U.S.$994,000,000
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 1 OF 1999
U.S.$300,000,000 Class A-1 Mortgage Backed Floating Rate Notes
U.S.$569,000,000 Class A-2 Mortgage Backed Floating Rate Notes
U.S.$125,000,000 Class A-3 Mortgage Backed Floating Rate Notes
FORM OF UNDERWRITING AGREEMENT
September __, 1999
Credit Suisse First Boston Corporation
As Representative of the Several Underwriters,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. AXA Trustees Limited (ACN 004 029 841), a limited liability
public company under the Corporations Law of Victoria, Australia in its
capacity as trustee of the Crusade Global Trust No. 1 of 1999 (the "Issuer
Trustee") at the direction of Crusade Management Limited (CAN 072 715 916), as
manager (the "Trust Manager") of Crusade Global Trust No. 1 of 1999 (the
"Trust") proposes to sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representative (the
"Representative"), U.S.$300,000,000 principal amount of Class A-1 Mortgage
Backed Floating Rate Notes (the "Class A-1 Notes"), U.S.$569,000,000 principal
amount of Class A-2 Mortgage Backed Floating Rate Notes (the "Class A-2
Notes") and U.S.$125,000,00 principal amount of Class A-3 Mortgage Backed
Floating Rate Notes (the "Class A-3 Notes" and together with the Class A-1
Notes and the Class A-2 Notes, the "Notes") issued by the Trust. Each Note
will be secured by the assets of the Trust. The assets of the Trust include,
among other things, a pool of variable and fixed rate residential housing
loans (the "Housing Loans") originated or acquired by Xx.Xxxxxx Bank Limited
(ACN 055 513 070) ("Xx.Xxxxxx") including all monies at any time paid or
payable thereon or in respect thereof from, on and after September __, 1999
(the "Cut-Off Date") with respect to payments of principal and after the
Closing Date (as defined herein) with respect to payments of interest, rights
under certain insurance policies with respect to the Housing Loans, the
Collection Account and the rights of the Issuer Trustee under the Basic
Documents. The Trust will be created pursuant to the Master Trust Deed, dated
March 14, 1998 (the "Master Trust Deed") and a supplementary terms notice, to
be dated September __, 1999 (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, dated September __, 1999 (the "Note Trust Deed") by and among
the Issuer Trustee, the Trust Manager and Bankers Trust Company (the "Note
Trustee") provides for the issuance and registration of the Notes in
accordance with the terms and conditions attached thereto. Xx.Xxxxxx will act
as seller and as servicer (the "Servicer") of the
Housing Loans. The Trust Manager and Xx.Xxxxxx are each a "Xx.Xxxxxx Party"
and collectively are referred to herein as the "Xx.Xxxxxx Parties."
The Trust Manager has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Notes. The registration
statement as amended at the time when it became effective or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness (including in each
case information (if any) deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A under the Securities Act) is
referred to in this Agreement as the "Registration Statement" and the
prospectus in the form first used to confirm sales of Notes is referred to in
this Agreement as the "Prospectus".
When used in this Agreement, "Basic Documents" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement,
the Notes, the Security Trust Deed, the Note Trust Deed, the Fixed-Floating
Rate Swap, the Currency Swap, the Basis Swap, and the Agency Agreement which
is or is to be entered into by any of the Xx.Xxxxxx Parties or the Issuer
Trustee on the Closing Date or otherwise in connection with any of the
foregoing or this Agreement. To the extent not defined herein, capitalized
terms used herein have the meanings assigned to such terms in the Prospectus
(as defined hereinafter).
In this Agreement, a reference to the Issuer Trustee is a reference
to the Issuer Trustee in its capacity as trustee of the Trust only, and in no
other capacity. Any reference to the assets, business, property or undertaking
of the Issuer Trustee is a reference to the Issuer Trustee in that capacity
only.
The Xx.Xxxxxx Parties and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule I as follows:
2. Representations and Warranties of the Issuer Trustee and the Xx.Xxxxxx
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) Since June 30, 1999, there has been no material adverse change or
any development involving a prospective material adverse change in
the condition (financial or otherwise) of the Issuer Trustee, except
as disclosed in the Prospectus, which is material in the context of
the Issuer Trustee performing its obligations and duties under the
Notes and each Basic Document to which it is or is to be a party.
(b) The Issuer Trustee is a corporation duly incorporated and
existing under the laws of Victoria; it is lawfully qualified and
holds all Authorisations (as defined in the Master Trust Deed)
necessary to carry on its business as described in the Prospectus and
to issue the Notes and to act as required by each Basic Document to
which it is or is to be a party and by law to comply with any
requirements which affect the operations of business or the Trust or
the Issuer Trustee's obligations under the Basic Documents to which
it is a party and no other thing is required to be done by the Issuer
Trustee (including without limitation the making of any filing or
registration) in order to issue the Notes or to
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execute and act as required by each Basic Document to which it is to
be a party, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under
the Securities Act, the Trust Indenture Act and as may be required
under state securities or "Blue Sky" laws in connection with the
purchase and distribution of the Notes by the Underwriters.
