U.S. $1,050,000,000
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 1 OF 2003
U.S. $1,050,000,000 Class A
Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
----------------------
March _, 2003
X.X. Xxxxxx Securities Inc.
As Representative of the Several Underwriters,
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 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. 1 of 2003 (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. 1 of 2003 (the
"TRUST") proposes to sell to the several Underwriters listed in Schedule I
hereto (the "UNDERWRITERS"), for whom you are acting as representative (the
"Representative"), U.S.$1,050,000,000 principal amount of Class A Mortgage
Backed Floating Rate Notes (the "CLASS A NOTES" or the "NOTES") issued by the
Trust. 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, March 5, 2003 (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 will be
created pursuant to the Master Trust Deed, dated March 14, 1998 (the "MASTER
TRUST DEED") and a supplementary terms notice, to be dated on or about March __,
2003 (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 March __, 2003 (the "NOTE TRUST DEED") by and among the Issuer
Trustee, the Trust Manager and Wilmington Trust Company (the "NOTE TRUSTEE")
provides for the issuance and registration of the 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. The Trust Manager and Xx.Xxxxxx
are each a "XX.XXXXXX PARTY" and collectively are 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 Notes.
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement, the
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.
The Xx.Xxxxxx Parties and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule I 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 ______, 2003, 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 Notes and
each Basic Document to which it is or is to be a party.
(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 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 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 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
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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
Notes and the performance by the Issuer Trustee of all of the provisions
of its obligations under the 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 issue and sale of the Notes or the consummation by the
Issuer Trustee of the transactions contemplated by this Agreement or the
Basic Documents, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as may be required under state
securities or "Blue Sky" laws in connection with the purchase and
distribution of the 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.
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(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
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, to which it is to be a party and payments under the
Notes, except for nominal stamp duty payable in Queensland on the initial
transfer of the housing loans.
(k) The Notes and the obligations of the Issuer Trustee under the Note
Trust Deed will be secured (pursuant to the Security Trust Deed) by a
first floating charge over the assets of the Trust, subject to the terms
of the Security Trust Deed.
(l) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other
requirement) constitute an Issuer Trustee's Default (as defined in the
Prospectus).
II. The Xx.Xxxxxx parties, jointly and severally, represent and warrant to each
Underwriter and the Issuer Trustee that:
(a) The Trust Manager has filed a registration statement on Form S-11
(No. 333-102083), including a form of preliminary prospectus, for
registration of the Notes under the Securities Act and has filed such
amendments thereto and will file such additional amendments thereto and
such amended prospectuses as may hereafter be required. Such registration
statement in the form in which it first became effective and as amended
or supplemented thereafter (if applicable) and the prospectus
constituting a part thereof (including all information deemed to be a
part thereof pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the Securities Act) as amended or supplemented
thereafter (if applicable) under the Securities Act are herein referred
to as the "REGISTRATION STATEMENT" and the "PROSPECTUS", respectively,
except that if any
4
revised prospectus shall be provided to you for use in connection with
the offering of the Notes which differs from the Prospectus on file with
the Commission at the time the Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed pursuant
to Rule 424(b)), the term "PROSPECTUS" shall refer to such revised
prospectus from and after the time it is first provided to you for such
use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the 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, (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) and (iii) statements in or omissions from the Registration
Statement or the Prospectus based upon information furnished to the Trust
Manager by the Currency Swap Provider specifically for use therein, it
being understood and agreed that the only such information is that
provided under the heading "Description of the Class A Notes-The Currency
Swap-AIG Financial Products Corp. and American International Group, Inc."
(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 any Xx.Xxxxxx Party taken as a whole.
(d) Each 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; each 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; each
5
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
each of the Xx.Xxxxxx Parties.
(f) The Basic Documents to which any Xx.Xxxxxx party is a party have been
duly authorized by the applicable 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 each Xx.Xxxxxx Party which is a party thereto and each of the other
parties thereto, each of the Basic Documents to which any Xx.Xxxxxx Party
is a party will constitute a legal, valid and binding obligation of each
such Xx.Xxxxxx Party, enforceable against each 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 Notes and
the Basic Documents each will conform to the descriptions thereof in the
Prospectus.
