct in all material respects as of the applicable
date made or given.
III. The Global Trust 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 National Party in
writing by such Underwriter through the Representative 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 Global Trust
Manager, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Global Trust 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 in this Section 4(II)(h) shall not apply to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Note Trustee under the Trust
Indenture Act, and (ii) statements 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 National Party in writing by such
Underwriter through the Representative expressly for use therein;
(c) 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
6
<PAGE>
"investment company" within the meaning of the Investment Company Act of 1940,
as amended;
(d) application has been made to list the Notes on the
Luxembourg Stock Exchange and for the Notes to be admitted to trading and all
relevant requirements for such listing will have been complied with; and
(e) 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.
5. COVENANTS AND AGREEMENTS.
I. The Issuer Trustee covenants and agrees with each of the
several Underwriters and each of the National Parties as follows:
(a) to use the net proceeds received by the Issuer Trustee
from the sale of the Notes pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
(b) to notify the Representative and the National Parties
promptly after it becomes actually aware of any matter which would make any of
its representations and warranties in this Agreement untrue if given at any time
prior to payment being made to the Issuer Trustee on the Closing Date and take
such steps as may be reasonably requested by the Representative to remedy the
same;
(c) to pay any stamp duty or other issue, transaction, value
added, goods and services or similar tax, fee or duty (including court fees) in
relation to the execution of, or any transaction carried out pursuant to, this
Agreement and the Basic Documents or in connection with the issue and
distribution of the Notes or the enforcement or delivery of this Agreement and
the Basic Documents;
(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-Luxembourg concerning the issue of the Notes and related matters;
(e) to provide reasonable assistance to the National Parties
to procure that the charges created by or contained in the Deed of Charge are
registered within all applicable time limits in all appropriate registers;
(f) 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;
(g) for the purposes of section 128F(3)(c) of the Australian
Tax Act, it will, before it issues any Note, seek a listing of the Notes on the
Luxembourg Stock Exchange and the admission of the Notes to trading on the
Luxembourg Stock Exchange, and use its best efforts to maintain such listing for
as long as any of the Notes are outstanding; provided, however, if such listing
becomes impossible, to use its best efforts to obtain, and will thereafter use
its best efforts to maintain a quotation for, or listing of, the Notes on such
other exchange as is commonly used for the quotation or listing of debt
securities as it may, with the approval of the Representative, decide.
II. Except where otherwise specified below as a covenant solely
applicable to the Global Trust Manager, each National Party severally covenants
and agrees with each of the several Underwriters and the Issuer Trustee as
follows:
7
<PAGE>
(a) in the case of the Global Trust Manager only, 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 Global Trust Manager only, to deliver,
at the expense of the Global Trust 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 (f) below, to each of the Underwriters as many copies of
the Prospectus (including all amendments and supplements thereto and documents
incorporated by reference therein) as the Representative may reasonably request
during the period within which the Representative may be required to deliver
such documents under the Act;
(c) in the case of the Global Trust 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;
(d) in the case of the Global Trust Manager only, to advise
the Representative promptly, and to confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective,
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed and to furnish the Representative with copies thereof, (iii) 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,
(iv) 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 (v) of the
occurrence of any event as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary 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 reasonable 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 the
qualification of the 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 the Global Trust Manager of any notification
with respect to any suspension of the qualification of the 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 Global Trust Manager only, if, during
such period of time after the first date of the public offering of the Notes and
in the opinion of counsel for the Underwriters a prospectus relating to the
Notes is required by law to be delivered in connection with sales by an
Underwriter or a dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the National Parties, to the Underwriters and to the dealers (whose names and
addresses the Representative will furnish to the National) to which 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
maybe 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 Global Trust Manager only, to endeavor
to qualify the 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
8
<PAGE>
reasonably required for distribution of the Notes, provided that the Global
Trust Manager shall not be required to file a general consent to service of
process in any jurisdiction;
(h) in the case of the Global Trust Manager only, to make
generally available to the holders of the 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 Global Trust Manager only, to the
extent, if any, that the ratings provided with respect to the Notes by the
Current Rating Agencies are conditional upon the furnishing of documents or the
taking of any other action by the Global Trust Manager or the Issuer Trustee, to
use its reasonable best efforts to furnish such documents and take any other
such action or, in the case of the National only, it will use its best efforts
to procure the Global Trust Manager to do so;
(j) it will on behalf of the Issuer Trustee: (i) for the
purposes of 128F of the Australian Tax Act, seek a listing of the Notes on the
Luxembourg Stock Exchange and the admission of the Notes to trading on the
Luxembourg Stock Exchange before the Issuer Trustee issues any Note, (ii) ensure
that the Issuer Trustee will not offer, issue or sell the Notes to the
Underwriters, until the Notes have been listed and have been authorized for
trading on the Luxembourg Stock Exchange or the Representative, on behalf of the
Underwriters, is satisfied that the Notes will be listed after the Closing Date
and (iii) it will use its best efforts to maintain such listing for as long as
any of the Notes are outstanding; provided, however, if such listing becomes
impossible, to use its best efforts to obtain, and will thereafter use its best
efforts to maintain a quotation for, or listing of, the Notes on such other
exchange as is commonly used for the quotation or listing of debt securities as
it may, with the approval of the Representative, decide;
(k) 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 Luxembourg Stock Exchange) and publish
all advertisements or other material and to comply with any other requirements
of the Luxembourg Stock Exchange that may be necessary in order to effect and
maintain such listing;
(l) to assist the Representative in making
arrangements with DTC, Euroclear and Clearstream-Luxembourg concerning the
issue of the Book-Entry Notes and related matters; and
(m) in the case of the Global Trust Manager only, so long as
the Notes are outstanding, to furnish to the Representative (i) copies of each
certificate, the annual statement of compliance and the annual audit report on
the financial statements of the Trust furnished to the Issuer Trustee or the
Note Trustee by the auditor pursuant to the Basic Documents by first class mail
as soon as practicable after such statements and reports are furnished to the
Issuer Trustee or the Note Trustee, (ii) copies of each amendment to any of the
Basic Documents, (iii) on each Determination Date or as soon as thereafter as
practicable, the note factor as of the related Record Date to be made available
to the Representative on Bloomberg, (iv) copies of all reports or other
communications (financial or other) furnished to holders of the Notes and copies
of any reports and financial statements furnished to or filed with the
Commission in connection with the Notes or any national securities exchange in
connection with the Notes, and (v) from time to time such other information
concerning the Trust or the Global Trust Manager as the Representative may
reasonably request.