(c) This Agreement has been duly authorized, executed and delivered
by the Issuer Trustee.
(d) The Notes have been duly authorized, and, when issued, delivered
and paid for pursuant to this Agreement, will have been duly
executed, issued and delivered and will 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 party thereto, and, when executed and delivered by the Issuer
Trustee and each of the other parties thereto, each of the Basic
Documents 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 on the Basic
Documents; the issue and sale of the Notes and the performance by the
Issuer Trustee of all of the provisions of its obligations under the
Notes, the Basic Documents and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any agreement or instrument to which the
Issuer Trustee is a party or by which the Issuer Trustee is bound or
to which any of the property or assets of the Trust is subject, nor
will any such action result in any violation of the provisions of the
Constitution of the Issuer Trustee or any applicable law or statute
or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Issuer Trustee, or any of its
properties; and, to the knowledge of the Issuer Trustee, no consent,
approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Notes or the
consummation by the Issuer Trustee of the transactions contemplated
by this Agreement or the Basic Documents, except such consents,
approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act, the
Trust Indenture Act and as may be required under state securities or
"Blue Sky" laws in connection with the purchase and distribution of
the Notes by the Underwriters.
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(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) KPMG LLP ("KPMG") are independent public accountants with respect
to the Issuer Trustee within the standards established by the
American Institute of Certified Public Accountants.
(i) 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.
(j) The Prospectus complies with the Listing Rules of the London
Stock Exchange Limited (the "London Stock Exchange"), and any
preliminary prospectus and the Prospectus (in the case of the
Prospectus, as of the date hereof and in the case of any preliminary
prospectus, as of its date) (i) contains all the information required
by section 146 of the Financial Services Act, and (ii) in the context
of the issue of the Notes to be issued to persons other than
residents of the United States of America is accurate in all material
respects and does not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the information
therein, in the light of the circumstances under which it is given,
not misleading and all reasonable inquiries have been made to
ascertain the accuracy of all such information.
(k) 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.
(l) Subject to compliance with Section 128F of the Income Tax
Assessment Act (1936) (the "Tax Act") and compliance by the
Underwriters with clause 11 hereto, no stamp or other duty is
assessable or payable in, and no withholding or deduction for any
taxes, duties, assessments or governmental charges of whatever nature
is imposed or made for or on account of any income, registration,
transfer or turnover taxes, customs or other duties or taxes of any
kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein
or thereof having power to tax in such jurisdiction, in connection
with the authorization, execution or delivery of the agreements to
which the Issuer Trustee is to be a party or with the authorization,
execution, issue, sale or delivery of the Notes and the performance
of the Issuer Trustee's obligations under the agreements, other than
with respect to a Title Perfection Event, to which it is to be a
party and payments under the Notes.
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(m) The Notes and the obligations of the Issuer Trustee under the
Note Trust Deed will be secured (pursuant to the Security Trust Deed)
by a first floating charge over the assets of the Trust.
(n) No event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of
notice and/or the passage of time and/or the fulfillment of any other
requirement) constitute an Issuer Trustee's Default (as defined in
the Prospectus).
II. The Xx.Xxxxxx parties, jointly and severally, represent and warrants to
each Underwriter and the Issuer Trustee that:
(a) No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the Securities Act, complied when so filed in all material
respects with the Securities Act, and did not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(b) The Registration Statement (No. 333-84977) on Form S-11 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 as to
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 any Xx.Xxxxxx Party taken as a
whole.
(d) The Trust Manager is a corporation duly incorporated and validly
existing under the Corporations Law of the Commonwealth of Australia;
the Trust Manager 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; the Trust
Manager has been duly qualified or licensed for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification or licensing, other
than where the failure to be so qualified or licensed or in good
standing would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents.
(e) This Agreement has been duly authorized, executed and delivered
by each of the Xx.Xxxxxx Parties.
(f) The Basic Documents to which any Xx.Xxxxxx party is a party have
been duly authorized by the applicable Xx.Xxxxxx Party, and upon
effectiveness of the Registration Statement, the Note Trust Deed will
have been duly qualified under the Trust Indenture Act and, when
executed and delivered by each Xx.Xxxxxx Party which is a party
thereto and each of the other parties thereto, each of the Basic
Documents to which any Xx.Xxxxxx Party is a party will constitute a
legal, valid and binding obligation of each such Xx.Xxxxxx Party,
enforceable against each such Xx.Xxxxxx Party in accordance with its
terms, subject as to enforceability to applicable bankruptcy,
insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles; and
the Notes and the Basic Documents each will conform to the
descriptions thereof in the Prospectus.