(g) Neither Xx.Xxxxxx Party is, nor with the giving of notice, or lapse
of time or both would be, in violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it or any of its properties is bound, except in the case of (ii)
for violations and defaults which individually and in the aggregate would
not have a material adverse effect on the transactions contemplated
herein or in the Basic Documents; the issue and sale of the Notes and the
performance by each Xx.Xxxxxx Party of all of the provisions of its
obligations under the 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 either
Xx.Xxxxxx Party is a party or by which either Xx.Xxxxxx Party is bound or
to which any of the property or assets of either Xx.Xxxxxx Party is
subject, nor will any such action result in any violation of the
provisions of the Constitution of either 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 either 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
Notes or the consummation by either 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 Notes by the
Underwriters.
6
(h) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or, to
the knowledge of either Xx.Xxxxxx Party, threatened against or affecting
either Xx.Xxxxxx Party or its properties or, to which either Xx.Xxxxxx
Party is or may be a party or to which either Xx.Xxxxxx Party or any
property of either 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 each 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 each
Xx.Xxxxxx Party within the meaning of the standards established by the
American Institute of Certified Public Accountants.
(k) Each 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 neither Xx.Xxxxxx Party
has 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 each 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 any Xx.Xxxxxx Party, no event has occurred which
would entitle either Xx.Xxxxxx Party to direct the Issuer Trustee to
retire as trustee of the Trust under clause 20 of the Master Trust Deed.
(m) Neither Xx.Xxxxxx Party has 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 either 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, 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,
7
execution, issue, sale or delivery of the Notes and the performance of
either Xx.Xxxxxx Parties' obligations under the agreements to which it is
to be a party and the Notes.
(o) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other
requirement) constitute a Manager's Default (as defined in the
Prospectus).
(p) Since February __, 2003 there has been no material adverse change or
any development involving a prospective material adverse change in the
condition (financial or otherwise) of either of the Xx.Xxxxxx Parties;
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.
3. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements contained herein, but subject to the terms and
conditions herein set forth, the Issuer Trustee, at the direction of the Trust
Manager, agrees to sell the Notes to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Issuer Trustee at a
purchase price of _______% of the principal amount of the Class A Notes (which
amount shall be net of the commissions payable to the Underwriters) the
respective principal amount of the Notes set forth opposite the names of the
Underwriters in Schedule A hereto.
The Issuer Trustee will deliver against payment of the purchase price the
Notes in the form of one or more permanent Global Notes in definitive form (the
"GLOBAL NOTES") deposited with the Note Trustee as custodian for The Depository
Trust Company (the "DTC") and registered in the name of Cede & Co., as nominee
for DTC. Interests in any permanent Global Notes will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Notes shall be made by the Underwriters in Federal
(same day) funds by official bank check or checks or wire transfer to an account
at a bank acceptable to X.X. Xxxxxx Securities Inc. ("JPMORGAN") drawn to the
order of the AIG Financial Products Corp. (the "Currency Swap Provider") at the
office of Mayer, Brown, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not
later than 10:00 A.M., New York City time, on _______, 2003, or at such other
time not later than seven full business days thereafter as JPMorgan 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 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 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. The Xx.Xxxxxx Parties, jointly and severally, covenant and agree with each of
the several Underwriters as follows:
8
(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.
(c) If, at any time when a prospectus relating to the Notes is required
to be delivered under the Securities Act in connection with sales by any
Underwriter or dealer, 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 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 JPMorgan
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 Notes for
sale and the determination of their eligibility for investment under the
laws of such jurisdictions as
9
JPMorgan designates and will continue such qualifications in effect so
long as required for the distribution.
(g) So long as the 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 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) 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
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 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 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 Notes for sale under the laws of such jurisdictions as JPMorgan
designates and the printing of memoranda relating thereto, for any fees
charged by the independent accountants, for any fees charged by the
rating agencies for the rating of the Notes, for any travel expenses of
any of the 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 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 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
10
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) Neither Xx.Xxxxxx Party will 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.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the Issuer
Trustee from the sale of the Notes pursuant to this Agreement in the
manner specified in the Prospectus under the caption "Use of Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court
fees) in relation to the execution of, or any transaction carried out
pursuant to, the Basic Documents or in connection with the issue and
distribution of the Notes or the enforcement or delivery of this
Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred to
in Section 6 below and, in particular (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 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 Notes not being assigned the
ratings referred to in Section 6(n) below.
