U.S. $1,000,000,000
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 2 of 2005
U.S. $1,000,000,000 Class A-1
Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
----------------------
September 9, 2005
Barclays Capital Inc.,
as Representative of the several Underwriters
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. Perpetual Trustees Consolidated Limited (ABN 81 004 029
841), a limited liability public company under the Corporations Act of
Australia in its capacity as trustee of the Crusade Global Trust No. 2 of
2005 (the "ISSUER TRUSTEE") at the direction of Crusade Management Limited
(ABN 90 072 715 916), as manager (the "TRUST MANAGER") of Crusade Global
Trust No. 2 of 2005 (the "TRUST") proposes to sell to the several
Underwriters listed in Schedule A hereto (the "UNDERWRITERS"), for whom you
are acting as representative (the "REPRESENTATIVE"), U.S. $1,000,000,000
principal amount of Class A-1 Mortgage Backed Floating Rate Notes (the
"CLASS A-1 NOTES") issued by the Trust. The Trust will also at the same
time issue its A$600,000,000 Class A-2 Mortgage Backed Floating Rate Notes,
its A$25,500,000 Class B Mortgage Backed Floating Rate Notes and its
A$9,800,000 Class C Mortgage Backed Floating Rate Notes (collectively, the
"OTHER NOTES" and together with the Class A-1 Notes, the "NOTES"). Each
Note will be secured by the assets of the Trust. The assets of the Trust
include, among other things, a pool of variable and fixed rate residential
housing loans (the "HOUSING LOANS") originated or acquired by Xx.Xxxxxx
Bank Limited (ABN 92 055 513 070) ("XX.XXXXXX") including all monies at any
time paid or payable thereon or in respect thereof from, the close of
business on August 18, 2005 (the "CUT-OFF DATE") with respect to payments
of principal and after the Closing Date (as defined herein) with respect to
payments of interest, rights under certain insurance policies with respect
to the Housing Loans, the Collection Account and the rights of the Issuer
Trustee under the Basic Documents. The Trust was created pursuant to the
Master Trust Deed, dated March 14, 1998 (the "MASTER TRUST DEED"), Notice
of Creation of Trust, dated September 6, 2005 and a supplementary terms
notice, to be dated on or about September 13, 2005 (the "SUPPLEMENTARY
TERMS NOTICE"), each among the Issuer Trustee, Xx.Xxxxxx and the Trust
Manager, which sets forth specific provisions regarding the Trust and
details the provisions of the Notes. The Note Trust Deed, to be dated on or
about September 13, 2005 (the "NOTE TRUST DEED") by and among the Issuer
Trustee, the Trust Manager and The Bank of New York (the "NOTE TRUSTEE")
provides for the issuance and registration of the Class A-1 Notes in
accordance with the terms and conditions attached thereto. Xx.Xxxxxx will
act as seller and as servicer (the "SERVICER") of the Housing Loans. Each
of the Trust Manager and Xx.Xxxxxx are sometimes referred to as a
"XX.XXXXXX PARTY" and collectively are sometimes referred to herein as the
"XX.XXXXXX PARTIES."
The Trust Manager has prepared and filed with the Securities and
Exchange Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Class A-1 Notes. In addition,
the United States Securities Exchange Act of 1934, as amended, is herein
referred to as the "EXCHANGE ACT."
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement, the
Class A-1 Notes, the Security Trust Deed, the Note Trust Deed, the
Fixed-Floating Rate Swap, the Currency Swap, the Basis Swap and the Agency
Agreement. To the extent not defined herein, capitalized terms used herein have
the meanings assigned to such terms in the Prospectus (as defined hereinafter).
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
In this Agreement, a reference to any representation, warranty,
covenant undertaking or indemnity by Xx.Xxxxxx or the Trust Manager shall be
construed such that a clear distinction exists between Xx.Xxxxxx and the Trust
Manager in respect of any obligations in accordance with Australian Prudential
Regulatory Authority AGN 120.1.
Each Xx.Xxxxxx Party and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule A as follows:
2. Representations and Warranties of the Issuer Trustee and the Xx.Xxxxxx
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) Since the respective dates as of which information is provided in
the Registration Statement and the Prospectus (each as defined
herein), there has been no material adverse change or any development
involving a prospective material adverse change in the condition
(financial or otherwise) of the Issuer Trustee, except as disclosed in
the Prospectus, which is material in the context of the Issuer Trustee
performing its obligations and duties under the Class A-1 Notes and
each Basic Document to which it is or is to be a party.
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(b) The Issuer Trustee is a corporation duly incorporated and
existing under the laws of Australia; it is lawfully qualified and
holds all Authorisations (as defined in the Master Trust Deed)
necessary to carry on its business as described in the Prospectus and
to issue the Class A-1 Notes and to act as required by each Basic
Document to which it is or is to be a party and by law to comply with
any requirements which affect the operations or business of the Trust
or the Issuer Trustee's obligations under the Basic Documents to which
it is a party and no other thing is required to be done by the Issuer
Trustee (including without limitation the making of any filing or
registration) in order to issue the Class A-1 Notes or to execute and
act as required by each Basic Document to which it is to be a party.
(c) This Agreement has been duly authorized, executed and delivered
by the Issuer Trustee.
(d) The Class A-1 Notes have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, will have been duly
executed, issued and delivered and will constitute valid and binding
obligations of the Issuer Trustee, entitled to the benefits provided
by the Note Trust Deed and the Security Trust Deed, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors' rights generally and to
general equitable principles. Each of the Basic Documents to which the
Issuer Trustee is a party have been duly authorized by the Issuer
Trustee, and, when executed and delivered by the Issuer Trustee and
each of the other parties thereto, will constitute a legal, valid and
binding obligation of the Issuer Trustee, enforceable against the
Issuer Trustee 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.
(e) The Issuer Trustee is not, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Issuer Trustee
is a party or by which it or any of its properties is bound, except in
the case of (ii) for violations and defaults which individually and in
the aggregate would not have a material adverse effect on the
transactions contemplated herein or in the Basic Documents; the issue
and sale of the Class A-1 Notes and the performance by the Issuer
Trustee of all of the provisions of its obligations under the Class
A-1 Notes, the Basic Documents and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any agreement or instrument to which the
Issuer Trustee is a party or by which the Issuer Trustee is bound or
to which any of the property or assets of the Trust is subject, nor
will any such action result in any violation of the provisions of the
Constitution of the Issuer Trustee or any applicable law or statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Issuer Trustee, or any of its
properties; and, to the knowledge of the Issuer Trustee, no consent,
approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required
for the
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issue and sale of the Class A-1 Notes or the consummation by the
Issuer Trustee of the transactions contemplated by this Agreement or
the Basic Documents, except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as may be required
under state securities or "Blue Sky" laws in connection with the
purchase and distribution of the Class A-1 Notes by the Underwriters.
(f) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Issuer Trustee,
threatened against or affecting the Issuer Trustee or the Trust, or to
which the Issuer Trustee is or may be a party or to which the Issuer
Trustee or any property of the Trust is or may be the subject, which
will have an impact on the transactions contemplated by this
Agreement.