(g) Neither Xx.Xxxxxx Party is, nor with the giving of notice or
lapse of time or both would be, in violation of or in default under,
(i) its Constitution or (ii) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a
party or by which it or any of its properties is bound, except in the
case of (ii) for violations and defaults which individually and in
the aggregate would not have a material adverse effect on the
transactions contemplated herein or in the Basic Documents; the issue
and sale of the Notes and the performance by each Xx.Xxxxxx Party of
all of the provisions of its obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which each 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 Party is subject, nor
6
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 each Xx.Xxxxxx Party, or any of its
properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Notes or the consummation by each Xx.Xxxxxx Party of the transactions
contemplated by this Agreement or the Basic Documents, except such
consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act, the
Trust Indenture Act and as may be required under state securities or
"Blue Sky" laws in connection with the purchase and distribution of
the Notes by the Underwriters.
(h) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending
or, to the knowledge of either Xx.Xxxxxx Party, threatened against or
affecting either Xx.Xxxxxx Party or its properties or, to which
either Xx.Xxxxxx Party is or may be a party or to which each
Xx.Xxxxxx Party or any property of a Xx.Xxxxxx Party is or may be the
subject; 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, in each case, which will have an impact on the
transactions contemplated by this Agreement.
(i) The representations and warranties of each Xx.Xxxxxx Party
contained in the Basic Documents are true and correct in all material
respects.
(j) KPMG are independent public accountants with respect to each
Xx.Xxxxxx Party within the meaning of the standards established by
the American Institute of Certified Public Accountants.
(k) Each Xx.Xxxxxx Party owns, possesses or has obtained all
Authorisations (as defined in the Master Trust Deed), licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or
foreign, necessary to perform its obligations under this Agreement
and the Basic Documents, and neither Xx.Xxxxxx Party has received any
actual notice of any proceeding relating to revocation or
modification of any such Authorisation, license, permit, certificate,
consent, order, approval or other authorization; and each Xx.Xxxxxx
Party is in compliance with all laws and regulations necessary for
the performance of its obligations under this Agreement and the Basic
Documents.
(l) To the knowledge of any Xx.Xxxxxx Party, no event has occurred
which would entitle either Xx.Xxxxxx Party to direct the Issuer
Trustee to retire as trustee of the Trust under clause 20 of the
Master Trust Deed.
(m) The Prospectus complies with the Listing Rules of the London
Stock Exchange Limited (the "London Stock Exchange"), and any
preliminary prospectus and Prospectus
7
(in the case of the Prospectus, as of the date hereof and in the case
of any preliminary prospectus, as of its date) contains all the
information required by section 146 of the Financial Services Act.
(n) Neither Xx.Xxxxxx Party has taken any corporate action nor (to
the best of its knowledge and belief) have any other steps been taken
or legal proceedings been started or threatened against either
Xx.Xxxxxx Party for its winding-up, dissolution or reorganization or
for the appointment of a receiver, receiver and manager,
administrator, provisional liquidator or similar officer of it or of
any or all of its assets.
(o) Subject to compliance with Section 128F of the Tax Act, no stamp
or other duty is assessable or payable in, and no withholding or
deduction for any taxes, duties, assessments or governmental charges
of whatever nature is imposed or made for or on account of any
income, registration, transfer or turnover taxes, customs or other
duties or taxes of any kind, levied, collected, withheld or assessed
by or within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such
jurisdiction, in connection with the authorization, execution or
delivery of the agreements to which it is to be a party or with the
authorization, execution, issue, sale or delivery of the Notes and
the performance of either Xx.Xxxxxx Parties' obligations under the
agreements to which it is to be a party and the Notes.
(p) No event has occurred or circumstances arisen which, had the
Notes already been issued, would (whether or not with the giving of
notice and/or the passage of time and/or the fulfillment of any other
requirement) constitute a Manager's Default (as defined in the
Prospectus).
(q) Since June 30, 1999 there has been no material adverse change or
any development involving a prospective material adverse change in
the condition (financial or otherwise) of the Xx.Xxxxxx Parties; and
(r) As of the Closing Date, Xx.Xxxxxx will have transferred to the
Issuer Trustee a valid equitable assignment of each related Housing
Loan offered for sale by it to the Issuer Trustee.
3. Purchase, Sale and Delivery of Notes. On the basis of the representations,
warranties and agreements contained herein, but subject to the terms and
conditions herein set forth, the Issuer Trustee, at the direction of the Trust
Manager, agrees to sell the Notes to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Issuer Trustee at a
purchase price of ___% of the principal amount of the Class A-1 Notes, ___% of
the principal amount of the Class A-2 Notes and ___% of the principal amount
of the Class A-3 Notes (which amount shall be net of the commissions payable
to the Underwriters) the respective principal amount of each class of Notes
set forth opposite the names of the Underwriters in Schedule A hereto.