11
(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 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:
(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 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 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 material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, the
London Stock Exchange or any other exchange on which the Notes are
listed, or 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
12
Party on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal, New York, London, England or
Australia authorities; or (v) any outbreak or escalation of major
hostilities in which the United States, London, England or Australia is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representative,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Notes.
(c) The Representative shall have received a certificate, dated 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 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
13
controls of such parties' accounting system or are derived directly from
such records by analysis or computation or from the collateral tape
containing the description of the Housing Loans) with the results
obtained from inquiries, a reading of such general accounting records and
collateral tape and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise specified in such
letter.
(g) Mayer, Brown, Xxxx & Maw, United States counsel for the Xx.Xxxxxx
Parties and the Issuer Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form and
substance satisfactory to the Representative, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters, to the effect that:
(1) The Note Trust Deed has been duly qualified under the Trust
Indenture Act;
(2) To such counsel's knowledge, there are no material contracts,
indentures, or other documents of a character required to be
described or referred to under either the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto;
(3) The Trust is not and, after giving effect to the offering and
sale of the Notes and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company"
as defined in the Investment Company Act of 1940;
(4) No consent, approval, authorization or order of, or filing
with, any governmental agency located in the United States or body
or any court located in the United States is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Notes by the Issuer
Trustee, except such as have been obtained and made under the
Securities Act and the Trust Indenture Act and such as may be
required under state securities laws;
(5) The Registration Statement was filed and was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus either was filed with
the Commission pursuant to subparagraph (4) of Rule 424(b) on the
date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act, and the Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates, complied
as to form in all material respects with the requirements of the
Securities Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that any part
of the Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
14
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of
such Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions in
the Registration Statement and Prospectus of statutes, legal and
governmental proceedings are accurate and fairly present the
information required to be shown: it being understood that such
counsel need express no opinion as to the financial statements or
other financial data contained in the Registration Statement or
the Prospectus;
(6) The statements in the Prospectus under the Captions
"Description of the Class A Notes" and "Description of the
Transaction Documents", insofar as they purport to summarize
certain terms of the Notes and the applicable Basic Documents,
constitute a fair summary of the provisions purported to be
summarized; and
(7) This Agreement represents a legal valid and binding obligation
of each of Xx.Xxxxxx, the Trust Manager and the Issuer Trustee.
(h) Mayer, Brown, Xxxx & Maw, United States federal income tax counsel
for the Xx.Xxxxxx Parties and the Issuer Trustee, shall have furnished to
the Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, a copy of which opinion
is attached hereto as Exhibit C.
(i) 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, a copy of which opinion is attached hereto as Exhibit D.
(j) White & 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, a copy of which is
attached hereto as Exhibit E.
(k) Counsel to the Currency Swap Provider shall have furnished to the
Representative and the Xx.Xxxxxx Parties their written opinion in form
and substance satisfactory to the Representative, a copy of which will be
attached hereto as Exhibit F.
(l) The Representative shall have received a letter or letters from each
counsel delivering any written opinion to any Rating Agency in connection
with the transaction described herein which is not otherwise described in
this Agreement allowing the Representative to rely on such opinion as if
it were addressed to the Representative.
(m) At the Closing Date, the Class A Notes shall have been rated "AAA" by
Standard & Poor's Ratings Group, A Division of The XxXxxx-Xxxx Companies,
Inc. ("Standard
15
and Poors") and Fitch Ratings ("Fitch") and "Aaa" by Xxxxx'x Investors
Service, Inc. ("Moody's" and together with Standard and Poor's and Fitch,
the "Rating Agencies") as evidenced by letters from the Rating Agencies.
(n) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(o) 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.