(g) The representations and warranties of the Issuer Trustee
contained in the Basic Documents are true and correct in all material
respects.
(h) To the Issuer Trustee's knowledge, no event has occurred which
would entitle the Trust Manager to direct the Issuer Trustee to retire
as trustee of the Trust under clause 20 of the Master Trust Deed.
(i) The Issuer Trustee has not taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken or
legal proceedings been started or threatened against the Issuer
Trustee 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.
(j) Subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "TAX ACT") and compliance by the
Underwriters with Section 10(b) and 10(c) hereto, no stamp or other
duty is assessable or payable in, and no withholding or deduction for
any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction,
in connection with the authorization, execution or delivery of the
agreements to which the Issuer Trustee is to be a party or with the
authorization, execution, issue, sale or delivery of the Class A-1
Notes and the performance of the Issuer Trustee's obligations under
the Basic Documents, other than, in the case of stamp duty, following
a Title Perfection Event (as defined in the Master Trust Deed), to
which it is to be a party and payments under the Class A-1 Notes.
(k) The Class A-1 Notes and the obligations of the Issuer Trustee
under the Note Trust Deed will be secured (pursuant to the Security
Trust Deed) by a first floating charge over the assets of the Trust,
subject to the terms of the Security Trust Deed.
(l) No event has occurred or circumstances arisen which, had the Class
A-1 Notes already been issued, would (whether or not with the giving
of notice and/or the passage
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of time and/or the fulfillment of any other requirement) constitute an
Issuer Trustee's Default (as defined in the Prospectus).
II. Each Xx.Xxxxxx Party, as to itself only, represents and warrants to
each Underwriter and the Issuer Trustee that:
(a) The Trust Manager has filed a registration statement on Form
S-11 (No. 333-127015), including a form of preliminary prospectus, for
registration of the Class A-1 Notes under the Securities Act and has
filed such amendments thereto and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required.
Such registration statement in the form in which it first became
effective and as amended or supplemented thereafter (if applicable)
and the prospectus constituting a part thereof (including all
information deemed to be a part thereof pursuant to Rule 430A(b) of
the rules and regulations of the Commission under the Securities Act)
as amended or supplemented thereafter (if applicable) under the
Securities Act are herein referred to as the "REGISTRATION STATEMENT"
and the "PROSPECTUS", respectively, except that if any revised
prospectus shall be provided to you for use in connection with the
offering of the Class A-1 Notes which differs from the Prospectus on
file with the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b)), the term "PROSPECTUS" shall
refer to such revised prospectus from and after the time it is first
provided to you for such use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Trust Manager, threatened by the Commission. The Registration
Statement and Prospectus (as amended or supplemented if the 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 rules and regulations of the
Commission thereunder and the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission thereunder
(collectively, the "TRUST INDENTURE ACT") and do not and will not, as
of the applicable effective date of the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the
Closing Date will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Note Trustee under the Trust Indenture
Act and (ii) statements in or omissions from the Registration
Statement or the Prospectus based upon written information furnished
to the Trust Manager by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b).
5
(c) Except as described in the Prospectus, since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, there has been no material adverse change, nor any
development involving a prospective material adverse change, in the
condition (financial or other), business, properties, stockholders'
equity or results of operations of such Xx.Xxxxxx Party taken as a
whole.
(d) Such Xx.Xxxxxx Party is a corporation duly incorporated and
validly existing under the Corporations Act of the Commonwealth of
Australia as in effect at the date of this agreement; such Xx.Xxxxxx
Party has the power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and
to enter into and perform its obligations under this Agreement and the
Basic Documents to which it is a party and carry out the transactions
contemplated by such Basic Documents; such Xx.Xxxxxx Party has been
duly qualified or licensed for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require
such qualification or licensing, other than where the failure to be so
qualified or licensed or in good standing would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents.
(e) This Agreement has been duly authorized, executed and delivered
by such Xx.Xxxxxx Party.
(f) The Basic Documents to which such Xx.Xxxxxx Party is a party
have been duly authorized by such Xx.Xxxxxx Party, and upon
effectiveness of the Registration Statement, the Note Trust Deed will
have been duly qualified under the Trust Indenture Act and, when
executed and delivered by the Xx.Xxxxxx Party which is a party thereto
and each of the other parties thereto, each of the Basic Documents to
which such Xx.Xxxxxx Party is a party will constitute a legal, valid
and binding obligation of such Xx.Xxxxxx Party, enforceable against
such Xx.Xxxxxx Party in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors' rights generally and to
general equitable principles; and the Class A-1 Notes and the Basic
Documents each will conform to the descriptions thereof in the
Prospectus.
(g) Such Xx.Xxxxxx Party is not, and with the giving of notice, or
lapse of time or both would not be, in violation of or in default
under, (i) its Constitution or (ii) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is
a party or by which it or any of its properties is bound, except in
the case of (ii) for violations and defaults which individually and in
the aggregate would not have a material adverse effect on the
transactions contemplated herein or in the Basic Documents; the issue
and sale of the Class A-1 Notes and the performance by such Xx.Xxxxxx
Party of all of the provisions of its obligations under the Class A-1
Notes, the Basic Documents and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such
Xx.Xxxxxx Party is a party or by which such Xx.Xxxxxx Party is bound
or to which any of the property or assets of such Xx.Xxxxxx
6
Party is subject, nor will any such action result in any violation of
the provisions of the Constitution of such Xx.Xxxxxx Party or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over such
Xx.Xxxxxx Party, or any of its properties; and no consent, approval,
authorization, order, license, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Class A-1 Notes or the consummation by such
Xx.Xxxxxx Party of the transactions contemplated by this Agreement or
the Basic Documents, except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as have been
obtained under the Securities Act, the Trust Indenture Act and as may
be required under state securities or "Blue Sky" laws in connection
with the purchase and distribution of the Class A-1 Notes by the
Underwriters.
(h) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or,
to the knowledge of such Xx.Xxxxxx Party, threatened against or
affecting such Xx.Xxxxxx Party or its properties or, to which such
Xx.Xxxxxx Party is or may be a party or to which such Xx.Xxxxxx Party
or any property of such Xx.Xxxxxx Party is or may be the subject, in
each case, which will have an impact on the transactions contemplated
by this Agreement; and there are no statutes, regulations, contracts
or other documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as
required.
(i) The representations and warranties of such Xx.Xxxxxx Party
contained in the Basic Documents are true and correct in all material
respects.
(j) KPMG LLP are independent public accountants with respect to such
Xx.Xxxxxx Party within the meaning of the standards established by the
American Institute of Certified Public Accountants.
(k) Such Xx.Xxxxxx Party owns, possesses or has obtained all
Authorisations (as defined in the Master Trust Deed), licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or foreign,
necessary to perform its obligations under this Agreement and the
Basic Documents, and such Xx.Xxxxxx Party has not received any actual
notice of any proceeding relating to revocation or modification of any
such Authorisation, license, permit, certificate, consent, order,
approval or other authorization; and such Xx.Xxxxxx Party is in
compliance with all laws and regulations necessary for the performance
of its obligations under this Agreement and the Basic Documents.