The Issuer Trustee will deliver against payment of the purchase price
the Notes in the form of one or more permanent Global Notes in definitive form
(the "Global Notes") deposited with the Note Trustee as custodian for The
Depository Trust Company (the "DTC") and
8
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Notes will be held only in book-entry form through DTC,
except in the limited circumstances described in the Prospectus. Payment for
the Notes shall be made by the Underwriters in Federal (same day) funds by
official bank check or checks or wire transfer to an account at a bank
acceptable to Credit Suisse First Boston Corporation ("CSFBC") drawn to the
order of the Currency Swap Provider at the office of Xxxxx, Xxxxx & Xxxxx,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 10:00 A.M., New York
City time, on September __, 1999, or at such other time not later than seven
full business days thereafter as CSFBC and the Trust Manager determine, such
time being herein referred to as the "Closing Date," against delivery to the
Note Trustee as custodian for DTC of the Global Notes representing all of the
Notes. The Global Notes will be made available for checking at the above
office at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. The Xx.Xxxxxx Parties and the Issuer Trustee
understand that the several Underwriters propose to offer the Notes for sale
to the public as set forth in the Prospectus.
5. Certain Agreements of the Issuer Trustee and the Xx.Xxxxxx Parties.
I. The Xx.Xxxxxx Parties, jointly and severally, covenant and agree with each
of the several Underwriters as follows:
(a) The Trust Manager will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) of Rule 424(b) by
the second business day following the execution and delivery of this
Agreement. The Trust Manager will advise CSFBC promptly of any such
filing pursuant to Rule 424(b).
(b) The Trust Manager will advise CSFBC 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 CSFBC's consent; and the Trust Manager will
also advise CSFBC promptly of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement
and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Trust Manager will promptly notify CSFBC 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 CSFBC's consent to, nor the Underwriters'
delivery
9
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, but not later than the Availability Date
(as defined below), 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. For the purpose of the preceding
sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such
effective date, except that, if such fourth fiscal quarter is the
last quarter of the Trust's fiscal year, "Availability Date" means
the 90th day after the end of such fourth fiscal quarter.
(e) The Trust Manager will furnish to the Representative copies of
each Registration Statement (3 of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Notes is required to be
delivered under the Securities Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such reasonable
quantities as CSFBC requests. The Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, on the business day following
the later of the execution and delivery of this Agreement or the
effective time of the Registration Statement. All other documents
shall be so furnished as soon as available. The Trust Manager will
pay the expenses of printing and distributing to the Underwriters all
such documents.
(f) The Trust Manager will arrange for the qualification of the Notes
for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as CSFBC designates and will
continue such qualifications in effect so long as required for the
distribution.
(g) So long as the Notes are outstanding, the Trust Manager will
furnish to the Representative (i) copies of each certificate, the
annual statements of compliance and the annual independent certified
public accountant's audit report on the financial statements
furnished to the Issuer Trustee or the Note Trustee pursuant to the
Basic Documents by first class mail as soon as practicable after such
statements and reports are furnished to the Issuer Trustee or the
Note Trustee, (ii) copies of each amendment to any of the Basic
Documents, (iii) on each Determination Date or as soon thereafter as
practicable, the Bond Factor as of the related Record Date shall be
available to the Representative on Bloomberg and Reuters, (iv) copies
of all reports or other communications (financial or other) furnished
to holders of the Notes, and copies of any reports and financial
statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities
exchange, and (v) from time to time such other information concerning
the Trust or the Trust Manager as the Representative may reasonably
request.
(h) To the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing
of documents or the taking of any other
10
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 Issuer Trustee or the Trust Manager on its behalf will list
the Notes on the London Stock Exchange and use its best efforts to
maintain such listing for as long as any of the Notes are
outstanding; provided, however, if such listing becomes impossible,
each of the Issuer Trustee and the Trust Manager will use their best
efforts to obtain, and will thereafter use its best efforts to
maintain a quotation for, or listing of, the Notes on such other
exchange as is commonly used for the quotation or listing of debt
securities as they may, with the approval of the Representative,
decide.
(j) The Trust Manager will furnish from time to time copies of the
Prospectus and any and all documents, instruments, information and
undertakings (in addition to any already published or lodged with the
London Stock Exchange) and publish all advertisements or other
material and to comply with any other requirements of the London
Stock Exchange that may be necessary in order to effect and maintain
such listing.
(k) The Trust Manager will assist the Representative in making
arrangements with DTC, Euroclear and Cedelbank concerning the issue
of the Notes and related matters.
(l) The Trust Manager will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows
or has reason to believe would result in the Notes not being assigned
the ratings referred to in Section 6(n) below.