7. Indemnification and Contribution.
(a) Each of Xx.Xxxxxx and the Trust Manager, jointly and severally,
agrees to indemnify and hold harmless each Underwriter and the Issuer
Trustee, its partners, directors and officers and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter or the Issuer Trustee may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter or
the Issuer Trustee in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that neither 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 Class A Notes--The
Currency Swap--AIG Financial Products Corp. and American International
Group, Inc."; 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 Notes concerned, to the extent that a prospectus relating
to such Notes was required to be delivered by such Underwriter under
16
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 Notes to such person, a copy of the
Prospectus if the Trust Manager had previously furnished copies thereof
to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless Xx.Xxxxxx, the Issuer Trustee and the Trust Manager, its
partners, its directors and officers and each person, if any, who
controls such company within the meaning of Section 15 of the Securities
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, 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 figures appearing in the third
paragraph under the caption "Plan of Distribution" and (ii) the
information contained in the [sixth] and seventh paragraphs under the
caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this Section (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
17
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 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 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). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
18
(e) The obligations of the Xx.Xxxxxx Parties and the Issuer Trustee under
this Section shall be in addition to any liability which the Xx.Xxxxxx
Parties and the Issuer Trustee may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Securities Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the
Xx.Xxxxxx Parties or the Issuer Trustee, to each officer of the Xx.Xxxxxx
Parties or the Issuer Trustee who has signed the Registration Statement
and to each person, if any, who controls the Xx.Xxxxxx Parties or the
Issuer Trustee within the meaning of the Securities Act.
(f) To the extent that any payment of damages by Xx.Xxxxxx pursuant to
subsection 7(a) above is determined to be a payment of damages pursuant
to "Guidance Note AGN 120.3 - Purchase and Supply of Assets (including
Securities Issued by SPVs)" such payment shall be subject to the
conditions specified in Paragraph 15 therein.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase Notes hereunder on the Closing Date and the aggregate
principal amount of Notes that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of Notes that the Underwriters are obligated to purchase on such Closing Date,
the Representative may make arrangements satisfactory to the Trust Manager for
the purchase of such Notes by other persons, including any of the Underwriters,
but if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Notes that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of Notes with respect
to which such default or defaults occur exceeds 10% of the total principal
amount of Notes that the Underwriters are obligated to purchase on such Closing
Date and arrangements satisfactory to the Representative and the Trust Manager
for the purchase of such Notes by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the 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 Notes. If this Agreement is terminated pursuant to Section 8 or if for
any reason the purchase of the Notes by the Underwriters is not consummated, the
Xx.Xxxxxx Parties, jointly and severally, shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Xx.Xxxxxx Parties, the Issuer Trustee and the Underwriters
pursuant to Section 7 shall remain in effect, and if any Notes have been
purchased hereunder the
19
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Notes by the Underwriters is
not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 6(b), the Xx.Xxxxxx Parties, jointly and
severally, will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Notes.
10. Selling Restrictions.
(a) No offering circular, prospectus or other disclosure document in
relation to any Notes has been lodged with the Australian Securities and
Investments Commission or the Australian Stock Exchange Limited. Each
Underwriter severally (but not jointly) represents and agrees that it:
(1) has not, directly or indirectly, offered for issue or sale or
invited applications for the issue of or for offers to purchase
nor has it sold, the Notes;
(2) will not, directly or indirectly, offer for issue or sale or
invited applications for the issue of or for offers to purchase
nor will it sell the Notes; and
(3) has not distributed and will not distribute any draft,
preliminary or definitive offering circular, or any advertisement
or other offering material,
in the Commonwealth of Australia, its territories or possessions ("AUSTRALIA")
or to any person who is actually known by the Underwriter (without an obligation
on the Underwriter to make any inquiry) to be resident of Australia for the
purposes of Section 128F of the Income Tax Assessment Act unless:
(1) the amount payable for the Class A Notes on acceptance of the
offer by each offeree or invitee is a minimum amount of A$500,000
(or its equivalent in another currency) (disregarding amounts, if
any, lent by Crusade Management Pty Limited or other person
offering the Notes or any associate of them) 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 Act as then in effect and the Corporations
Regulations made under the Corporations Act as then in effect;
(2) the offer, invitation or distribution complies with all
applicable laws, regulations and directives in relation to the
offer, invitation or distribution and does not require any
document to be lodged with the Australian Securities and
Investments Commission; and
(3) the Class A Notes will not be acquired by an associate of
Crusade Management Pty Limited (which includes associates of the
Issuer Trustee and Xx.Xxxxxx Bank) within the meaning of section
128F of the Income Tax Assessment Act (other than in the capacity
of a dealer, manager or underwriter in relation to a placement of
the Class A Notes) as identified on a list provided by Xx.Xxxxxx
Bank (the "LIST").