III. The National covenants and agrees with each of the several
Underwriters and the Issuer Trustee as follows:
(a) at the Closing Date, to pay the Representative an
underwriting fee equal to 0.15% of the aggregate initial Invested Amount of the
Notes; provided, however, the Underwriters will rebate to the National Parties
an amount not to exceed 0.015% of such aggregate initial Invested Amount as
reimbursement for certain expenses of issuance of the Notes, but not to exceed
the actual expenses incurred by the National Parties.
9
<PAGE>
(b) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay, or cause to
be paid, all fees, costs and expenses incident to the performance of the
National Parties' obligations under this Agreement, including, without limiting
the generality of the foregoing, all fees, costs and expenses: (i) incident to
the preparation, issuance, execution, authentication and delivery of the Notes,
including any fees, costs and expenses of the 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 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) 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, (vi) the National Parties' counsel and accountants and the
Underwriters' counsel fees and disbursement that are chargeable to the National,
(vii) any expenses incurred by the National Parties in connection with any
"roadshow" presentation to potential investors (except for up to A$50,000 of
those expenses to be paid by the Representative if the transaction contemplated
by this Agreement is consummated) (viii) payable to Current Rating Agencies in
connection with the rating of the Notes and (ix) the legal fees of counsel for
the Underwriters; and
(c) to the extent, if any, that the ratings provided with
respect to the Notes by the Current Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by the National, to
use its reasonable best efforts to furnish such documents and take any other
such action.
IV. Selling Restrictions. It is understood that the several
Underwriters propose to offer the Notes for sale to the public as set forth
in the final Prospectus. Each Underwriter, severally and not jointly,
represents and warrants that:
(a) No prospectus in relation to the Notes has been lodged by
such Underwriter with, or registered at the request of such Underwriter by, the
Australian Securities and Investments Commission or the Australian Stock
Exchange Limited. Each Underwriter represents and agrees that it:
(i) has not (directly or indirectly) offered
for subscription or purchase or issued invitations
to subscribe for or buy nor has it sold the Notes;
(ii) will not (directly or indirectly) offer
for subscription or purchase or issue invitations
to subscribe for or buy nor will it sell the Notes;
and
(iii) has not distributed and will not distribute
any draft, preliminary or definitive offering
memorandum, advertisements or other offering material
relating to the Notes,
in the Commonwealth of Australia, its territories or possessions, unless:
(x) the minimum aggregate consideration payable
by each offeree is at least A$500,000 (disregarding
moneys lent by the offeror or its associates) or the
offer, invitation or distribution otherwise does not
require disclosure to investors in accordance with
Part 6D.2 of the Corporations Law of Australia, and
(y) such action complies with all applicable
laws and regulations.
(b) Each Underwriter agrees that it will not sell
Notes to, or invite or induce offers for the Notes from:
(i) any associate of a National Party
specified in Schedule II; or
10
<PAGE>
(ii) any other associate from time to time specified
in writing to the Underwriter by a National Party;
provided, however, that the offer and/or sale of
Notes by the Underwriter to an associate of the
National prior to receipt of written notice from the
National that such person constitutes an associate of
the National shall not be deemed a violation of this
Section (IV)(b).
(c) The Underwriters have offered, or will within 30 days of
the date of this Agreement offer, the Notes for sale to, or have invited offers
to purchase the Notes from (in each case, by delivery of any preliminary
prospectus or the final Prospectus or otherwise):
(i) at least 10 persons each of whom they reasonably
believe to be a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities
Act and not to be an associate of any other; or
(ii) at least 100 persons each of whom they
reasonably believe either has acquired similar
securities in the past or is likely to be interested
in acquiring the Notes.
(d) Each Underwriter, severally and not jointly, agrees to
provide such information relating to the issue and sale of the Notes as may be
reasonably requested by the Issuer Trustee for information for the purposes of
assisting the Issuer Trustee to demonstrate that the public offer test under
section 128F of the Tax Act has been satisfied in respect of the Notes, provided
that no Underwriter shall be obliged to disclose:
(x) the name or account information with respect to
any person except to the extent required by the
Issuer Trustee solely for purposes of determining
compliance with paragraph (d) above; 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, acknowledges
that no action has been taken to permit a public offering of the 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, offers, sells or
delivers Notes or has in its possession or distributes the Prospectus or any
other offering material in all cases at its own expense.
(f) Each Underwriter further represents and agrees,
severally and not jointly, that:
(i) it has not offered or sold and, prior to the date
six months after the date of issue of the Notes, will
not offer or sell any of the 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 businesses 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 Regulations 1995 (as amended);
(ii) it has complied and will comply with all
applicable provisions of the Financial Services Act
1986 with respect to anything done by it in relation
to the Notes in, from, or otherwise involving the
United Kingdom; and;
(iii) it 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
Notes, to a person who is of a kind described in
Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996
(as amended) or is a person to whom the document may
otherwise lawfully be issued or passed on.