(l) To the knowledge of such Xx.Xxxxxx Party, no event has occurred
which would entitle such Xx.Xxxxxx Party to direct the Issuer Trustee
to retire as trustee of the Trust under clause 20 of the Master Trust
Deed.
7
(m) Such Xx.Xxxxxx Party has not taken any corporate action nor (to
the best of its knowledge and belief) have any other steps been taken
or legal proceedings been started or threatened against such Xx.Xxxxxx
Party for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator,
provisional liquidator or similar officer of it or of any or all of
its assets.
(n) Subject to compliance with Section 128F of the Tax Act and
compliance by the Underwriters with Section 10(b) and 10(c) hereto, no
stamp or other duty is assessable or payable in, and no withholding or
deduction for any taxes, duties, assessments or governmental charges
of whatever nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction,
in connection with the authorization, execution or delivery of the
agreements to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Class A-1 Notes and the
performance of such Xx.Xxxxxx Party's obligations under the agreements
to which it is to be a party and the Class A-1 Notes.
(o) No event has occurred or circumstances arisen which, had the
Class A-1 Notes already been issued, would (whether or not with the
giving of notice and/or the passage of time and/or the fulfillment of
any other requirement) constitute a Manager's Default (as defined in
the Prospectus).
(p) Since August 23, 2005, there has been no material adverse change
or any development involving a prospective material adverse change in
the condition (financial or otherwise) of such Xx.Xxxxxx Party; and
(q) As of the Closing Date, Xx.Xxxxxx will have transferred to the
Issuer Trustee a valid equitable assignment of each related Housing
Loan offered for sale by it to the Issuer Trustee.
(r) Neither the Trust nor any Xx.Xxxxxx Party is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 3 of the
United States Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"); and neither of the Trust nor any Xx.Xxxxxx
Party is and, after giving effect to the offering and sale of the
Class A-1 Notes and the application of the proceeds thereof as
described in the Prospectus, will not be an "INVESTMENT COMPANY" as
defined in the Investment Company Act.
3. Purchase, Sale and Delivery of Class A-1 Notes. On the basis of the
representations, warranties and agreements contained herein, but subject to
the terms and conditions herein set forth, the Issuer Trustee, at the
direction of the Trust Manager, agrees to sell the Class A-1 Notes to the
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Issuer Trustee at a purchase price of 100% of the
principal amount of the Class A-1 Notes (which amount may be made net of
the commissions payable to the Underwriters or such commissions may be paid
to the Underwriters as a separate payment, as the Representative and the
Xx.Xxxxxx Parties shall agree) the respective principal amount of the
8
Class A-1 Notes set forth opposite the name of such Underwriter in Schedule
A hereto. In addition, the Underwriters shall severally and not jointly be
responsible for certain out-of-pocket expenses incurred by the Xx.Xxxxxx
Parties in connection with the offering of the Class A-1 Notes, as shall be
agreed to separately by the Underwriters and the Xx.Xxxxxx Parties (and
such expenses may include a portion of the related attorneys fees incurred
by the Xx.Xxxxxx Parties). Furthermore, if any Class A-1 Notes are offered
and sold by an Underwriter pursuant to Section 10(k) hereof, compliance
with Section 10(k) shall, in all cases, be at such Underwriter's sole
expense.
The Issuer Trustee will deliver against payment of the purchase price
the Class A-1 Notes in the form of one or more permanent Global Notes in
definitive form (the "GLOBAL NOTES") deposited with the Note Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Notes will be
held only in book-entry form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Class A-1 Notes shall be made by
the Underwriters in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to the Representative drawn to
the order of Barclays Bank PLC (the "Currency Swap Provider") at the office of
Mayer, Brown, Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later
than 10:00 A.M., New York City time, on September 15, 2005, or at such other
time not later than seven full business days thereafter as the Representative
and the Trust Manager determine, such time being herein referred to as the
"CLOSING DATE," against delivery to the Note Trustee as custodian for DTC of the
Global Notes representing all of the Class A-1 Notes. The Global Notes will be
made available for checking at the above office at least 24 hours prior to the
Closing Date.
4. Offering by Underwriters. The Xx.Xxxxxx Parties and the Issuer Trustee
understand that the several Underwriters propose to offer the Class A-1
Notes for sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Issuer Trustee and the Xx.Xxxxxx Parties.
I. Each Xx.Xxxxxx Party, in respect of itself only, covenants and agrees
with each of the several Underwriters as follows:
(a) The Trust Manager will file with the Commission pursuant to and
in accordance with Rule 430A and subparagraph (4) of Rule 424(b)
copies of an amended Prospectus containing all of the information
omitted from the Prospectus in reliance upon Rule 430A at the time the
Registration Statement became effective. The Trust Manager will advise
the Representative promptly of any such filing pursuant to Rule
424(b).
(b) The Trust Manager will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or
the related Prospectus and will not effect such amendment or
supplementation without the Representative's consent; and the Trust
Manager will also advise the Representative promptly of the
institution by the Commission of any stop order proceedings in respect
of the Registration Statement and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
9
(c) If, at any time when a prospectus relating to the Class A-1
Notes is required to be delivered under the Securities Act in
connection with sales by any Underwriter or dealer, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend the Prospectus to comply
with the Securities Act, the Trust Manager will promptly notify the
Representative of such event and will promptly prepare and file with
the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. Neither the Representative's consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, the Trust Manager will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the effective date of the
Registration Statement which will satisfy the provisions of Section
11(a) of the Securities Act.
(e) The Trust Manager will furnish to the Representative copies of
the Registration Statement and each amendment (3 of which will be
signed and will include all exhibits), each related preliminary
prospectus, and, so long as a prospectus relating to the Class A-1
Notes is required to be delivered under the Securities Act in
connection with sales by any Underwriter or dealer, the Prospectus and
all amendments and supplements to such documents, in each case in such
reasonable quantities as the Representative requests. The Prospectus
shall be so furnished on or prior to 3:00 P.M., New York time, on the
business day following the later of the execution and delivery of this
Agreement or the effective time of the Registration Statement. All
other documents shall be so furnished as soon as available. The Trust
Manager will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Trust Manager will arrange for the qualification of the
Class A-1 Notes for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the
Representative designates and will continue such qualifications in
effect so long as required for the distribution.
(g) So long as the Class A-1 Notes are outstanding, the Trust
Manager will furnish to the Representative (i) copies of each
certificate, the annual statements of compliance and the annual
independent certified public accountant's audit report on the
financial statements furnished to the Issuer Trustee or the Note
Trustee pursuant to the Basic Documents by first class mail as soon as
practicable after such statements and reports are furnished to the
Issuer Trustee or the Note Trustee, (ii) copies of each amendment to
any of the Basic Documents, (iii) on each Determination Date or as
soon thereafter as practicable, the Bond Factor as of the related
Record Date shall be available to the Representative on Bloomberg and
Reuters, (iv) copies of all reports or other communications (financial
or other) furnished to holders of the Class A-1 Notes, and copies of
any reports and financial statements furnished to or filed with the
Commission, any governmental or regulatory authority or any national
securities exchange, and (v)
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from time to time such other information concerning the Trust or the
Trust Manager as the Representative may reasonably request.
