U.S. $[600,000,000]
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 1 of 2005
U.S. $[600,000,000] Class A-1
Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
----------------------
March [__], 2005
Deutsche Bank Securities Inc.
as Representative of the several Underwriters,
00 Xxxx Xxxxxx
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 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. 1 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. $[600,000,000] principal amount of Class A-1 Mortgage
Backed Floating Rate Notes (the "CLASS A-1 NOTES") issued by the Trust. The
Trust will also at the same time issue its (euro)[500,000,000] Class A-2
Mortgage Backed Floating Rate Notes, its A$[500,000,000] Class A-3 Mortgage
Backed Floating Rate Notes, its A$[26,700,000] Class B Mortgage Backed Floating
Rate Notes and its A$[8,600,000] 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 March [7], 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 February 28, 2005 and a supplementary terms notice, to be dated on
or about March [__], 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 March [__], 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 Swaps, 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
3
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
4
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. 333-121534), 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 February 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 Class A-1 Notes set
8
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 The Royal Bank of Scotland plc (the "Currency Swap Provider") at
the office of Xxxxx, Brown, Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 not later than 10:00 A.M., New York City time, on March [__], 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)
10
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, the Irish 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
13
judgment of a majority in interest of the Underwriters, including the
Representative, the effect of any such outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the 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) Xxxxxx 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) Xxxxxx 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 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 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 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 Class
A-1 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 statements therein not misleading or that the
Prospectus or any amendment or
15
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 Notes" and "Description of the Transaction
Documents", insofar as they purport to summarize certain terms
of the Class A-1 Notes and the applicable Basic Documents,
constitute a fair summary of the provisions purported to be
summarized;
(7) The statements contained in the Prospectus under the
captions "ERISA Considerations" and "United States Federal
Income Tax Matters", to the extent that they constitute
matters of federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible
consequences of investment in the Class A-1 Notes, are correct
in all material respect with respect to those consequences or
matters that are discussed therein; and
(8) This Agreement constitutes a legal valid and binding
obligation of each of Xx.Xxxxxx, the Trust Manager and the
Issuer Trustee.
(h) Mayer, Brown, Xxxx & Maw LLP, 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.
(x) Xxxxxxxxx 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.
(j) 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.
(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.
(l) XxXxx Xxxxxx, LLP, special United States counsel to the
Representative and the Underwriters, shall have furnished to the
Representative their written opinion, dated the
16
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.
(m) 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.
(n) 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. ("XXXXX'X") 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.
(o) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(p) 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.
(q) 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.
(r) 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.
(s) The joint lead managers shall have purchased the Class A-2 Notes
pursuant to the subscription agreement, dated as of [ ], 2005, among
the Issuer Trustee, each Xx.Xxxxxx Party and the joint lead managers.
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
17
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 Notes--The Currency
Swaps--The Royal Bank of Scotland 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
18
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 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
19
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). 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 Swaps--The Royal Bank of Scotland 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-
20
"Funds Management and Securitisation" or any successor thereto such
payment shall be subject to the terms therein (or the terms of any
equivalent provision in any replacement of Prudential Standard APS
120).
(g) The remedies provided in this Section 7, are not exclusive and
shall not limit any rights or remedies which may otherwise by available
to any indemnified party at law or in equity.
8. Default of Underwriters. If any Underwriter or Underwriters default in their
obligations to purchase 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) or (vi) 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.
21
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 Act 2001 (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).
22
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
23
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 prior to the expiry of a
period of six months from the date of issue of the Class A-1
Notes offer or sell any Class A-1 Notes to persons in the United
Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995 (as
amended) or the Financial Services and Markets Act 2000 (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) agrees that:
(1) except in circumstances which do not constitute an offer to the
public within the meaning of the Irish Companies Acts 1963 to 2003, as
amended from time to time (the "IRISH ACTS"), it has not offered or
sold and will not offer or sell any Class A-1 Notes in Ireland or
elsewhere, by means of any documents prior to application for listing
of the Class A-1 Notes being made and the Irish Stock Exchange having
approved the relevant listing particulars in accordance with the
European Communities (Stock Exchange) Regulations 1984 (the "1984
REGULATIONS") and thereafter by means of any document other than: (i)
the
24
relevant listing particulars; and/or (ii) a form of application issued
in connection with the Class A-1 Notes which indicates where the
relevant listing particulars can be obtained or inspected or which is
issued with the relevant listing particulars;
(2) it has not made and will not make any offer of the Class A-1 Notes
which would require a prospectus to be issued under the European
Communities (Transferable Securities and Stock Exchange) Regulations
1992 of Ireland; and
(3) it has complied with and will comply with all applicable provisions
of the Irish Acts, the 1984 Regulations and the Irish Investment
Intermediaries Act, 1995 (as amended) (including, without limitation,
Sections 9, 23 (including any advertising restrictions made thereunder)
and 50, and will conduct itself in accordance with a 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 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 to persons
whose ordinary business is to buy or sell shares or debentures (whether
as principal or agent), or in circumstances which do not constitute an
offer to the public within the meaning of the Companies Ordinance (Cap.
32) of Hong Kong ; and
(2) it has not issued or had in its possession for the purposes of
issue, any advertisement, invitation or document relating to the Class
A-1 Notes, whether in Hong Kong or elsewhere, 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
25
Kong or only to "professional investors" within the meaning of 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 28 Xxxxx, del
Xxxxxxx de Valores) 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.
(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 sue the Issuer Trustee in
any capacity other than as trustee of the Trust or seek the appointment of a
receiver (except under the Security
26
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 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
27
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 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 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: [ ]; if
sent to the Trust Manager will be mailed, delivered or telegraphed and confirmed
to the Trust Manager at c/o Company Secretary, level 4,
28
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 Level 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 Level 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.
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.
29
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:
30
PERPETUAL TRUSTEES
CONSOLIDATED LIMITED
By:
-------------------------------------
Name:
Title:
31
XX.XXXXXX BANK LIMITED
By:
-------------------------------------
Name:
Title:
32
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the day
first above written
DEUTSCHE BANK SECURITIES INC.,
acting on behalf of itself as the Representative
of the several Underwriters
By:
-----------------------------------
Name:
Title:
33
SCHEDULE A
----------
PRINCIPAL AMOUNT OF CLASS A-1
Underwriter NOTES TO BE PURCHASED
-------------------------------------- ------------------------------------
Deutsche Bank Securities Inc. US$___________________
X.X. Xxxxxx Securities Inc. US$___________________
Greenwich Capital Markets, Inc. US$___________________
Total US$___________________
34
CRUSADE GLOBAL TRUST NO 1 OF 2005
Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: March [__], 2005
Deutsche Bank Securities Inc.
as Representative of the several Underwriters,
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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 2005 (the "Issuer Trustee"), in the Underwriting Agreement dated
March [__], 2005 among Deutsche Bank Securities 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:
35