(m) Xx.Xxxxxx Bank will pay all expenses incident to the performance
of its obligations under this Agreement, for any filing fees and
other expenses (including fees and disbursements of underwriters'
counsel and issuers' counsel) incurred in connection with
qualification of the Notes for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda
relating thereto, for any fees charged by the independent
accountants, for any fees charged by the rating agencies for the
rating of the Notes, for any travel expenses of any of the Xx.Xxxxxx
Parties' officers and employees and any other expenses of either
Xx.Xxxxxx Party in connection with attending or hosting meetings with
prospective purchasers of the Notes and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters.
(n) Xx.Xxxxxx Bank will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and sale of the Notes
and on the execution and delivery of this Agreement. All payments to
be made by the Issuer Trustee and the Xx.Xxxxxx Parties hereunder
shall 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.
11
(o) Neither Xx.Xxxxxx Party will offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Securities Act
relating to debt or asset-backed securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of CSFBC for a period
beginning at the date of this Agreement and ending at the later of
the Closing Date or the lifting of trading restrictions by the
Representative.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the
Issuer Trustee from the sale of the Notes pursuant to this Agreement
in the manner specified in the Prospectus under the caption "Use of
Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court
fees) in relation to the execution of, or any transaction carried out
pursuant to, the Agreements or in connection with the issue and
distribution of the Notes or the enforcement or delivery of this
Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred
to in Section 6 below and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents required to be executed by the
Issuer Trustee not executed on the date hereof on or before the
Closing Date, and (ii) the Issuer Trustee will assist the
Representative to make arrangements with DTC, Euroclear and Cedelbank
concerning the issue of the Notes and related matters.
(d) The Issuer Trustee will procure or cause to be procured that the
charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate
registers.
(e) The Issuer Trustee will perform all its obligations under, and
subject to, each of the Basic Documents to which it is a party which
are required to be performed prior to or simultaneously with closing
on the Closing Date.
(f) The Issuer Trustee will not take, or cause to be taken, any
action and will not knowingly permit any action to be taken which it
knows or has reason to believe would result in the Notes not being
assigned the ratings referred to in Section 6(n) below.
(g) The Issuer Trustee will not prior to or on the Closing Date amend
the terms of any Basic Document to which it is a party nor execute
any of the Basic Documents to which it is a party other than in the
agreed form without the consent of the Representative.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Xx.Xxxxxx Parties and the Issuer Trustee herein, to the accuracy
of the statements of officers of the Xx.Xxxxxx Parties and the Issuer Trustee
made pursuant to the provisions hereof, to the performance of the Xx.Xxxxxx
12
Parties and the Issuer Trustee of their obligations hereunder and to the
following additional conditions precedent:
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than 5:00 P.M., New York City time, on the date hereof or on
such later date to which you have consented; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission.
The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act and in
accordance with Section 5.I.(a) hereof; and all requests for
additional information shall have been complied with to the
satisfaction of the Representative. If the Trust Manager has elected
to rely on Rule 430A, all price-related information previously
omitted from the effective Registration Statement pursuant to such
Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the prescribed time period, and prior
to the Closing Date the Trust Manager shall have provided evidence
satisfactory to the Representative of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the
requirements of Rule 430A;
(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 taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Notes; (ii) any downgrading in the rating
of any debt securities of any of the Trust Manager, Xx.Xxxxxx, the
Issuer Trustee or any Swap Party by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of the
Notes or any debt securities of any of the Trust Manager, Xx.Xxxxxx,
the Issuer Trustee or any Swap Party (other than an announcement with
positive implications of a possible upgrading, and no implication of
a possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities generally
on the New York Stock Exchange, the London Stock Exchange or any
other exchange on which the Notes are listed, or any setting of
minimum prices for trading on such exchange, or any suspension of
trading of any securities of any of the Trust Manager, Xx.Xxxxxx, the
Issuer Trustee or any Swap Party on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal, New York, London, England or Australia authorities; or (v)
any outbreak or escalation of major hostilities in which the United
States, London, England or Australia is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in interest
of the Underwriters including the Representative, the effect of any
such outbreak,
13
escalation, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Notes.
(c) The Representative shall have received a certificate, dated such
Closing Date, of the managing director, director or any chief general
manager of each Xx.Xxxxxx Party and of an authorized officer of the
Issuer Trustee (as to paragraphs (i) and (ii) below only) 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) Xxxxx Xxxxx & Xxxxxxx, 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) Xxxxx Xxxxx & Xxxxxxx, 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 confirming that
they are independent public accountants within the standards
established by the American Institute of Certified Public Accountants
and stating to the effect that:
(1) in their opinion the financial statements and schedules
examined by them and included in the Registration Statement and
in the Form 8-K of referred to in the Registration Statement
with respect to Bankers Trust Corporation, as currency swap
provider, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(2) on the basis of a reading of the latest available interim
financial statements of Bankers Trust Corporation, inquiries of
officials of Bankers Trust Corporation who have responsibility
for financial and accounting matters and other specified
14
procedures, nothing came to their attention that caused them to
believe that the unaudited financial statements included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations
or any material modifications should be made to such unaudited
financial statements for them to be in conformity with generally
accepted accounting principles;
(3) 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, 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) The Representative shall have received on and as of the Closing
Date an opinion of Xxxxx & Wood LLP, counsel to the Underwriters,
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.