11
<PAGE>
V. The Global Trust 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 National 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 of the determination of the public
offering price of the Notes 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;
(b) the Representative shall have received on and as of the
Closing Date a certificate of an Authorized Person of the Issuer Trustee and
each National Party, with specific knowledge about the party's financial matters
which certifies as to the matters set forth in Section 4I.(a) and (i) (in the
case of the Issuer Trustee) and Section 4II.(b) and (f) (in the case of the
National Parties) hereof;
(c) the Representative shall have received letters, dated the
date of delivery thereof, of (i) KPMG, LLP (Washington, D.C.), substantially 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 the National, excluding any questions of legal
interpretation, and (ii) KPMG, LLP (Melbourne, Australia), substantially 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;
(d) Stroock & Stroock & Lavan, LLP, counsel to the
Underwriters, shall have furnished to the Underwriters their written opinion,
dated the Closing Date, with respect to the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(e) Brown & Wood LLP, United States counsel for the National
Parties, shall have furnished to the Representative their written opinions,
dated the Closing Date, substantially 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;
(f) Brown & Wood LLP, United States federal income tax counsel
for the National Parties, shall have furnished to the Representative their
written opinion, dated the Closing Date, substantially 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;
(g) Mallesons Stephen Jaques, Australian counsel for the
National Parties, shall have furnished to the Representative their written
opinion, dated the Closing Date, substantially 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;
(h) Mallesons Stephen Jaques, Australian tax counsel for the
National Parties, shall have furnished to the Representative their written
opinion, dated the Closing Date, substantially in form and substance
satisfactory to the Representative, and such Australian tax
12
<PAGE>
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(i) Henry Davis York, 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 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) An internal counsel of the National knowledgeable of this
transaction shall have furnished to the Representative his written opinion,
dated the Closing Date, substantially in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as he may reasonably request to enable him to pass upon such matters;
(k) Counsel to the Interest Rate Swap Provider and Currency
Swap Providers shall have furnished to the Representative their written opinions
dated the Closing Date, substantially in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon such matters;
(l) the Representative shall have received a letter or letters
from each counsel delivering any written opinion to any Current 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;
(m) the Representative shall have received copies of letters
from each of the Current Rating Agencies stating that the Notes have been rated
AAA or its equivalent by the Current Rating Agencies;
(n) the Notes shall have been listed on the Luxembourg Stock
Exchange and admitted to trading on the Luxembourg 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 Notes; and
(o) on or prior to the Closing Date the Issuer Trustee and the
National Parties shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the National 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 Notes and
each person, if any, that controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act or otherwise
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) to which
it is liable under the Act, the Exchange Act or otherwise insofar as it arose
out of, or is based on or 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 National 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 therein not
misleading, except (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 National Party in
writing by such Underwriter through the Representative 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
13
<PAGE>
any person controlling any Underwriter) from whom the person asserting any
such loss, claim, damage or liability, purchased the 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 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 (1) any preliminary prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented) or (2) 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 - Prepayment Rate Model and
Modeling Assumptions", including the prepayment tables included thereunder.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Global Trust Manager, its directors, its
officers who sign the Registration Statement, the Depositor, its directors, its
officers who sign the Registration Statement, the Issuer Trustee and the
National and each person that controls a National Party or the Issuer Trustee
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act or otherwise to the same extent as the foregoing indemnity from the
National Parties to each Underwriter, but only with reference to information
relating to such Underwriter furnished to the National Parties in writing by
such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus. The parties hereto acknowledge and agree that the
only information relating to an Underwriter furnished to any National Party in
writing by such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus is the information appearing in the Prospectus in the
penultimate sentence of the second paragraph on page VII, paragraphs 3, 5 and 6
under the heading "Plan of Distribution--Underwriting" and in the case of
Deutsche Banc Alex. Brown Inc. and the National only, in paragraphs 10 and 11,
respectively, under the heading "Plan of Distribution--Underwriting."
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnity may be sought pursuant
to subsection (a) or (b) above, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Notes and such control persons of Underwriters shall be
designated in writing by the Representative and any such separate firm for the
Global Trust Manager, its directors, its officers who sign the Registration
Statement, the National and the Issuer Trustee and such control persons of each
of the Issuer Trustee and the National Parties shall be designated in writing by
such respective 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
14
<PAGE>
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, or insufficient to hold harmless, an Indemnified
Person in respect of any losses, claims, damages or liabilities referred to
therein (or, in the case where such indemnification is insufficient, in addition
to such partial indemnification), 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 National Parties
and the Issuer Trustee on the one hand and the Underwriters on the other hand
from the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the National 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 National Parties and the Issuer Trustee on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the National 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 Notes. The relative fault of the
National 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 National
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 National 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 subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the
underwriting fees received by it with respect to the Notes underwritten by it
and distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of Notes set forth opposite their names in Schedule
1 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.
To the extent that any payment of damages by a National Party pursuant
to this Agreement is determined to be a payment of damages pursuant to
Prudential Standard APS 120 - Funds Management and Securitisation, such payment
shall be subject to the terms of paragraph 15 of Guidance Note AGN 120.3 of that
prudential standard.
15
<PAGE>
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Issuer Trustee and
the National Parties set forth in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Issuer Trustee or a
National Party, its officers or directors or any other person controlling the
Issuer Trustee or a National Party and (iii) acceptance of and payment for any
of the Notes.
8. TERMINATION. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of the Representative, by
notice given to the Issuer Trustee and each National 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 Luxembourg Stock
Exchange or the Australian Stock Exchange, (ii) trading of any securities of or
guaranteed by the Issuer Trustee as trustee of the trust or any National 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, Victoria or United Kingdom authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States or Australia of a national emergency or war,
material adverse change in the financial markets of the United States,
Australia, France, Germany or England or other calamity or crisis the effect of
which on financial markets is such as to make it, in the reasonable judgment of
the Representative, impractical to proceed with the offering or delivery of the
Notes as contemplated by the final Prospectus (exclusive of any supplement
thereto).