(h) To the extent, if any, that the ratings provided with respect to
the Class A-1 Notes by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other action by the Trust
Manager, the Trust Manager shall use its best efforts to furnish such
documents and take any other such action.
(i) The Trust Manager will assist the Representative in making
arrangements with DTC, Euroclear and Clearstream, Luxembourg
concerning the issue of the Class A-1 Notes and related matters.
(j) The Trust Manager will not take, or cause to be taken, any
action and will not knowingly permit any action to be taken which it
knows or has reason to believe would result in the Class A-1 Notes not
being assigned the ratings referred to in Section 6(n) below.
(k) Xx.Xxxxxx will pay all expenses incident to the performance of
the Xx.Xxxxxx Parties' obligations under this Agreement, for any
filing fees and other expenses (including fees and disbursements of
underwriters' counsel and issuers' counsel) incurred in connection
with qualification of the Class A-1 Notes for sale under the laws of
such jurisdictions as the Representative designates and the printing
of memoranda relating thereto, for any fees charged by the independent
accountants, for any fees charged by the rating agencies for the
rating of the Class A-1 Notes, for any travel expenses of any of the
Xx.Xxxxxx Parties' officers and employees and any other expenses of
either Xx.Xxxxxx Party in connection with attending or hosting
meetings with prospective purchasers of the Class A-1 Notes and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(l) Xx.Xxxxxx Bank will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and sale of the Class
A-1 Notes and on the execution and delivery of this Agreement. All
payments to be made by the Issuer Trustee and the Xx.Xxxxxx Parties
hereunder shall be made without withholding or deduction for or on
account of any present or future taxes, duties or governmental charges
whatsoever unless the Trust Manager is compelled by law to deduct or
withhold such taxes, duties or charges. In that event, the Trust
Manager 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.
(m) The Xx.Xxxxxx Party will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Securities Act
relating to asset-backed securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Representative for a period
beginning at the date of this Agreement and ending at the later of the
Closing Date or the lifting of trading restrictions by the
Representative.
11
(n) So long as the Class A-1 Notes are outstanding, the Trust
Manager will not be or become (nor permit the Trust to be or become),
an open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the
Issuer Trustee from the sale of the Class A-1 Notes pursuant to this
Agreement in the manner specified in the Prospectus under the caption
"Use of Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court
fees) in relation to the execution of, or any transaction carried out
pursuant to, the Basic Documents or in connection with the issue and
distribution of the Class A-1 Notes or the enforcement or delivery of
this Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred
to in Section 6 below and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents required to be executed by the
Issuer Trustee not executed on the date hereof on or before the
Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and
Clearstream, Luxembourg concerning the issue of the Class A-1 Notes
and related matters.
(d) The Issuer Trustee will procure or cause to be procured that the
charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate
registers.
(e) The Issuer Trustee will perform all its obligations under, and
subject to, each of the Basic Documents to which it is a party which
are required to be performed prior to or simultaneously with closing
on the Closing Date.
(f) The Issuer Trustee will not take, or cause to be taken, any
action and will not knowingly permit any action to be taken which it
knows or has reason to believe would result in the Class A-1 Notes not
being assigned the ratings referred to in Section 6(n) below.
(g) The Issuer Trustee will not prior to or on the Closing Date
amend the terms of any Basic Document to which it is a party nor
execute any of the Basic Documents to which it is a party other than
in the agreed form without the consent of the Representative.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Class A-1 Notes on the
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Xx.Xxxxxx Parties and the Issuer Trustee
herein, to the accuracy of the statements of officers of the Xx.Xxxxxx
Parties and the Issuer Trustee made pursuant to the provisions hereof, to
the performance of the Xx.Xxxxxx Parties and the Issuer Trustee of their
obligations hereunder and to the following additional conditions precedent:
12
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than 5:00 P.M., New York City time, on the date hereof or on
such later date to which you have consented; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission.
The Prospectus, including all price-related information previously
omitted from the prospectus which formed a part of the Registration
Statement at the time it became effective, in accordance with Rule
430A, shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in accordance with Section 5.1.(a) hereof; and prior to the
Closing Date the Trust Manager shall have provided evidence
satisfactory to the Representative of such timely filing, and all
requests for additional information shall have been complied with to
the satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of any of the
Xx.Xxxxxx Parties, the Issuer Trustee or any Swap Party and their
respective subsidiaries, in each case, taken as one enterprise, which,
in the judgment of a majority in interest of the Underwriters
including the Representative, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Class A-1 Notes; (ii) any
downgrading in the rating of any debt securities of any of the Trust
Manager, Xx.Xxxxxx, the Issuer Trustee or any Swap Party by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or
review its rating of the Class A-1 Notes or any debt securities of any
of the Trust Manager, Xx.Xxxxxx, the Issuer Trustee or any Swap Party
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in United States, Australian or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Underwriters, including the
Representative, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Class A-1 Notes, whether
in the primary market or in respect of dealings in the secondary
market; (iv) any material suspension or material limitation of trading
in securities generally on the New York Stock Exchange, the London
Stock Exchange or any other exchange on which the Class A-1 Notes are
listed, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of any of the Trust
Manager, Xx.Xxxxxx, the Issuer Trustee or any Swap Party on any
exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal, New York, London, England or Australian
authorities; (vi) any material disruption in the settlement or
clearance services of DTC, Euroclear or Clearstream; or (vii) any
outbreak or escalation of major hostilities or material act of
terrorism involving the United States, the United Kingdom or
Australia, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of
a
13
majority in interest of the Underwriters, including the
Representative, the effect of any such outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Class A-1 Notes.
(c) The Representative shall have received a certificate, dated the
Closing Date, of the managing director, director or any chief general
manager of each Xx.Xxxxxx Party and (as to paragraphs (i) and (ii)
below only) of an authorized officer of the Issuer Trustee in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that: (i) the representations and
warranties of such entity in this Agreement are true and correct; (ii)
such entity has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date; (iii) in the case of the Trust Manager, no
stop order suspending the effectiveness of any Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and (iv) subsequent
to the date of the most recent financial statements supplied by the
Xx.Xxxxxx Parties to the Underwriters or the Representative on behalf
of the Underwriters, there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of such entity and its subsidiaries taken as a
whole except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(d) Allens Xxxxxx Xxxxxxxx, Australian counsel for Xx.Xxxxxx, the
Trust Manager and the Servicer, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, a copy of which
opinion is attached hereto as Exhibit A.
(e) Allens Xxxxxx Xxxxxxxx, Australian tax counsel for Xx.Xxxxxx,
the Trust Manager and the Servicer, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, a copy of which
opinion is attached hereto as Exhibit B.