20
(b) Each Underwriter severally (but not jointly) agrees that, in
connection with the primary distribution of the Notes, it will not sell
any Notes to any person if, at the time of such sale, the employees of
the Underwriter aware of, or involved in, the sale knows, or has
reasonable grounds to suspect that, as a result of such sale, such Notes
or any interest in such Notes were being, or would later be acquired
(directly or indirectly) by an associate of the Issuer Trustee and
Crusade Management Pty Limited for the purposes of section 128F of the
Income Tax Assessment Act.
(c) Each Underwriter agrees that it must offer the Notes for which it
subscribes for sale within 30 days of the issue of those Notes. Such
offer must only be by one of the following means (or a combination
thereof);
(1) as a result of negotiations being initiated by the underwriter
in electronic form on Reuters or the electronic information system
made available to its subscribers by Bloomberg, L.P., specifying
in such offer the name of the issuer and the price at which the
Notes are offered for sale; or
(2) by the Underwriter offering those Notes for sale to at least
10 persons, each of whom must be (i) carrying on a business of
providing finance, or investing or dealing in securities, in the
course of operating in the financial markets; and (ii) not known
to be an associate of any of the others (within the meaning of
section 128F of the Income Tax Assessment Act).
Each Underwriter will provide the Issuer Trustee (within five Business Days of
the offer of such Notes by it) a written statement which sets out the details of
the relevant offer.
Each Underwriter (severally, not jointly) agrees to co-operate with reasonable
requests from the Issuer Trustee for information for the purposes of assisting
the Issuer Trustee to demonstrate that the public offer test under section 128F
of the Tax Act has been satisfied, provided that no Underwriter shall be obliged
to disclose the identity of the purchaser of any Note or any information from
which such identity might/would be capable of being ascertained, or any
information the disclosure of which would be contrary to or prohibited by any
relevant law, regulation or directive.
(d) 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 Notes, or possession or distribution of the
Prospectus or any other offering material, in any country or jurisdiction
where action for that purpose is required. Each Underwriter (severally
and not jointly) will comply with all applicable securities laws and
regulations in each jurisdiction in which it purchases, offers, sells or
delivers Notes or has in its possession or distributes the Prospectus or
any other offering material, in all cases at its own expense.
(e) Each Underwriter (severally and not jointly) agrees that:
(i) it has only offered or sold and will only offer or sell
any Notes in or from the United Kingdom: (a) to persons
whose ordinary activities involve
21
them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of
their businesses; or (b) to persons who it is reasonable to
expect will acquire, hold, manage or dispose of investments
(as principal or agent) for the purposes of their
businesses; or (c) otherwise in circumstances that did not
and will not constitute an offer to the public under the
Public Offers of Securities Regulations 1995 (as amended);
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Xxx 0000
("FSMA") and rules and regulations made thereunder with
respect to anything done by it in relation to the Class A
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 any
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 any Class A
Notes in circumstances in which Section 21(1) of FSMA does
not apply to the Issuer Trustee, including to persons
exempted as investment professionals under Article 19 or to
high net worth persons under Article 49 of the Financial
Services and Markets Xxx 0000 (Financial Promotion) Order
2001, as amended.
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
22
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 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.
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 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.
23
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 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. 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 - 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxxx Xxxxxx; 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 (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, 00
Xxxxxx 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.
17. 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.
24
18. 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.
19. 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.
20. 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.
25
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:
PERPETUAL TRUSTEES
CONSOLIDATED LIMITED
By:
--------------------------------
Name:
Title:
2
XX.XXXXXX BANK LIMITED
By:
--------------------------------
Name:
Title:
3
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the day
first above written
X.X. XXXXXX SECURITIES INC.
By:
---------------------------------------
Name:
Title:
Acting on behalf
of itself as the Representative of
the several Underwriters
4
SCHEDULE A
----------
PRINCIPAL AMOUNT OF CLASS A
Underwriter NOTES TO BE PURCHASED
----------------------------------------- ---------------------------
X.X. Xxxxxx Securities Inc. $
Credit Suisse First Boston Corporation $
UBS Warburg LLC
Total ............................ $
5
CRUSADE GLOBAL TRUST NO 1 OF 2003
Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: ________, 2003
X.X. Xxxxxx Securities Inc.
As Representative of the Underwriters
000 Xxxx Xxxxxx - 00xx 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 1 of
2003 (the "Issuer Trustee"), in the Underwriting Agreement dated _____,
2003 among X.X. Xxxxxx Securities Inc., as representative
("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:
6
