U.S. $880,000,000
CRUSADE MANAGEMENT LIMITED
CRUSADE GLOBAL TRUST NO. 1 OF 2002
U.S. $880,000,000 Class A
Mortgage Backed Floating Rate Notes
UNDERWRITING AGREEMENT
----------------------
X.X. Xxxxxx Securities Inc.
As Representative of the Several Underwriters,
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Perpetual Trustees Consolidated Limited (ABN 81 004 029 841), a
limited liability public company under the Corporations Law of Victoria,
Australia in its capacity as trustee of the Crusade Global Trust No. 1 of 2002
(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
2002 (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.$880,000,000 principal amount
of Class A Mortgage Backed Floating Rate Notes (the "CLASS A NOTES" or the
"NOTES") issued by the Trust. Each Note will be secured by the assets of the
Trust. The assets of the Trust include, among other things, a pool of variable
and fixed rate residential housing loans (the "HOUSING LOANS") originated or
acquired by Xx.Xxxxxx Bank Limited (ABN 92 055 513 070) ("XX.XXXXXX") including
all monies at any time paid or payable thereon or in respect thereof from, after
[CUT-OFF DATE] (the "CUT-OFF Date") with respect to payments of principal and
after the Closing Date (as defined herein) with respect to payments of interest,
rights under certain insurance policies with respect to the Housing Loans, the
Collection Account and the rights of the Issuer Trustee under the Basic
Documents. The Trust will be created pursuant to the Master Trust Deed, dated
March 14, 1998 (the "MASTER TRUST DEED") and a supplementary terms notice, to be
dated on or about [CLOSING DATE] (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 [CLOSING DATE] (the "NOTE TRUST DEED") by
and among the Issuer Trustee, the Trust Manager and Wilmington Trust Company
(the "NOTE TRUSTEE") provides for the issuance and registration of the Notes in
accordance
with the terms and conditions attached thereto. Xx.Xxxxxx will act as seller and
as servicer (the "SERVICER") of the Housing Loans. The Trust Manager and
Xx.Xxxxxx are each a "XX.XXXXXX PARTY" and collectively are referred to herein
as the "XX.XXXXXX PARTIES."
The Trust Manager has prepared and filed with the Securities and
Exchange Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Notes.
When used in this Agreement, "BASIC DOCUMENTS" shall mean each of the
Master Trust Deed, the Supplementary Terms Notice, the Servicing Agreement, the
Notes, the Security Trust Deed, the Note Trust Deed, the Fixed-Floating Rate
Swap, the Currency Swap, the Basis Swap, and the Agency Agreement. To the extent
not defined herein, capitalized terms used herein have the meanings assigned to
such terms in the Prospectus (as defined hereinafter).
In this Agreement, a reference to the Issuer Trustee is a reference to
the Issuer Trustee in its capacity as trustee of the Trust only, and in no other
capacity. Any reference to the assets, business, property or undertaking of the
Issuer Trustee is a reference to the Issuer Trustee in that capacity only.
The Xx.Xxxxxx Parties and the Issuer Trustee hereby agree with the
several Underwriters named on Schedule I as follows:
2. Representations and Warranties of the Issuer Trustee and the Xx.Xxxxxx
Parties.
I. The Issuer Trustee represents and warrants to each Underwriter that:
(a) Since [DATE], 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 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
2
limitation the making of any filing or registration) in order to issue
the Notes or to execute and act as required by each Basic Document to
which it is to be a party.
(c) This Agreement has been duly authorized, executed and delivered by
the Issuer Trustee.
(d) The Notes have been duly authorized, and, when issued, delivered
and paid for pursuant to this Agreement, will have been duly executed,
issued and delivered and will constitute valid and binding obligations
of the Issuer Trustee, entitled to the benefits provided by the Note
Trust Deed and the Security Trust Deed, subject as to enforceability to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation or other similar laws affecting the
enforcement of creditors' rights generally and to general equitable
principles. Each of the Basic Documents to which the Issuer Trustee is
a party have been duly authorized by the Issuer Trustee, and, when
executed and delivered by the Issuer Trustee and each of the other
parties thereto, will constitute a legal, valid and binding obligation
of the Issuer Trustee, enforceable against the Issuer Trustee in
accordance with its terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation or other similar laws affecting the enforcement of
creditors' rights generally and to general equitable principles.