(h) Xxxxx Xxxxx & Xxxxx, 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 Final Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto;
(3) The Trust is not and, after giving effect to the offering
and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940;
(4) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required
for the consummation of
15
the transactions contemplated by this Agreement in connection
with the issuance or sale of the Notes by the Issuer Trustee,
except such as have been obtained and made under the Securities
Act and the Trust Indenture Act and such as may be required
under state securities laws;
(5) the Registration Statement was filed and was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus either was filed with
the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Registration Statement, 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 each 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 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 and contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel do not know of any legal or governmental
proceedings required to be described in the Registration
Statement or the Prospectus which are not described as required
or of any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements
or other financial data contained in the Registration Statement
or the Prospectus;
(6) The statements in the Prospectus under the Captions
"Description of the Class A Notes" and "Description of the
Transaction Documents", insofar as they purport to summarize
certain terms of the Notes and the applicable Basic Documents,
constitute a fair summary of the provisions purported to be
summarized; and
(7) This Agreement represents a legal valid and binding
obligation of each of Xx.Xxxxxx, the Trust Manager and the
Issuer Trustee.
(i) Xxxxx Xxxxx & Xxxxx, United States federal income tax counsel for
the Xx.Xxxxxx Parties and the Issuer Trustee, shall have furnished to
the Representative their written
16
opinion, dated the Closing Date, in form and substance satisfactory
to the Representative, a copy of which opinion is attached hereto as
Exhibit C.
(j) Mallesons Xxxxxxx Xxxxxx, counsel for the Issuer Trustee, shall
have furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters, a copy of which opinion is attached hereto as
Exhibit D.
(k) Xxxxx & Wood LLP, counsel for the Note Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the
Representative, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters, a copy of which is attached hereto as Exhibit E.
(l) Counsel to the Fixed-Floating Rate Swap Provider, the Standby
Fixed-Floating Rate Swap Provider, the Basis Swap Provider, the
Standby Basis Swap Provider and 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, copies of which opinions will be attached hereto as
Exhibit F.
(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, each Class of Class A Notes shall have been
rated "AAA" by Standard & Poor's Ratings Services, A Division of The
XxXxxx-Xxxx Companies, Inc. ("Standard and Poor's") and Fitch IBCA,
Inc. ("Fitch IBCA") and "Aaa" by Xxxxx'x Investors Service, Inc.
("Moody's" and together with Standard and Poor's and Fitch IBCA, 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) The London Stock Exchange shall have agreed on or prior to the
Closing Date to list the Notes.
(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.
7. Indemnification and Contribution.
(a) Each of Xx.Xxxxxx and the Trust Manager, jointly and severally, agrees to
indemnify and hold harmless each Underwriter and the Issuer Trustee, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which such
17
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 any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement thereto
(other than the information contained under the heading "The Currency Swap
Provider"), 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 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 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.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless Xx.Xxxxxx, the Issuer Trustee and the Trust Manager, its partners,
its directors and officers and each person, if any, who controls such company
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which such company may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Trust Manager by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by Xx.Xxxxxx, the Issuer Trustee or the Trust Manager in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: (i) the concession and reallowance figures appearing in the third
paragraph under the caption "Plan of Distribution" and (ii) the information
contained in the fifth and seventh paragraphs under the caption "Plan of
Distribution".
(c) Promptly after receipt by an indemnified party under this Section (c) of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
18
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 Notes or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Xx.Xxxxxx Parties and the Issuer
Trustee on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Xx.Xxxxxx Parties and the Issuer Trustee on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Xx.Xxxxxx Parties and the Issuer Trustee bear to the
total underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Xx.Xxxxxx Parties and the Issuer Trustee or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Notes underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
19
(e) The obligations of the Xx.Xxxxxx Parties and the Issuer Trustee under this
Section shall be in addition to any liability which the Xx.Xxxxxx Parties and
the Issuer Trustee may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within
the meaning of the Securities Act; and the obligations of the Underwriters
under this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Xx.Xxxxxx Parties or the Issuer Trustee,
to each officer of the Xx.Xxxxxx Parties or the Issuer Trustee who has signed
the Registration Statement and to each person, if any, who controls the
Xx.Xxxxxx Parties or the Issuer Trustee within the meaning of the Securities
Act.