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 Notes which it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of 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 Notes to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Notes set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of Notes
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representative may specify, to purchase the 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
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 Notes without the written consent of such Underwriter. If on
the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Notes which it or they have agreed to purchase hereunder on such date,
and the aggregate principal amount of Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, and arrangements satisfactory to the Representative and
the Global Trust 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 National Parties and the
Issuer Trustee. In any such case either the Representative or the Global Trust
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 maybe 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 National 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 National Party shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the National 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
16
<PAGE>
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 National Parties, the Issuer Trustee, the Underwriters, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the 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. ACTIONS BY REPRESENTATIVE; NOTICE. Any action by the
Underwriters hereunder may be taken by the Representative on behalf of the
Underwriters, and any such action taken by the Representative 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 Deutsche Banc Alex. Brown Inc., 31 West
52nd Street, New York, New York 10019 (Facsimile No.: 212-469-7120);
Attention: Paul Vambutas, Vice President. Notices to the National and the
Global Trust Manager shall be given to it at HomeSide Global MBS Manager,
Inc., 7301 Baymeadows Way, Jacksonville, Florida 32256 (Facsimile No.: (904)
281-3062); Attention: Robert Jacobs. 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) 9221-7E70; Attention: Manager
Securitization,
13. APPOINTMENTS OF PROCESS AGENT.
(a) Each of the National Parties hereby designates and
appoints Robert J. Jacobs (the "National 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 Robert Jacobs as such
authorized agent shall become effective immediately without any further action
on the part of the each of the National 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 13 and reasonably satisfactory to the
Representative. If the National Process Agent shall cease to act as agent for
service of process, each of the National Parties shall appoint, without
unreasonable delay, another such agent, and notify the Representative of such
appointment. Each of the National Parties represents to the Underwriters that it
has notified the National Process Agent of such designation and appointment and
that the National Process Agent has accepted the same in writing. Each of the
National Parties hereby authorizes and directs the National Process Agent to
accept such service. Each of the National Parties further agrees that service of
process upon the National 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 13 shall affect
the right of any Underwriter or any person controlling any Underwriter to serve
process in any other manner permitted by law.
(b) The Issuer Trustee hereby designates and appoints CT
Corporation, Los Angeles, California (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 CT Corporation, Los Angeles,
California 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 13 and reasonably satisfactory to the
Representative. 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 the Representative 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.
17
<PAGE>
Nothing in this Section 13 shall affect the right of any Underwriter or any
person controlling any Underwriter to serve process in any other manner
permitted by law.
14. CONSENT TO JURISDICTION; EXCHANGE RISK OF PAYMENTS IN
NON-U.S. CURRENCY.
(a) Each of the Parties hereto submits to the non-exclusive
jurisdiction of the federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
(b) The obligation of any of the National Parties or the
Issuer Trustee in respect of any sum due to any Underwriter shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by such
Underwriter of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Underwriter may in accordance with normal
banking procedures purchase United States dollars with such other currency; if
the United States dollars so purchased are less than the sum originally due to
such Underwriter hereunder, each of the National Parties and the Issuer Trustee
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Underwriter against such loss. If the United States dollars so
purchased are more than the sum originally due to such Underwriter, such
Underwriter agrees to indemnify the National Parties and the Issuer Trustee, as
applicable, for such difference.
15. FOREIGN TAXES. All payments to be made by the Issuer Trustee and
any National Party hereunder shall be made without withholding or deduction for
or on account of any present or future taxes, duties or governmental charges,
excluding for the purposes of this Section 15, (i) any taxes which are payable
as a consequence of any Underwriter having a necessary connection with the
relevant taxing jurisdiction and (b) any income or franchise tax on the overall
net income of such Underwriter imposed by the United States or the State of New
York (all such non-excluded taxes, duties or charges, "Foreign Taxes"), unless
the Issuer Trustee or such National Party, as applicable, is compelled by law to
deduct or withhold such Foreign Taxes. In that event, the Issuer Trustee or such
National Party, as applicable, shall pay such additional amounts as may be
necessary in order that the net amounts received after such withholding or
deduction shall equal the amounts that would have been received if no
withholding or deduction had been made.
16. WAIVER OF IMMUNITIES. To the extent that any of the Issuer Trustee
and National Parties or any of their properties, assets or revenues may have or
may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection this Agreement, the Issuer Trustee and the National Parties,
as applicable, each hereby irrevocably and unconditionally waives, and agrees
not to plead or claim, any such immunity and consents to such relief and
enforcement.
17. JUDGMENT CURRENCY. If any judgment or order in any legal proceeding
against any of the Issuer Trustee and the National Parties is given or made for
any amount due hereunder and such judgment or order is expressed and paid in a
currency (the "Judgment Currency") other than United States dollars and there is
any variation as between (i) the rate of exchange (the "Judgment Rate") at which
the United States dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order, and (ii) the rate of exchange (the "Market
Rate") at which the person to whom such amounts is paid (the "Payee") is able to
purchase United States dollars with the amount of the Judgment Currency actually
received by the holder, then the difference, expressed in United States dollars,
between such amount calculated at the Judgment Rate and such amount calculated
at the Market Rate shall be indemnified (a) if negative by the Issuer Trustee
and the National Parties, as applicable, to the Payee and (b) if positive by the
Payee to the Issuer Trustee and the National Parties, as applicable. The
foregoing indemnity shall constitute a separate and independent obligation of
the Issuer Trustee, the Global Trust Manager and/or the Payee, as the case may
be, and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "rate or exchange" shall
18
<PAGE>
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
18. 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 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 18(c)) hereof
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 National Parties may not
sue the Issuer Trustee in any capacity other than as trustee of the Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the 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 18 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 or the Supplemental Deed, or by
operation of law there is a reduction in the extent of the Issuer Trustee's
indemnification out of the Assets of the Trust, as a result of the Issuer
Trustee's fraud, negligence or breach of trust.
(d) It is acknowledged that the Global Trust Manager, the
Servicer, the Currency Swap Provider, the Interest Rate Swap Provider, the Note
Trustee, the principal Paying Agent, the other Paying Agents and the Agent Bank,
(each, a "Relevant Party") are responsible under the Basic Documents for
performing a variety of obligations relating to the Trust. No act or omission of
the Issuer Trustee (including any related failure to satisfy its obligations and
any breach of representations and warranties under this Agreement) will be
considered fraudulent, negligent or a breach of trust for the purpose of section
18(c) to the extent to which the act or omission was caused or contributed to by
any failure by any Relevant Party or any other person who provides services in
respect of the Trust to fulfil its obligations relating to the Trust or by any
other act or omission of a Relevant Party or any other such person regardless of
whether the act or omission is purported to be on behalf of the Issuer Trustee.