(e) The Issuer Trustee is not, nor with the giving of notice or lapse
of time or both would be, in violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Issuer Trustee
is a party or by which it or any of its properties is bound, except in
the case of (ii) for violations and defaults which individually and in
the aggregate would not have a material adverse effect on the
transactions contemplated herein or in the Basic Documents; the issue
and sale of the Notes and the performance by the Issuer Trustee of all
of the provisions of its obligations under the Notes, the Basic
Documents and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any agreement or instrument to which the Issuer Trustee is a
party or by which the Issuer Trustee is bound or to which any of the
property or assets of the Trust is subject, nor will any such action
result in any violation of the provisions of the Constitution of the
Issuer Trustee or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Issuer Trustee, or any of its properties; and, to
the knowledge of the Issuer Trustee, no consent, approval,
authorization, order, license, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Notes or the consummation by the Issuer Trustee of the
transactions contemplated by this Agreement or the Basic Documents,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as may
3
be required under state securities or "Blue Sky" laws in connection
with the purchase and distribution of the Notes by the Underwriters.
(f) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Issuer Trustee,
threatened against or affecting the Issuer Trustee or the Trust, or to
which the Issuer Trustee is or may be a party or to which the Issuer
Trustee or any property of the Trust is or may be the subject, which
will have an impact on the transactions contemplated by this Agreement.
(g) The representations and warranties of the Issuer Trustee contained
in the Basic Documents are true and correct in all material respects.
(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) hereto, no stamp or other duty is
assessable or payable in, and no withholding or deduction for any
taxes, duties, assessments or governmental charges of whatever nature
is imposed or made for or on account of any income, registration,
transfer or turnover taxes, customs or other duties or taxes of any
kind, levied, collected, withheld or assessed by or within, the
Commonwealth of Australia or any sub-division of or authority therein
or thereof having power to tax in such jurisdiction, in connection with
the authorization, execution or delivery of the agreements to which the
Issuer Trustee is to be a party or with the authorization, execution,
issue, sale or delivery of the Notes and the performance of the Issuer
Trustee's obligations under the Basic Documents, other than, in the
case of stamp duty, following a Title Perfection Event, to which it is
to be a party and payments under the Notes.
(k) The Notes and the obligations of the Issuer Trustee under the Note
Trust Deed will be secured (pursuant to the Security Trust Deed) by a
first floating charge over the assets of the Trust, subject to the
terms of the Security Trust Deed.
(l) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the
4
passage of time and/or the fulfillment of any other requirement)
constitute an Issuer Trustee's Default (as defined in the Prospectus).
II. The Xx.Xxxxxx parties, jointly and severally, represent and warrant to each
Underwriter and the Issuer Trustee that:
(a) The Trust Manager has filed a registration statement on Form S-11
(No. 333-81688), including a form of preliminary prospectus, for
registration of the Notes under the Securities Act and has filed such
amendments thereto and will file such additional amendments thereto and
such amended prospectuses as may hereafter be required. Such
registration statement in the form in which it first became effective
and as amended or supplemented thereafter (if applicable) and the
prospectus constituting a part thereof (including all information
deemed to be a part thereof pursuant to Rule 430A(b) of the rules and
regulations of the Commission under the Securities Act) as amended or
supplemented thereafter (if applicable) under the Securities Act are
herein referred to as the "REGISTRATION STATEMENT" and the
"PROSPECTUS", respectively, except that if any revised prospectus shall
be provided to you for use in connection with the offering of the Notes
which differs from the Prospectus on file with the Commission at the
time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b)),
the term "PROSPECTUS" shall refer to such revised prospectus from and
after the time it is first provided to you for such use.
(b) The Registration Statement has been declared effective under the
Securities Act by the Commission. No stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Trust Manager, threatened by the Commission. The Registration
Statement and Prospectus (as amended or supplemented if the Trust
Manager shall have furnished any amendments or supplements thereto)
comply, or will comply, as the case may be, in all material respects
with the Securities Act and the rules and regulations of the Commission
thereunder and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"TRUST INDENTURE ACT") and do not and will not, as of the applicable
effective date 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
5
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).