(f) To the extent that any payment of damages by Xx.Xxxxxx Bank pursuant to
subsection 7(a) above is determined to be a payment of damages pursuant to
"Funds Management and Securitisation Prudential Statement C2" such payment
shall be subject to the terms of Section 89 therein.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Notes hereunder on the Closing Date and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of Notes that the Underwriters are obligated to purchase on
such Closing Date, CSFBC may make arrangements satisfactory to the Trust
Manager for the purchase of such Notes by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Notes that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate principal amount
of Notes with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Notes that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Trust Manager for the purchase of such Notes by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Trust Manager,
except as provided in Section 9. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Xx.Xxxxxx Parties, the Issuer Trustee or their respective officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the
Xx.Xxxxxx Parties, the Issuer Trustee or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Notes. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Notes by the
Underwriters is not consummated, the Xx.Xxxxxx Parties, jointly and severally,
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Xx.Xxxxxx Parties,
the Issuer Trustee and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Notes have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain
20
in effect. If the purchase of the Notes by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause
(iii), (iv) or (v) of Section 6(b), the Xx.Xxxxxx Parties, jointly and
severally, will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Notes.
10. Selling Restrictions.
(a) No prospectus in relation to the Notes has been lodged with, or
registered by, the Australian Securities Commission or the Australian Stock
Exchange Limited. Each Underwriter represents and agrees that in connection
with the initial distribution of the Notes:
(1) it has not (directly or indirectly) offered for subscription
or purchase or issued invitations to subscribe for or buy nor
has it sold, the Notes,
(2) will not (directly or indirectly) offer for subscription or
purchase or issue invitations to subscribe for or buy nor will
it sell the Notes, and
(3) has not distributed and will not distribute any prospectus,
or any advertisement or other offering material
in the Commonwealth of Australia, its territories or possessions
("Australia") or to any person who is actually known by the
Underwriter (without an obligation on the Underwriter to make
any inquiry) to be a resident of Australia for the purposes of
section 128F of the Income Tax Assessment Xxx 0000 of Australia
(the "Tax Act") or to any associates of the Trust Manager or
Xx.Xxxxxx identified on Annex A hereto or as otherwise notified
in writing by the Trust Manager or Xx.Xxxxxx to the Underwriters
from time to time.
(b) Each Underwriter (severally, not jointly) undertakes in
connection with the Notes subject to the "public offer test" under
Section 128F of the Tax Act and governed by this Agreement that the
issue of such Notes resulted from:
(i) an offer by such Underwriter within 30 days of issue to any
person as a result of negotiations being initiated in
electronic form (specifying the particular electronic
screen or service), the Prospectus or in such other form as
may be applicable, being a form that is used by the
financial markets for dealing in securities; or
(ii) its offer of such Notes for sale within 30 days of issue to
at least 10 persons who are in the business of providing
finance or investing or dealing in securities in financial
markets each of whom was not known to be an associate of
any of the others (within the meaning of section 128F of
the Tax Act),
and in either case it has announced on behalf of the Issuer
Trustee in relation to the offer that Xxxxxx Guaranty Trust
Company of New York, Brussels office, as operator of the
21
Euroclear System ("Euroclear"), Cedelbank or The Depository
Trust Company will confer rights in such Notes under Global
Notes. Each Underwriter will provide the Issuer Trustee (within
five Business Days of the offer of such Notes by it) a written
statement which sets out details of the relevant offer.
Each Underwriter (severally, not jointly) agrees to co-operate
with reasonable requests from the Issuer Trustee for information
for the purposes of assisting the Issuer Trustee to demonstrate
that the public offer test under section 128F of the Tax Act has
been satisfied, provided that no Underwriter shall be obliged to
disclose the identity of the purchaser of any Note or any
information from which such identity might/would be capable of
being ascertained, or any information the disclosure of which
would be contrary to or prohibited by any relevant law,
regulation or directive.
(iii) Each Underwriter acknowledges that no representation is made
by the Issuer Trustee or any Xx.Xxxxxx Party that any
action has been or will be taken in any jurisdiction
outside the United States by the Issuer Trustee or any
Underwriter that would permit a public offering of the
Notes, or possession or distribution of the Prospectus or
any other offering material, in any country or
jurisdiction where action for that purpose is required.
Each Underwriter will comply with all applicable
securities laws and regulations in each jurisdiction in
which it purchases, offers, sell or delivers Notes or has
in its possession or distributes the Prospectus or any
other offering material, in all cases at its own expense.
(iv) It has not offered or sold and will not offer or sell any
Notes to persons in the United Kingdom prior to admission
of the Notes to listing in accordance with Part IV of the
Financial Services Xxx 0000 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, of the Financial Services
Act.
(v) It has complied and will comply with all applicable
provisions of the Financial Services Act with respect to
anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom.