(e) No attorney, agent, receiver or receiver and manager
appointed in accordance with this Agreement has authority to act on behalf of
the Issuer Trustee in a way that exposes the Issuer Trustee to any liability in
excess of that contemplated in this Section 18, and no act or omission of any
such person will be considered fraud, negligence or breach of trust of the
Issuer Trustee.
(f) The Issuer Trustee is not obliged to do anything or
refrain from doing anything under or in connection with this Agreement
(including incur a liability) unless the Issuer Trustee's liability is limited
in the same manner as set out in this Section 18.
19. 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.
19
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return the enclosed counterparts hereof
Very truly yours,
NATIONAL BANK AUSTRALIA LIMITED
By:
-------------------------------
Name:
Title:
HOMESIDE GLOBAL MBS MANAGER, INC.
By:
-------------------------------
Name:
Title:
PERPETUAL TRUSTEE COMPANY LIMITED
in its capacity as Issuer Trustee of
the HomeSide Mortgage Securities
Trust 2001-1
By:
-------------------------------
Name:
Title:
Accepted: January ___, 2001
DEUTSCHE BANC ALEX. BROWN INC.
Acting on behalf of itself and the
several Underwriters listed in
Schedule 1 hereto.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount of
Notes (US$)
-------------------
<S> <C>
1. Deutsche Banc Alex. Brown Inc. $ 529,500,000
2. J.P. Morgan Securities Inc. $ 264,750,000
3. National Australia Bank Limited (London Branch) $ 264,750,000
---------------
Total $ 1,059,000,000
===============
</TABLE>
<PAGE>
SCHEDULE II
ASSOCIATES OF THE NATIONAL PARTIES
20. NATIONAL AUSTRALIA BANK GROUP COMPANIES
<TABLE>
<S><C>
National Australia Bank Limited
National Equities Limited
National Wealth Management Holdings Limited
National Australia Financial Management Limited
National Asset Management Limited
National Australia Financial Planning Pty Limited
National Australia Fund Management Limited
National Australia Management Services Pty. Ltd.
National Australia Superannuation Pty. Ltd.
NAFM Investments Pty. Ltd.
County Investment Management Limited
National Australia Group (NZ) Limited
BNZ International Australia Limited
BNZ Securities Australia Limited
Partown Pty Limited
Bank of New Zealand Inc in NZ
BNZ Finance Limited Inc in NZ
BNZ Funding Limited Inc in NZ
BNZ International (Hong Kong) Limited Inc in Hong Kong
BNZ Investments Limited Inc in NZ
BNZ Equipment Limited Inc in NZ
BNZ International Limited Inc in NZ
Amber Liquid Investments Limited Inc in Cayman Islands
BNZ Corporation Limited Inc in NZ
BNZ Investment Management Limited Inc in NZ
BNZ Life Insurance Limited Inc in NZ
BNZ Nominees Limited Inc in NZ
BNZI Securities (No 1) Limited Inc in NZ
BNZI Securities (No 2) Limited Inc in NZ
22
<PAGE>
BNZ Property Investments Limited Inc in NZ
BNZ Branch Properties Limited Inc in NZ
BNZ Properties (Auckland) Limited Inc in NZ
BNZ Properties Limited Inc in NZ
Flamingo Holdings Incorporated Inc in NZ
Iraklis Eleven Limited Inc in NZ
Interchange and Settlement Limited Inc in NZ
Chase Manhattan Bank of New York (Trustee of Trusts)
Chase Manhattan Bank of Delaware (Trustee of Trusts)
National Australia Ltd Inc in NZ
Maroro Leasing Limited Inc in NZ
New Zealand Card Services Limited Inc in NZ
Quill Financing Limited Inc in NZ
Peterel Financing Limited Inc in NZ
Custom Fleet (NZ ) Limited Inc in NZ
Screen Holdings Ltd Inc in NZ
Screen Holdings No 2 Limited Inc in NZ
BNZ Capital Guaranteed Growth Fund Limited Inc in NZ
BANK OF NEW ZEALAND ASSOCIATED COMPANIES
Electronic Transaction Services Ltd Inc in NZ
Loyalty New Zealand Limited Inc in NZ
Mondex New Zealand Limited Inc in NZ
National Australia Group Europe PHC Limited
National Australia Group Europe Limited
Clydesdale Bank PLC (Group) Inc in Scotland
CB House Purchase Limited Inc in Scotland
CB Nominees Limited Inc in Scotland
CB Shelfco No. 1 Limited (In liquidation) Inc in Scotland
CB Trustee Nominees Limited Inc in Scotland
Clydesdale Bank Custodian Nominees LimitedInc in Scotland
Clydesdale Bank Equity Limited
Clydesdale Bank Pension Trustee Limited Inc in Scotland
23
<PAGE>
Clydesdale Europe Finance Limited Inc in Jersey (UK tax resident)
CGF No. 3 Limited Inc in Scotland
CGF No. 6 Limited Inc in Scotland
CGF No. 9 Limited Inc in Scotland
CGF No. 12 Limited Inc in Scotland
Clydesdale Bank Insurance Brokers Limited Inc in Scotland
Clydesdale Bank (Head Office) Nominees Ltd Inc in Scotland
Clydesdale Bank (London) Nominees Limited Inc in Scotland
Clydesdale Bank (Piccadilly) Nominees Limited Inc in Scotland
North of Scotland Bank Limited Inc in Scotland
Warren Collections Limited Inc in Scotland
Clydesdale Bank Asset Finance Limited Inc in Scotland
National Australia Group Europe Investments Ltd Inc in Scotland
NAGEO B.V. Inc in Netherlands (UK tax resident)
National Australia Group Europe Finance B.V. Inc in Netherlands (UK tax resident)
National Americas Investment, Inc. Inc in USA
National Americas Holdings Ltd Inc in England
Michigan National Corporation Inc in USA
Independence One Capital Management Corporation Inc in USA
Independence One Life Insurance Company Inc in USA
Michigan National Bank
Executive Relocation Corporation Inc in USA
General Audit Systems, Inc Inc in USA
Independence One Brokerage Services, Inc. Inc in USA
Independence One Mortgage Corporation Inc in USA
Meridian Investments, Inc. Inc in USA
RIMCO XIV, Inc. Inc in USA
IWPB, Inc. Inc in USA
IRESC, Inc. Inc in USA - (Inactive)
Michigan National Bank Community Development Corporation Inc in USA
MNB Leasing Corporation Inc in USA
MNB Interactive Services, Inc. Inc in USA
24
<PAGE>
MNB Mondex Originator, Inc. Inc in USA
MNB Smartcard Technologies, Inc. Inc in USA
MNC Operations and Services, Inc. - (Inactive) Inc in USA
MNC Financing Trust No. 1.Inc in USA
NAB Distribution Trust
Michigan National Insurance Services, Inc. Inc in USA
MN Finance, L.L.C. Inc in USA
OTHER INVESTMENT INTERESTS OF MICHIGAN NATIONAL BANK
Financial Title, L.L.C. Inc in USA
Rock Home Loans at Michigan National, L.L.C. Inc in USA
NYCE Corporation (formerly Magic Line, Inc)
Bloomfield Hills Bancorp, Inc.