(f) The Representative shall have received two letters, one dated
the date hereof and one dated the Closing Date, of KPMG LLP confirming
that they are independent public accountants within the standards
established by the American Institute of Certified Public Accountants
and the meaning of the Securities Act and the applicable published
rules and regulations thereunder (the "RULES AND REGULATIONS") and
stating to the effect that they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other financial
information contained in the Registration Statement (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Xx.Xxxxxx Parties and their subsidiaries subject to the internal
controls of such parties' accounting system or are derived directly
from such records by analysis or computation or from the collateral
tape containing the description of the Housing Loans) with the results
obtained from inquiries,
14
a reading of such general accounting records and collateral tape and
other procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
(g) Mayer, Brown, Xxxx & Maw LLP, United States counsel for the
Xx.Xxxxxx Parties, shall have furnished to the Representative their
written opinion, dated the Closing Date, in form and substance
satisfactory to the Representative, a copy of which opinion is
attached hereto as Exhibit C.
(h) Mayer, Brown, Xxxx & Maw LLP, United States federal income tax
counsel for the Xx.Xxxxxx Parties, shall have furnished to the
Representative their written opinion, dated the Closing Date, to the
effect that, the statements contained in the Prospectus under the
heading "United States Federal Income Tax Matters", to the extent that
they constitute matters of federal law or legal conclusions with
respect thereto, while not purporting to discuss all possible
consequences of investment in the Class A-1 Notes, are correct in all
material respects with respect to those consequences or matters that
are discussed therein.
(i) Mayer, Brown, Xxxx & Maw LLP, United States counsel for the
Xx.Xxxxxx Parties, shall have furnished to the Representative a
supplemental letter, dated the Closing Date, to the effect that, no
information has come to such counsel's attention that causes such
counsel to believe that (A) the Registration Statement, as of the time
it became effective or as of such Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and (B) the Prospectus, as
of the date of the Prospectus or as of such Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; it being understood that such supplemental letter is
subject to all of the qualifications, assumptions and exceptions set
forth therein.
(j) Mallesons Xxxxxxx Xxxxxx, Australian counsel for the Issuer
Trustee, shall have furnished to the Representative their written
opinion, dated the Closing Date, in form and substance satisfactory to
the Representative, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters.
(k) White and Case LLP, counsel for the Note Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters.
(l) Counsel to the Currency Swap Provider shall have furnished to
the Representative and the Xx.Xxxxxx Parties their written opinions in
form and substance satisfactory to the Representative.
15
(m) XxXxx Xxxxxx LLP, special United States counsel to the
Representative and the Underwriters, shall have furnished to the
Representative their written opinion, dated the Closing Date, with
respect to the Registration Statement, the Prospectus and other related
matters as the Representative may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(n) The Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Representative to rely on such
opinion as if it were addressed to the Representative.
(o) At the Closing Date, the Class A-1 Notes shall have been rated
"AAA" by Standard & Poor's Ratings Group, A Division of The XxXxxx-Xxxx
Companies, Inc. ("STANDARD & POORS"), "Aaa" by Xxxxx'x Investors
Service, Inc. ("MOODY'S") and "AAA" by Fitch Australia Pty Ltd ("FITCH"
and together with Moody's and Standard & Poor's, the "RATING AGENCIES")
as evidenced by letters from the Rating Agencies.
(p) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(q) Each class of the Other Notes will have been validly issued by
the Issuer Trustee upon the directions of the Trust Manager and are
outstanding without any default thereon.
(r) On or prior to the Closing Date the Xx.Xxxxxx Parties and the
Issuer Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably
request.
(s) On or prior to the Closing Date, the Currency Swap Provider shall
have executed a verification certificate in a form reasonably
satisfactory to the Xx.Xxxxxx Parties, the Issuer Trustee and the
Representative.
7. Indemnification and Contribution.
(a) Each of Xx.Xxxxxx and the Trust Manager, severally, agrees to
indemnify and hold harmless each Underwriter and the Issuer Trustee,
its partners, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter or the Issuer Trustee may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or
alleged untrue statement of any material fact contained in the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein
16
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter or the Issuer Trustee in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither
Xx.Xxxxxx nor the Trust Manager will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to Xx.Xxxxxx
or the Trust Manager by (i) any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below or (ii) the
Currency Swap Provider, for inclusion in the Prospectus under the
heading "Description of the Notes--The Currency Swap
Provider--Barclays Bank PLC;" and provided, further, that with respect
to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus the indemnity
agreement contained in this paragraph (a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Class A-1 Notes
concerned, to the extent that a prospectus relating to such Class A-1
Notes was required to be delivered by such Underwriter under the
Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Underwriter results from the fact
that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Class A-1 Notes to such
person, a copy of the Prospectus if the Trust Manager had previously
furnished copies thereof to such Underwriter at least two Business
Days prior to the delivery of the related written confirmations
regarding the sale of such Class A-1 Notes to investors.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless Xx.Xxxxxx, the Issuer Trustee and the Trust Manager,
their respective partners, their respective directors and their
respective officers and each person, if any, who controls such company
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, claims, damages or
liabilities to which such company may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement or arise out of
or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of any material fact contained
in the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Trust Manager by such Underwriter through the
Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by Xx.Xxxxxx,
17
the Issuer Trustee or the Trust Manager in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of
each Underwriter: (i) the concession and reallowance percentages
appearing in the third paragraph under the caption "Plan of
Distribution" and (ii) the information contained in the seventh and
eighth paragraphs under the caption "Plan of Distribution"; provided,
however, that the Underwriters shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Trust
Manager's failure to perform its obligations under Section 5.I.(b) of
this Agreement.
(c) Promptly after receipt by an indemnified party under this
paragraph (c) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified
party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Xx.Xxxxxx Parties and
the Issuer Trustee on the one hand and the Underwriters on the other
from the offering of the Class A-1 Notes or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Xx.Xxxxxx Parties and the Issuer Trustee on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable
18
considerations. The relative benefits received by the Xx.Xxxxxx
Parties and the Issuer Trustee on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by
the Xx.Xxxxxx Parties and the Issuer Trustee bear to the total
underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Xx.Xxxxxx Parties and the
Issuer Trustee or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). In
addition, nothing in this Section 7 shall require any of the Xx.Xxxxxx
Parties or any Underwriter to contribute to the amount paid or payable
by any Xx.Xxxxxx Party or any Underwriter, as applicable, from any
losses, claims, damages or liabilities arising out of or based on
information contained in or omitted from the information set forth in
the Prospectus under the heading "Description of the Notes--The
Currency Swap Provider--Barclays Bank PLC." Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Class A-1 Notes underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of a Xx.Xxxxxx Party and the Issuer Trustee
under this Section shall be in addition to any liability which such
Xx.Xxxxxx Party and the Issuer Trustee may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Securities Act;
and the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each director of a Xx.Xxxxxx Party or the Issuer Trustee, to each
officer of a Xx.Xxxxxx Party or the Issuer Trustee who has signed the
Registration Statement and to each person, if any, who controls a
Xx.Xxxxxx Party or the Issuer Trustee within the meaning of the
Securities Act.
(f) To the extent that any payment of damages by Xx.Xxxxxx or the
Trust Manager pursuant to subsection 7(a) above is determined to be a
payment of damages pursuant to paragraph 15 of Guidance Note AGN
120.3- "Purchase and Supply of Assets (including Securities issued by
SPVs)", being a Guidance Note to Prudential Standard APS 120- "Funds
Management and Securitisation" or any successor thereto such payment
shall be
19
subject to the terms therein (or the terms of any equivalent provision
in any replacement of Prudential Standard APS 120).