(c) Except as described in the Prospectus, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has been no material adverse change, nor any
development involving a prospective material adverse change, in the
condition (financial or other), business, properties, stockholders'
equity or results of operations of any Xx.Xxxxxx Party taken as a
whole.
(d) Each Xx.Xxxxxx Party is a corporation duly incorporated and validly
existing under the Corporations Act of the Commonwealth of Australia as
in effect at the date of this agreement; each Xx.Xxxxxx Party has the
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement and the Basic
Documents to which it is a party and carry out the transactions
contemplated by such Basic Documents; each Xx.Xxxxxx Party has been
duly qualified or licensed for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require
such qualification or licensing, other than where the failure to be so
qualified or licensed or in good standing would not have a material
adverse effect on the transactions contemplated herein or in the Basic
Documents.
(e) This Agreement has been duly authorized, executed and delivered by
each of the Xx.Xxxxxx Parties.
(f) The Basic Documents to which any Xx.Xxxxxx party is a party have
been duly authorized by the applicable Xx.Xxxxxx Party, and upon
effectiveness of the Registration Statement, the Note Trust Deed will
have been duly qualified under the Trust Indenture Act and, when
executed and delivered by each Xx.Xxxxxx Party which is a party thereto
and each of the other parties thereto, each of the Basic Documents to
which any Xx.Xxxxxx Party is a party will constitute a legal, valid and
binding obligation of each such Xx.Xxxxxx Party, enforceable against
each such Xx.Xxxxxx Party in accordance with its terms, subject as to
enforceability to applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, liquidation or other similar laws
affecting the enforcement of creditors' rights generally and to general
equitable principles; and the Notes and the Basic Documents each will
conform to the descriptions thereof in the Prospectus.
(g) Neither Xx.Xxxxxx Party is, nor with the giving of notice, or lapse
of time or both would be, in violation of or in default under, (i) its
Constitution or (ii) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it or any of its properties is bound,
6
except in the case of (ii) for violations and defaults which
individually and in the aggregate would not have a material adverse
effect on the transactions contemplated herein or in the Basic
Documents; the issue and sale of the Notes and the performance by each
Xx.Xxxxxx Party of all of the provisions of its obligations under the
Notes, the Basic Documents and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which either
Xx.Xxxxxx Party is a party or by which either Xx.Xxxxxx Party is bound
or to which any of the property or assets of either Xx.Xxxxxx Party is
subject, nor will any such action result in any violation of the
provisions of the Constitution of either Xx.Xxxxxx Party or any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over either
Xx.Xxxxxx Party, or any of its properties; and no consent, approval,
authorization, order, license, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Notes or the consummation by either Xx.Xxxxxx Party of
the transactions contemplated by this Agreement or the Basic Documents,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under
state securities or "Blue Sky" laws in connection with the purchase and
distribution of the Notes by the Underwriters.
(h) Except as disclosed in the Prospectus, there are no legal or
governmental investigations, actions, suits or proceedings pending or,
to the knowledge of either Xx.Xxxxxx Party, threatened against or
affecting either Xx.Xxxxxx Party or its properties or, to which either
Xx.Xxxxxx Party is or may be a party or to which either Xx.Xxxxxx Party
or any property of either Xx.Xxxxxx Party is or may be the subject, in
each case, which will have an impact on the transactions contemplated
by this Agreement; and there are no statutes, regulations, contracts or
other documents that are required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as
required.
(i) The representations and warranties of each Xx.Xxxxxx Party
contained in the Basic Documents are true and correct in all material
respects.
(j) KPMG 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
7
foreign regulatory agencies), all self-regulatory organizations and all
courts and other tribunals, domestic or foreign, necessary to perform
its obligations under this Agreement and the Basic Documents, and
neither Xx.Xxxxxx Party has received any actual notice of any
proceeding relating to revocation or modification of any such
Authorisation, license, permit, certificate, consent, order, approval
or other authorization; and each Xx.Xxxxxx Party is in compliance with
all laws and regulations necessary for the performance of its
obligations under this Agreement and the Basic Documents.