The Bank of Bloomfield Hills
HomeSide Investment, Inc. Inc in USA
HomeSide International, Inc. Inc in USA
HomeSide Lending, Inc. Inc in USA
CFC, Inc. Inc in USA
SWD Properties, Inc. Inc in USA
HMC Financial, Inc. Inc in USA
HomeSide Mortgage Securities, Inc. Inc in USA
Stockton Plaza, Inc. Inc in USA
HSL Realty Tax Services Corporation Inc in USA
HomeSide Funding Corporation Inc in USA
HomeSide Solutions, Inc. Inc in USA
Think or Swim, LLC Inc in USA
Angara Limited Inc in Hong Kong
Angara (Chater) Limited Partnership (Hong Kong Limited partnership)
Angara (Pedder) Limited Partnership (Hong Kong Limited partnership)
Ariodante Limited (English Company - to be incorporated in the next few weeks)
PFA Limited (Cayman Islands Company - to be incorporated in the next few weeks)
National Australia Finance (Commercial Leasing) Limited Inc in England
25
<PAGE>
National Australia Finance (Equipment Leasing) Limited Inc in England
National Australia Finance (Industrial Leasing) Limited Inc in England
National Australia Finance (Leasing) Limited Inc in England
National Australia Group CIF Trustee Ltd Inc in England
National Australia Group SSP Trustee Ltd Inc in England
National Australia UK Pension Trustee Ltd Inc in England
National Europe Holdings Limited Inc in England
National Europe Holdings (Ireland) Limited Inc in England
National Europe Holdings (GB) Limited Inc in England
National Europe Holdings (Wealth Management) Limited Inc in England
National Australia Group Europe Services Ltd Inc in Scotland
National Australia Group Europe Services Ltd- Irish Branch Inc in Scotland
National Australia Life Company Ltd Inc in England
National Australia Life Services Ltd Inc in England
National Australia Trust Management Ltd Inc in England
National Irish Holdings Ltd Inc in England
Amber Liquid (UK) Investments Limited Inc in England
NAB Finance (Ireland) Ltd Inc in Ireland
Clydesdale Trustee & Custodial Services (Ireland) Ltd Inc in Ireland
Clydesdale Corporate Investment Services (Ireland) Ltd Inc in Ireland
Clydesdale Ireland Securities Nominees Limited Inc in Ireland
National Irish Bank Limited Inc in Ireland
National Irish Bank Limited - Isle of Man Branch Inc in Ireland
Collinstown Property Holding Co Ltd Inc in Ireland
Forward Trust (Ireland) Ltd. Inc in Ireland
National Australia Group SSP (ROI) Trustee Ltd Inc in Ireland
National Irish Bank Financial Services Ltd. Inc in Ireland
National Irish Bank Leasing Ltd. Inc in Ireland
National Irish Bank Nominees Ltd. Inc in Ireland
National Irish Bank Pensions Ltd. Inc in Ireland
Angelsea Assets Ltd Inc in Ireland
National Irish Bank Trust Company Ltd. Inc in Ireland
26
<PAGE>
National Irish Investment Bank Ltd.Inc in Ireland
National Irish Investment Bank Nominees Ltd. Inc in Ireland
National Irish Investment Bank Pensions Ltd. Inc in Ireland
Norfin Investments Ltd. Inc in Ireland
Northern Bank Ltd. Inc in N Ireland
Northern Bank Limited - Dublin Branch Inc in N Ireland
Northern Bank Limited - Isle of Man Branch Inc in N Ireland
Northern Bank Executor & Trustee Co. Ltd. Inc in N Ireland
Northern Bank Factors Ltd. Inc in N Ireland
Northern Bank Financial Services Ltd. Inc in N Ireland
Northern Bank Development Corporation Ltd. Inc in N Ireland
Nordev Properties Ltd. Inc in N Ireland
Project Development (Balmoral) Ltd. Inc in N Ireland
Northern Bank (I.O.M.) Ltd Inc in Isle of Man
Northern Bank Trust Company (I.O.M.) Ltd.
(Inc in Isle of Man)
NAM Nominees Limited Inc in Isle of Man
Northern Asset Finance Ltd. Inc in N Ireland
Causeway Credit Ltd. Inc in N Ireland
Northern Bank Commercial Leasing Ltd.
Inc in N Ireland
Northern Bank Equipment Leasing Ltd.
Inc in N Ireland
Northern Bank Industrial Leasing Ltd.