(g) The remedies provided in this Section 7, are not exclusive and
shall not limit any rights or remedies which may otherwise by
available to any indemnified party at law or in equity.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Class A-1 Notes hereunder on the Closing Date
and the aggregate principal amount of Class A-1 Notes that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed
10% of the total principal amount of Class A-1 Notes that the Underwriters
are obligated to purchase on such Closing Date, the Representative may make
arrangements satisfactory to the Trust Manager for the purchase of such
Class A-1 Notes by other persons, including any of the Underwriters, but if
no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Class A-1 Notes that such
defaulting Underwriters agreed but failed to purchase on such Closing Date.
If any Underwriter or Underwriters so default and the aggregate principal
amount of Class A-1 Notes with respect to which such default or defaults
occur exceeds 10% of the total principal amount of Class A-1 Notes that the
Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to the Representative and the Trust Manager for
the purchase of such Class A-1 Notes by other persons are not made within
36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Trust
Manager, except as provided in Section 9. As used in this Agreement, the
term "UNDERWRITER" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
of the Xx.Xxxxxx Parties, the Issuer Trustee or their respective officers
and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Xx.Xxxxxx Parties, the Issuer Trustee or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Class A-1 Notes.
If this Agreement is terminated pursuant to Section 8 or if for any reason
the purchase of the Class A-1 Notes by the Underwriters is not consummated,
each Xx.Xxxxxx Party, severally in respect of itself, shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of such Xx.Xxxxxx Party, the
Issuer Trustee and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Class A-1 Notes have been purchased hereunder the
representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Class A-1
Notes by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv), (v), (vi)
or (vii) of Section 6(b), each Xx.Xxxxxx Party, severally, will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with
the offering of the Class A-1 Notes.
20
10. Selling Restrictions.
(a) No offering circular, prospectus or other disclosure document in
relation to any Class A-1 Notes has been lodged with the Australian Securities
and Investments Commission or the Australian Stock Exchange Limited. Each
Underwriter severally (but not jointly) represents and agrees that in connection
with the distribution of the Class A-1 Notes:
(1) it has not, directly or indirectly, offered for issue
or sale or invited applications for the issue of or for
offers to purchase nor has it sold, the Class A-1 Notes;
(2) it will not, directly or indirectly, offer for issue
or sale or invited applications for the issue of or for
offers to purchase nor will it sell the Class A-1 Notes; and
(3) it has not distributed and will not distribute any
draft, preliminary or definitive offering circular, or any
advertisement or other offering material,
in the Commonwealth of Australia, its territories or possessions
("AUSTRALIA") unless:
(I) the amount payable for the Class A-1 Notes on
acceptance of the offer by each offeree or invitee is
a minimum amount of A$500,000 (or its equivalent in
another currency) (disregarding amounts, if any, lent
by Crusade Management Pty Limited or other person
offering the Class A-1 Notes or any associate of them,
which will also include for this purpose the Issuer
Trustee) or the offer or invitation is otherwise an
offer or invitation for which no disclosure is
required to be made under Part 6D.2 of the
Corporations Xxx 0000 (Cth) (the "CORPORATIONS ACT")
as then in effect and the Corporations Regulations
made under the Corporations Act as then in effect; and
(II) the offer, invitation or distribution complies with
all applicable laws, regulations and directives in
relation to the offer, invitation or distribution and
does not require any document to be lodged with the
Australian Securities and Investments Commission or
the Australian Stock Exchange Limited.
(b) Each Underwriter severally (but not jointly) agrees that, in
connection with the primary distribution of the Class A-1 Notes, it will not
sell any Class A-1 Notes to any person if, at the time of such sale, the
employees of the Underwriter aware of, or involved in, the sale actually knows
(but without an obligation on such Underwriter to make any inquiry) or has
reasonable grounds to suspect, that as a result of such sale, such Class A-1
Notes or any interest in such Class A-1 Notes were being, or would later be
acquired (directly or indirectly) by an Offshore Associate of the Issuer Trustee
(other than in the capacity of a dealer, manager or underwriter in relation to a
placement of the Class A-1 Notes or in the capacity of a clearing house,
custodian, funds manager or responsible entity of an Australian scheme).
21
For purposes of this Section 10 an "OFFSHORE ASSOCIATE" of the Issuer Trustee
means an "associate" within the meaning of Section 128F of the Tax Act
(including for this purpose, any associates of Crusade Management Limited as a
beneficiary of the Trust) that is either:
(1) a non resident of Australia that does not acquire the
Class A-1 Notes in carrying on business at or through a
permanent establishment in Australia; or
(2) a resident of Australia that acquires the Class A-1
Notes in carrying on a business at or through a permanent
establishment outside Australia.
Notwithstanding the foregoing, for purposes of this Section 10, an Underwriter
will be considered to have actual knowledge or reasonable grounds to suspect
that an entity is an Offshore Associate of the Issuer Trustee only if that
entity is identified on the lists that are to be provided to the Representative
by the Issuer Trustee and Xx.Xxxxxx Bank (collectively, the "LIST").
(c) Each Underwriter (severally, not jointly) agrees that it must
offer the Class A-1 Notes for which it subscribes for sale within 30 days of the
issue of those Class A-1 Notes. Such offer must only be by one of the following
means (or a combination thereof):
(1) as a result of negotiations being initiated by the
underwriter in electronic form on Reuters or the Bloomberg
System or any other electronic financial information system
which is used by financial markets for dealing in notes such
as the Class A-1 Notes, specifying in such offer the name of
the issuer, the name of the issuer trust, the maturity date
of the Class A-1 Notes, the principal amount of the Class
A-1 Notes and the price at which the Class A-1 Notes are
offered for sale; or
(2) to at least 10 persons each of whom was carrying on a
business of providing finance, or investing or dealing in
securities, in the course of operating in financial markets
who was not actually known (but without an obligation on
such Underwriter to make any inquiry) or reasonably
suspected by the employees of each Underwriter acting in
relation to the sale to be an associate (as defined in
Section 128F of the Tax Act) of any other person covered by
this sub-paragraph (2); or
(3) to at least 100 persons who it would be reasonable to
regard as either having acquired instruments similar to the
Class A-1 Notes in the past or as likely to be interested in
acquiring Class A-1 Notes.
(d) Each Underwriter (severally, not jointly) agrees that it will
provide the Issuer Trustee (within five Business Days of the offer of such Class
A-1 Notes by it) a written statement which sets out the details of the relevant
offer.
(e) Each Underwriter (severally, not jointly) agrees to co-operate
with reasonable requests from the Issuer Trustee for information for the
purposes of assisting the Issuer Trustee
22
to demonstrate that the public offer test under Section 128F of the Tax Act has
been satisfied, provided that no Underwriter shall be obliged to disclose:
(1) the identity of the purchaser of any Class A-1 Note,
(2) any information from which such identity might/would
be capable of being ascertained,
(3) any information the disclosure of which would be
contrary to or prohibited by any relevant law, regulation or
directive, or
(4) any information or documentation after a period of 4
years from the lodgment of the income tax return by the
Issuer Trustee for the financial year ending 30 September
2005.