(l) To the knowledge of any Xx.Xxxxxx Party, no event has occurred
which would entitle either Xx.Xxxxxx Party to direct the Issuer Trustee
to retire as trustee of the Trust under clause 20 of the Master Trust
Deed.
(m) Neither Xx.Xxxxxx Party has taken any corporate action nor (to the
best of its knowledge and belief) have any other steps been taken or
legal proceedings been started or threatened against either Xx.Xxxxxx
Party for its winding-up, dissolution or reorganization or for the
appointment of a receiver, receiver and manager, administrator,
provisional liquidator or similar officer of it or of any or all of its
assets.
(n) Subject to compliance with Section 128F of the Tax Act, no stamp or
other duty is assessable or payable in, and no withholding or deduction
for any taxes, duties, assessments or governmental charges of whatever
nature is imposed or made for or on account of any income,
registration, transfer or turnover taxes, customs or other duties or
taxes of any kind, levied, collected, withheld or assessed by or
within, the Commonwealth of Australia or any sub-division of or
authority therein or thereof having power to tax in such jurisdiction,
in connection with the authorization, execution or delivery of the
agreements to which it is to be a party or with the authorization,
execution, issue, sale or delivery of the Notes and the performance of
either Xx.Xxxxxx Parties' obligations under the agreements to which it
is to be a party and the Notes.
(o) No event has occurred or circumstances arisen which, had the Notes
already been issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfillment of any other
requirement) constitute a Manager's Default (as defined in the
Prospectus).
(p) Since [DATE] there has been no material adverse change or any
development involving a prospective material adverse change in the
condition (financial or otherwise) of either of the Xx.Xxxxxx Parties;
and
(q) As of the Closing Date, Xx.Xxxxxx will have transferred to the
Issuer Trustee a valid equitable assignment of each related Housing
Loan offered for sale by it to the Issuer Trustee.
8
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 [PERCENTAGE]% of the principal amount of the Class A Notes
(which amount shall be net of the commissions payable to the Underwriters) the
respective principal amount of the Notes set forth opposite the names of the
Underwriters in Schedule A hereto.
The Issuer Trustee will deliver against payment of the purchase price
the Notes in the form of one or more permanent Global Notes in definitive form
(the "GLOBAL NOTES") deposited with the Note Trustee as custodian for The
Depository Trust Company (the "DTC") and registered in the name of Cede & Co.,
as nominee for DTC. Interests in any permanent Global Notes will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Notes shall be made by the Underwriters in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to X.X. Xxxxxx Securities Inc. ("JPMORGAN") drawn
to the order of the Currency Swap Provider at the office of Xxxxx, Brown, Xxxx &
Maw, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 not later than 10:00 A.M., New York
City time, on [CLOSING DATE], or at such other time not later than seven full
business days thereafter as JPMorgan and the Trust Manager determine, such time
being herein referred to as the "CLOSING DATE," against delivery to the Note
Trustee as custodian for DTC of the Global Notes representing all of the Notes.
The Global Notes will be made available for checking at the above office at
least 24 hours prior to the Closing Date.
4. Offering by Underwriters. The Xx.Xxxxxx Parties and the Issuer Trustee
understand that the several Underwriters propose to offer the Notes for sale to
the public as set forth in the Prospectus.
5. Certain Agreements of the Issuer Trustee and the Xx.Xxxxxx Parties.
I. The Xx.Xxxxxx Parties, jointly and severally, covenant and agree with each of
the several Underwriters as follows:
(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
9
Representative promptly of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Notes is required
to be delivered under the Securities Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the
Securities Act, the Trust Manager will promptly notify the
Representative of such event and will promptly prepare and file with
the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. Neither the Representative's consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, the Trust Manager will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the effective date of the
Registration Statement which will satisfy the provisions of Section
11(a) of the Securities Act.