Inc in N Ireland
Northern Bank Insurance Services Ltd. Inc in N Ireland
Northern Bank Nominees Ltd. Inc in N Ireland
Northern Bank Pension Trust Ltd. Inc in N Ireland
National Australia Savings Limited Inc in England
Yorkshire Bank PLC Inc in England
Allerton House Properties Limited Inc in England
North British Finance Group Ltd. Inc in England
Custom Fleet Limited Inc in England
Homeside Lending Ltd. Inc in England
EVR Limited Inc in England
Fairhalsen Collections Ltd. Inc in England
Yorkshire Bank Retail Services Ltd. Inc in England
Storecard Ltd. Inc in England
Eden Vehicle Rentals Ltd. Inc in England
Yorkshire Bank Finance Ltd. Inc in England
Yorkshire International Finance B.V. Inc in Netherlands
Yorkshire Bank Financial Services Ltd. Inc in England
Northern and General Finance Ltd. Inc in England
27
<PAGE>
Yorkshire Bank Equipment Leasing Ltd. Inc in England
Yorkshire Bank Commercial Leasing Ltd Inc in England
YB Lease Ltd. Inc in England
Yorlease Ltd Inc in England
Mora Property Development Co Limited Inc in N Ireland
Kensington Hotel (Belfast) Limited Inc in N Ireland
Yorkshire Bank Home Loans Ltd. Inc in England
Yorkshire Bank Investments Ltd. Inc in England
Yorbank Nominees Ltd. Inc in England
Yorkshire Bank Nominees Ltd. Inc in England
Brunswick Collection Services Ltd Inc in England
Camden Hurst Hotel Limited. Inc in England
YB Trust Company Ltd. Inc in England
National Australia Group Services Limited
Custom Lease Pty. Limited (in liquidation)
Custom Service Leasing Limited
Canudos Limited
Dinant Limited
Exchange Hiring Limited
Hegira Limited
Laura Pty. Limited
Lavallette Pty. Limited
Layang Pty. Limited
Nosciter Limited
NSW Housing No. 1 Pty. Limited
Omnibus Leasing (1978) Limited
Rail Leasing Limited
River Boyne Pty. Limited
River Embley Pty. Limited
Roma Street Limited
Webb Dock No. 5 Container Terminal Limited
Zermatt Limited
NBA Properties Limited
CBC Holdings Limited
CBC Properties Limited
NBA Properties (Qld.) Limited
NBA Properties (Vic.) Limited
CSPL Securities Pty Limited
National Australia Merchant Bank (Singapore) Limited Inc in Singapore
Nautilus Insurance Pte. Ltd. Inc in Singapore
National Australia Finance (Asia) Limited Inc in Hong Kong
Vilexton Pty Limited
Freeonline.com
28
<PAGE>
ARDB Limited
Australian Banks' Export Re-finance Corporation Limited
Custom Credit Holdings Limited (In liquidation)
Custom Credit Corporation Limited (In liquidation)
Carrington Confirmers Pty. Limited (In liquidation)
Australian Market Automated Quotation (Ausmaq) System Limited
Ausmaq (NZ) Limited Inc in New Zealand
C.B.C. Investments Limited
C.B.C. Investments Services Limited
Commercial Nominees Pty. Limited
Erstfeld Pty Limited
First National Limited (In liquidation)
First National Finance Limited (In liquidation)
National Australia Corporate Advisory Limited
National Australia Corporate Services Limited
National Australia Funding (Delaware) Inc. Inc in USA
National Australia Investment Capital Limited
Australian Geographic Pty Ltd
In Matrix Holdings Pty Ltd
Sanford Limited
ISIS Interiors Pty Limited
Razorback Vehicle Corporation Limited
GS Private Equity Fund 1 (Less than 15%)
Maxitrans Ltd (Less than 15%)
National Australia Investment Brokers Limited
National Australia Leasing (Qld.) Pty. Limited
National Australia Limited (In liquidation)
National Australia Managers Limited
National Australia Securities Limited
Australian Equity Corporation Limited (In liquidation)
National Australia Trustees Limited
Bourke Street Nominees Pty. Limited
National Australia Underwriters Limited
NAF Trustee Limited
NAB Investments Limited
National Infrastructure Investment No.1 Pty Ltd
National Infrastructure Investment No.2 Pty Ltd
National Infrastructure Investment No.3 Pty Ltd
National Nominees Limited
National Nominees (London) Limited
NBA Leasing Pty. Limited
Relationship Services Pty Limited
VPL Securities Pty Limited
29
<PAGE>
DAPR No.1 Pty Limited
National Capital Guaranteed Fund Limited
National Markets Group Limited
Polymar No.1 Pty Limited
HICAPS Pty Limited
Alice Corporation Pty Ltd
Groundsel Limited
National Australia Capital Securities (UK) PLC Inc in United Kingdom
National Australia Securities (Jersey) Limited Inc in Jersey
National Australia Capital Markets, LLC Inc in USA
NAB Capital LLC Inc in USA
DC One Pty Ltd
DC Two Pty Ltd
BOACT Pty Ltd
Matrix Film Investment One Pty Limited
Matrix Film Investment Two Pty Limited
HomeSide Lending Australia Limited
NMS Nominees Pty Ltd
National Margin Services Pty Ltd
National OnLine Trading Limited
National OnLine Trading Nominees Pty Ltd
Guidestar Financial Limited Inc in England
Guidestar Financial Group Limited Inc in Hong Kong
Fleet Systems Pty. Limited
O2-e Limited
Kiboodle Limited
Kiboodle Australia Pty Limited
Kiboodle UK Limited
Kiboodle NZ Limited
Peakhour Pty Limited (not wholly owned)
Peakhour Australia Holdings Pty Limited (not wholly owned)
ARB Corporation Limited
Gunns Limited
Heat Exchangers Limited
TDG Logistics Limited
Bankers Trust Company (in its capacity as joint trustee of the Joey Trust)
Bankers Trust Delaware (in its capacity as joint trustee of the Joey Trust)
Livingstone Investments Pty Ltd (in its capacity as trustee of the Chloral Unit Trust No.1)
Coogee Chemical Pty Ltd (in its capacity as joint trustee of the Chloral Unit Trust No.2)
Nufarm Australia Limited (in its capacity as joint trustee of the Chloral Unit Trust No.2)
Pinnacle Holdings NZ Ltd
(NB The following companies are probably incorporated in USA.)