(f) Each Underwriter (severally and not jointly) agrees that:
(i) it has not offered or sold and will not offer or sell
any Class A-1 Notes to persons in the United Kingdom
except to persons which have not resulted and will not
result in an offer to the public in the United Kingdom
within the meaning of the Financial Services and
Markets Xxx 0000 (the "FSMA");
(ii) it has complied with and will comply with all
applicable provisions of the FSMA with respect to
anything done by it in relation to the Class A-1 Notes
in, from or otherwise involving the United Kingdom;
and
(iii) it has only communicated or caused to be communicated,
and will only communicate or cause to be communicated,
an invitation or inducement to engage in investment
activity (within the meaning of section 21 of the
FSMA) received by it in connection with the issue or
sale of such Class A-1 Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the Issuer
Trustee.
(g) Each Underwriter (severally and not jointly) has represented,
warranted and agreed that it has complied with and will comply with all
applicable provisions of the Irish Companies Acts 1963 to 2005, the Investment
Intermediaries Act, 1995 (as amended) including, without limitation, Sections 9
and 50 and will conduct itself in accordance with any Code of Conduct drawn up
pursuant to Section 37 with respect to anything done by it in relation to the
Class A-1 Notes.
(h) Each Underwriter (severally and not jointly) acknowledges that
(1) the Prospectus has not been and will not be registered as a prospectus with
the Monetary Authority of Singapore and (2) the Class A-1 Notes will be issued
pursuant to exemptions invoked under the Securities and Futures Act, Chapter 289
of Singapore (the "SECURITIES AND FUTURES ACT"). Accordingly, each Underwriter
(severally and not jointly) represents and agrees that neither the Prospectus
nor any other document or material in connection with the offer or sale, or
invitation for subscription or purchase of the Class A-1 Notes will be
distributed or circulated by it nor will the Class A-1
23
Notes be offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly in Singapore other than
to (i) persons in Singapore under circumstances in which any offer, sale or
invitation of Class A-1 Notes does not constitute an offer, sale or invitation
to the public in Singapore; or (ii) the public or any member of the public in
Singapore pursuant to, and in accordance with the conditions of, an exemption
invoked under Sub-division (4) of Division 1 of Part XIII of or other applicable
provision of the Securities and Futures Act and to persons to whom any Class A-1
Notes may be offered or sold under any such exemptions.
(i) Each Underwriter (severally and not jointly) agrees that:
(1) it has not offered or sold and will not offer or sell
in Hong Kong, by means of any document, any Class A-1 Notes
other than:
(A) to persons whose ordinary business it is to buy
or sell shares or debentures (whether as principal or agent)
or to "professional investors" as defined in the Securities
and Futures Ordinance (Cap. 571) of Hong Kong and any rules
made under that Ordinance; or
(B) in other circumstances which do not result in
the document being a "prospectus" as defined in the
Companies Ordinance (Cap. 32) of Hong Kong or which do not
constitute an offer to the public within the meaning of the
Ordinance; and
(2) it has not issued or had in its possession for the
purposes of issue and will not issue or have in its
possession for the purpose of issue, whether in Hong Kong or
elsewhere, any advertisement, invitation or document
relating to the Class A-1 Notes which is directed at, or the
contents of which are likely to be accessed or read by, the
public of Hong Kong (except if permitted to do so under the
securities laws of Hong Kong) other than with respect to
Class A-1 Notes which are or are intended to be disposed of
only to persons outside Hong Kong or only to "professional
investors" as defined in the Securities and Futures
Ordinance (Cap. 571) of Hong Kong and any rules made
thereunder.
(j) Each underwriter (severally and not jointly) agrees that the
Class A-1 Notes may not be offered, sold or distributed in the Kingdom of Spain
save in accordance with the requirements of the Spanish Securities Market Law of
28 July 1988 (Ley24/1988, de 00 Xxxxx, xxx Xxxxxxx xx Xxxxxxx) as amended and
restated, and Royal Decree 291/1992, of 27 March, on Issues and Public Offerings
of Securities (Real Decreto 291/1992, de 27 de marzo, sobre Emisiones y Ofertas
Publicas de Venta de Valores) as amended and restated and the decrees and
regulations made thereunder. Neither the Class A-1 Notes nor the Prospectus have
been verified or registered in the administrative registries of the Spanish
Securities Markets Commission (Comision Nacional del Maercado de Valores).
Accordingly, the Class A-1 Notes may not be sold, offered or distributed in
Spain except in circumstances which do not constitute a public offer of
securities in Spain within the meaning of the Spanish Securities Market Law and
further relevant legislation or without complying with all legal and regulatory
requirements in relation thereto.
24
(k) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any Xx.Xxxxxx Party that any
action has been or will be taken in any jurisdiction outside the United States
by the Issuer Trustee or any Underwriter that would permit a public offering of
the Class A-1 Notes, or possession or distribution of the Prospectus or any
other offering material, in any country or jurisdiction where action for that
purpose is required. Each underwriter (severally and not jointly) agrees that:
the distribution of the Prospectus and the offering and sale of the Class A-1
Notes in certain other foreign jurisdictions may be restricted by law. The Class
A-1 Notes may not be offered or sold, directly or indirectly, and neither this
Prospectus nor any form of application, advertisement or other offering material
may be issued, distributed or published in any country or jurisdiction, unless
permitted under all applicable laws and regulations. Each underwriter agrees
(severally and not jointly) to comply with all applicable securities laws and
regulations in each jurisdiction in which it purchases, offers, sells or
delivers Class A-1 Notes or possesses or distributes the Prospectus or any other
offering material.
11. Certain Matters Relating to the Issuer Trustee. 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 or the Trust is limited to and can be enforced against the Issuer
Trustee only to the extent to which it can be satisfied out of assets and
property of the Trust which are available to satisfy the right of the
Issuer Trustee to be exonerated or indemnified for such liability. This
limitation of the Issuer Trustee's liability applies despite any other
provisions of this Agreement 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 or the Trust.
The parties other than the Issuer Trustee may not xxx the Issuer
Trustee in any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust Deed) or a
liquidator, an administrator or any other similar person to the Issuer Trustee
or prove in any liquidation, administration or arrangements of or affecting the
Issuer Trustee.
The provisions of this Section 11 shall not apply to any obligation or
liability of the Issuer Trustee to the extent that it is not satisfied because
under a Basic Document or by operation of law there is a reduction in the extent
of the Issuer Trustee's indemnification or exoneration out of the assets of the
Trust as a result of the Issuer Trustee's fraud, negligence or Default (as
defined in the Master Trust Deed).