(vi) In connection with the Notes, it has only issued or passed
on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue
of the Notes, other than any document which consists of or
of any part of listing particulars, supplementary listing
particulars or any other document required or permitted to
be published by the Listing Rules, to a person who is of a
kind described in Article 11(e) of the Financial Services
Xxx 0000 (Investment Advertisements)
22
(Exemptions) Order 1996 (as amended) or is a person to
whom the document may otherwise lawfully be issued or
passed on.
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 can be enforced against the Issuer
Trustee only to the extent to which it can be satisfied out of assets and
property of the Trust which are available to satisfy the right of the Issuer
Trustee to be exonerated or indemnified for such liability. This limitation of
the Issuer Trustee's liability applies despite any other provisions of this
Agreement and extends to all liabilities and obligations of the Issuer Trustee
in any way connected with any representation, warranty, conduct, omission,
agreement or Transaction related to this Agreement or the Trust.
The parties other than the Issuer Trustee may not xxx the Issuer
Trustee in any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust Deed) or a
liquidator, an administrator or any other similar person to the Issuer Trustee
or prove in any liquidation, administration or arrangements of or affecting
the Issuer Trustee.
The provisions of this Section 11 shall not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not satisfied
because under a Basic Document or by operation of law there is a reduction in
the extent of the Issuer Trustee's indemnification or exoneration out of the
assets of the Trust as a result of the Issuer Trustee's fraud, negligence or
Default (as defined in the Master Trust Deed).
It is acknowledged that the Trust Manager, the Servicer, the
Custodian, the Currency Swap Providers, the Redraw Facility Provider, the Swap
Providers, the Standby Swap Providers, the Note Trustee, the Principal Paying
Agent, the other Paying Agents, 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 fulfil its obligations relating to
the Trust or by any other act or omission of a Relevant Party or by any other
such person.
12. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process.
Each of the Xx.Xxxxxx Parties and the Issuer Trustee hereby submits
to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
Each of the Xx.Xxxxxx Parties and the Issuer Trustee irrevocably appoints
[Insert name and address of authorized agent], as its authorized agent in the
Borough of
23
Manhattan in The City of New York upon which process may be served in any such
suit or proceeding, and agrees that service of process upon such agent, and
written notice of said service to it by the person serving the same to the
address provided in Section 16, shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. Each of the
Xx.Xxxxxx Parties and the Issuer Trustee further agrees to take any and all
action as may be necessary to maintain such designation and appointment of
such agent in full force and effect for so long as the Notes remain
outstanding.
The obligation of any of the Xx.Xxxxxx Parties or the Issuer Trustee
in respect of any sum due to any Underwriter shall, notwithstanding any
judgment in a currency other than United States dollars, not be discharged
until the first business day, following receipt by such Underwriter of any sum
adjudged to be so due in such other currency, on which (and only to the extent
that) such Underwriter may in accordance with normal banking procedures
purchase United States dollars with such other currency; if the United States
dollars so purchased are less than the sum originally due to such Underwriter
hereunder, each of the Xx.Xxxxxx Parties and the Issuer Trustee agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss.
13. Foreign Taxes. All payments to be made by the Issuer Trustee and 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.
14. Waiver of Immunities. To the extent that any of the Issuer Trustee and the
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, form 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
24
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 Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Investment Banking Department--Transactions Advisory Group; if sent
to the Trust Manager will be mailed, delivered or telegraphed and confirmed to
the Trust Manager at c/o ________________ (Facsimile No. ___________),
Attention: _____________; if sent to the Issuer Trustee, mailed, delivered or
telegraphed and confirmed to the Issuer Trustee at c/o __________________
(Facsimile No. _________), Attention: ______________; and if sent to
Xx.Xxxxxx, mailed, delivered or telegraphed and confirmed to Xx.Xxxxxx at
______________ (Facsimile No. __________), Attention: __________; 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.
25
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return the enclosed
counterparts hereof, whereupon it will become a binding agreement between the
parties listed below in accordance with its terms.
Very truly yours,
CRUSADE MANAGEMENT LIMITED
By:
------------------------------
Name:
Title:
AXA TRUSTEES LIMITED
By:
------------------------------
Name:
Title:
XX.XXXXXX BANK LIMITED
By:
------------------------------
Name:
Title:
26
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the day first above
written
Credit Suisse First Boston Corporation
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-------------------------------
Name:
Title:
Acting on behalf
of itself as the Representative of
the several Underwriters
27
SCHEDULE A
Underwriter PRINCIPAL AMOUNT OF CLASS A-1
NOTES TO BE PURCHASED
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
Total................... $
Underwriter PRINCIPAL AMOUNT OF CLASS A-2
NOTES TO BE PURCHASED
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
Total................... $
Underwriter PRINCIPAL AMOUNT OF CLASS A-3
NOTES TO BE PURCHASED
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
X.X. Xxxxxx Securities Inc.
Total................... $
28