30
<PAGE>
Chase Manhattan Bank of New York (in its capacity as joint trustee of the
Madison Park Unit Trust)
Chase Manhattan Bank of Delaware (in its capacity as joint trustee of the Madison Park Unit Trust)
Chase Manhattan Bank of New York (in its capacity as trustee of the General Re Fixed Trust)
Chase Manhattan Bank of New York (in its capacity as joint trustee of the Income No.1 Trust)
Chase Manhattan Bank of New York (in its capacity as joint trustee of the Income
Trust No.1 Trust)
21. MLC Group companies and trusts
MLC Holdings Limited (ACN 003 113 068)
Your Prosperity Limited (ACN 077 305 652)
TRUSTEE AND MANAGER OF YOUR PROSPERITY SUPERANNUATION FUND
MLC Management Limited (ACN 071 514 264)
MLC Investments Limited (ACN 002 641 661)
TRUSTEE OF MLC MASTERKEY UNIT TRUST
TRUSTEE OF MLC MASTERKEY CASH MANAGEMENT TRUST
TRUSTEE OF LEND LEASE INVESTMENT TRUST
TRUSTEE OF MLC INVESTMENT TRUST
TRUSTEE AND MANAGER OF MLC ADF
MLC Limited (ACN 000 000 402)
ThreeSixty Limited (ACN 087 180 416)
Godfrey Pembroke Financial Services Limited (ACN 003 059 541)
Godfrey Pembroke Limited (ACN 002 336 254)
Firs&T Pty Limited (ACN 003 960 174)
Heritage Management Limited (ACN 057 647 533)
CUSTODIAN OF ONESOURCE CUSTODY SERVICE
TRUSTEE AND MANAGER OF THE HML SUPERANNUATION FUND
Plum Financial Services Limited (ACN 081 812 731)
PLUMFS Limited (ACN 082 991 795)
PFS Nominees Pty Ltd (ACN 082 026 480)
FlexiPlan Australia Limited (ACN 056 678 427)
TRUSTEE OF FLEXIINVESTMENT FUND
TRUSTEE OF FLEXIPLAN AUSTRALIA MASTER PLAN FLEXI ROLLOVER FUND
TRUSTEE OF FLEXIPLAN AUSTRALIA MASTER PLAN FLEXISUPER FUND
Medfin Australia Pty Limited (ACN 070 811 148)
MLC Properties Pty Limited (ACN 003 806 442)
TRUSTEE OF MLC PROPERTY INVESTMENT TRUST
TRUSTEE OF MLC INTERNATIONAL PROPERTY INVESTMENT TRUST
MLC Nominees Pty Ltd (ACN 002 814 959)
TRUSTEE OF MLC STAFF SHARE SCHEME
CUSTODIAN TO NORTHERN TERRITORY CONDITIONS OF SERVICE TRUST
TRUSTEE OF THE UNIVERSAL SUPER SCHEME
MLC Coal Investment Pty Limited (ACN 060 305 044)
Tun Charoen Co Limited (incorporated in Thailand)
31
<PAGE>
Advance Assurance Limited (incorporated in Thailand)
Fortuitous Assets Ltd (incorporated in the British Virgin Islands)
Sophisticated Assets Ltd (incorporated in the British Virgin Islands)
Eight Star Group Ltd (incorporated in the British Virgin Islands)
Stable Markets Holdings Ltd (incorporated in the British Virgin Islands)
CEF Lend Lease Insurance Holdings (Bermuda) Limited (incorporated in Bermuda)
CEF Lend Lease Life Assurance Limited (incorporated in Hong Kong)
CEF Lend Lease Trustees Limited (incorporated in Hong Kong)
TRUSTEE OF CEF LEND LEASE STAFF PROVIDENT FUND
TRUSTEE OF CEF LEND LEASE AGENT PROVIDENT FUND
TRUSTEE OF CEF MASTER PROVIDENT FUND
PT Simas Lend Lease Life (incorporated in Indonesia)
Messenia Pty Limited (ACN 050 539 921)
Lend Lease Financial Planning Limited (ACN 056 426 932)
MLC Lifetime Company Limited (ACN 000 000 420)
Australian Eagle Nominees Pty Limited (ACN 055 780 991)
TRUSTEE OF AUSTRALIAN EAGLE PROPERTY TRUST
003 311 635 Pty Limited (ACN 003 311 635)
Whitechapel Investments Pty Ltd (ACN 000 498 420)
Blantyre Pty Ltd (ACN 008 183 640)
Cameron Close Pty Ltd (ACN 003 390 047)
008 031 427 Pty Ltd (ACN 008 031 427)
007 602 619 Pty Ltd (ACN 007 602 619)
Parkland Villas Pty Ltd (ACN 002 508 581)
CFG Nominees Pty Ltd (ACN 000 299 883)
The Figtrees Pty Ltd (ACN 002 816 551)
Capita Properties Pty Ltd (ACN 003 648 173)
TRUSTEE OF CAPITAL MASTER PROPERTY TRUST
Tropical Breeze, Inc (incorporated in the US)
TRUSTEE OF PUBLIC STORAGE AMERICAN TRUST
Australian Eagle Life Limited (ACN 055 638 572) (in voluntary liquidation)
MLC Computer Pty Limited (ACN 002 403 438)
MLC Advisor Holdings Pty Limited (ACN 080 713 444) (in voluntary liquidation)
Lend Lease Advisor Services Limited (ACN 002 071 749)
Lend Lease Corporate Services Limited (ACN 055 638 474)
Lend Lease Corporate Services Asia Pte Ltd (incorporated in Singapore)
PT BII Lend Lease Investment Services (incorporated in Indonesia)
</TABLE>
32