It is acknowledged that the Trust Manager, the Approved Seller, the
Servicer, the Custodian, the Currency Swap Provider, the Redraw Facility
Provider, the Swap Providers, the Note Trustee, the Principal Paying Agent, the
other Paying Agents, the Note Registrar, the Calculation Agent, and the Agent
Bank (each, a "RELEVANT PARTY") are responsible under the Transaction Documents
(as defined in the Master Trust Deed) for performing a variety of obligations
relating to the Trust. No act or omission of the Issuer Trustee (including any
related failure to satisfy its obligations under the Transaction Documents) will
be considered fraud, negligence or Default (as defined in the Master Trust
Agreement) of the Issuer Trustee for the purpose of this Agreement to the extent
to which the act or omission was caused or contributed
25
to by any failure by any Relevant Party or any other person who has been
delegated or appointed by the Issuer Trustee in accordance with the Transaction
Documents (as defined in the Master Trust Deed) to fulfill its obligations
relating to the Trust or by any other act or omission of a Relevant Party or by
any other such person.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process; Satisfaction of Obligations in United States Dollars.
Each of the Xx.Xxxxxx Parties and the Issuer Trustee hereby submits to
the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Each of the
Xx.Xxxxxx Parties and the Issuer Trustee irrevocably appoints CT Corporation,
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
in the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service of process upon
such agent, and written notice of said service to it by the person serving the
same to the address provided in Section 16, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
Xx.Xxxxxx Parties and the Issuer Trustee further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for so long as the Class A-1 Notes remain
outstanding.
The obligation of any of the Xx.Xxxxxx 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 Xx.Xxxxxx Parties and the Issuer Trustee agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss.
13. Foreign Taxes. All payments to be made by the Issuer Trustee and any
Xx.Xxxxxx Party hereunder shall be made without withholding or deduction
for or on account of any present or future taxes, duties or governmental
charges whatsoever unless the Issuer Trustee or such Xx.Xxxxxx Party, as
applicable, is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Issuer Trustee or such Xx.Xxxxxx 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.
14. Waiver of Immunities. To the extent that any of the Issuer Trustee and
Xx.Xxxxxx 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
26
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 Xx.Xxxxxx Parties, as
applicable, hereby irrevocably and unconditionally waives, and agrees not
to plead or claim, any such immunity and consents to such relief and
enforcement.
15. Judgment Currency. If any judgment or order in any legal proceeding
against any of the Issuer Trustee and the Xx.Xxxxxx Parties is given or
made for any amount due hereunder and such judgment or order is expressed
and paid in a currency (the "JUDGMENT CURRENCY") other than United States
dollars and there is any variation as between (i) the rate of exchange (the
"JUDGMENT RATE") at which the United States dollar amount is converted into
Judgment Currency for the purpose of such judgment or order, and (ii) the
rate of exchange (the "MARKET RATE") at which the person to whom such
amounts is paid (the "PAYEE") is able to purchase United States dollars
with the amount of the Judgment Currency actually received by the holder,
then the difference, expressed in United States dollars, between such
amount calculated at the Judgment Rate and such amount calculated at the
Market Rate shall be indemnified (a) if negative by the Issuer Trustee and
the Xx.Xxxxxx Parties, as applicable, to the Payee and (b) if positive by
the Payee to the Issuer Trustee and the Xx.Xxxxxx Parties, as applicable.
The foregoing indemnity shall constitute a separate and independent
obligation of the Issuer Trustee, the Trust Manager and Xx.Xxxxxx or the
Payee, as the case may be, and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "RATE OR
EXCHANGE" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
16. Absence of Fiduciary Relationship. Xx.Xxxxxx, the Issuer Trustee and
the Trust Manager each acknowledge and agree that the Underwriters are
acting solely in the capacity of an arm's length contractual counterparty
to each of Xx.Xxxxxx, the Issuer Trustee and the Trust Manager with respect
to the offering of the Class A-1 Notes contemplated hereby (including in
connection with determining the terms of the offering) and not as a
financial advisor or a fiduciary to, or an agent of, Xx.Xxxxxx, the Issuer
Trustee, the Trust Manager or any other person. Additionally, neither the
Representative nor any other Underwriter is advising Xx.Xxxxxx, the Issuer
Trustee, the Trust Manager or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. Each of
St.Xxxxxx, the Issuer Trustee and the Trust Manager shall consult with its
own respective advisors concerning such matters and shall be responsible
for making their own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to Xx.Xxxxxx, the Issuer Trustee or the Trust
Manager with respect thereto. Any review by the Underwriters of Xx.Xxxxxx,
the Issuer Trustee or the Trust Manager, the transactions contemplated
hereby or other matters relating to such transactions will be performed
solely for the benefit of the Underwriters and shall not be on behalf of
Xx.Xxxxxx, the Issuer Trustee and the Trust Manager.
17. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Associate General Counsel; if sent to the Trust Manager will be
mailed, delivered or telegraphed and confirmed to the Trust Manager at c/o
Company Secretary, xxxxx 0, 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx XXX 0000
27
(Facsimile No. 612-9236-1899), Attention: Manager Securitisation if sent to
the Issuer Trustee, mailed, delivered or telegraphed and confirmed to the
Issuer Trustee at Xxxxx 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx
0000 (Facsimile No. 612-9221-7870), Attention: Manager, Securitisation; and
if sent to Xx.Xxxxxx, mailed, delivered or telegraphed and confirmed to
Xx.Xxxxxx at Xxxxx 0, 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx XXX 0000 (Facsimile
No. 612-9236-1899), Attention: Manager Securitisation; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
18. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no
other person will have any right or obligation hereunder.
19. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representative will be binding upon all
the Underwriters.
20. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
21. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
28
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return the enclosed counterparts
hereof, whereupon it will become a binding agreement between the parties listed
below in accordance with its terms.
Very truly yours,
CRUSADE MANAGEMENT LIMITED
By:
--------------------------------
Name:
Title:
29
PERPETUAL TRUSTEES
CONSOLIDATED LIMITED
By:
---------------------------------
Name:
Title:
30
XX.XXXXXX BANK LIMITED
By:
-------------------------------
Name:
Title:
31
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the day
first above written
BARCLAYS CAPITAL INC.,
acting on behalf of itself as the Representative
of the several Underwriters
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
32
SCHEDULE A
----------
PRINCIPAL AMOUNT OF CLASS A-1
Underwriter NOTES TO BE PURCHASED
------------------------------------------- -------------------------------
Barclays Capital Inc. US$500,000,000
X.X. Xxxxxx Securities Inc. US$500,000,000
Total US$1,000,000,000
33
CRUSADE GLOBAL TRUST NO 2 OF 2005
Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: September 15, 2005
Barclays Capital Inc.
as Representative of the several Underwriters,
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
I hereby certify that, to the best of my knowledge after reasonable
investigation:
(i) the representations and warranties of Perpetual Trustees
Consolidated Limited, in its capacity as trustee of the Crusade
Global Trust No. 2 of 2005 (the "Issuer Trustee"), in the
Underwriting Agreement dated September 9, 2005 among Barclays
Capital Inc., as representative (the "Representative") of the
Underwriters listed in Schedule A to that agreement (the
"Underwriters"), Crusade Management Limited, the Issuer Trustee
and Xx.Xxxxxx Bank Limited (the "Underwriting Agreement") are true
and correct; and
(ii) the Issuer Trustee has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under the
Underwriting Agreement.
By:
------------------------------------
Name:
Title:
34