(e) The Trust Manager will furnish to the Representative copies of 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 JPMorgan requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the effective time of the Registration
Statement. All other documents shall be so furnished as soon as
available. The Trust Manager will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Trust Manager will arrange for the qualification of the Notes
for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as JPMorgan designates and will
continue such qualifications in effect so long as required for the
distribution.
(g) So long as the Notes are outstanding, the Trust Manager will
furnish to the Representative (i) copies of each certificate, the
annual statements of compliance and the annual independent certified
public accountant's audit report on the financial statements furnished
to the Issuer Trustee or the Note Trustee pursuant
10
to the Basic Documents by first class mail as soon as practicable after
such statements and reports are furnished to the Issuer Trustee or the
Note Trustee, (ii) copies of each amendment to any of the Basic
Documents, (iii) on each Determination Date or as soon thereafter as
practicable, the Bond Factor as of the related Record Date shall be
available to the Representative on Bloomberg and Reuters, (iv) copies
of all reports or other communications (financial or other) furnished
to holders of the Notes, and copies of any reports and financial
statements furnished to or filed with the Commission, any governmental
or regulatory authority or any national securities exchange, and (v)
from time to time such other information concerning the Trust or the
Trust Manager as the Representative may reasonably request.
(h) To the extent, if any, that the ratings provided with respect to
the Notes by the Rating Agencies are conditional upon the furnishing of
documents or the taking of any other action by the Trust Manager, the
Trust Manager shall use its best efforts to furnish such documents and
take any other such action.
(i) The Trust Manager will assist the Representative in making
arrangements with DTC, Euroclear and Clearstream, Luxembourg concerning
the issue of the Notes and related matters.
(j) The Trust Manager will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Notes not being assigned the
ratings referred to in Section 6(n) below.
(k) Xx.Xxxxxx will pay all expenses incident to the performance of the
Xx.Xxxxxx Parties' obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of
underwriters' counsel and issuers' counsel) incurred in connection with
qualification of the Notes for sale under the laws of such
jurisdictions as JPMorgan designates and the printing of memoranda
relating thereto, for any fees charged by the independent accountants,
for any fees charged by the rating agencies for the rating of the
Notes, for any travel expenses of any of the Xx.Xxxxxx Parties'
officers and employees and any other expenses of either Xx.Xxxxxx Party
in connection with attending or hosting meetings with prospective
purchasers of the Notes and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments
and supplements thereto) to the Underwriters.
(l) Xx.Xxxxxx Bank will indemnify and hold harmless the Underwriters
against any documentary, stamp or similar issue tax, including any
interest and penalties, on the creation, issue and sale of the Notes
and on the execution and delivery of this Agreement. All payments to be
made by the Issuer Trustee and the Xx.Xxxxxx Parties hereunder shall 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
11
such taxes, duties or charges. In that event, the Trust Manager shall
pay such additional amounts as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction
had been made.
(m) Neither Xx.Xxxxxx Party will offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Securities Act relating
to asset-backed securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Representative for a period beginning at the
date of this Agreement and ending at the later of the Closing Date or
the lifting of trading restrictions by the Representative.
II. The Issuer Trustee covenants and agrees with each of the several
Underwriters as follows:
(a) The Issuer Trustee will use the net proceeds received by the Issuer
Trustee from the sale of the Notes pursuant to this Agreement in the
manner specified in the Prospectus under the caption "Use of Proceeds".
(b) The Issuer Trustee will pay any stamp duty or other issue,
transaction, value added or similar tax, fee or duty (including court
fees) in relation to the execution of, or any transaction carried out
pursuant to, the Basic Documents or in connection with the issue and
distribution of the Notes or the enforcement or delivery of this
Agreement.
(c) The Issuer Trustee will use all reasonable efforts to procure
satisfaction on or before the Closing Date of the conditions referred
to in Section 6 below and, in particular (i) the Issuer Trustee shall
execute those of the Basic Documents required to be executed by the
Issuer Trustee not executed on the date hereof on or before the Closing
Date, and (ii) the Issuer Trustee will assist the Representative to
make arrangements with DTC, Euroclear and Clearstream, Luxembourg
concerning the issue of the Notes and related matters.
(d) The Issuer Trustee will procure or cause to be procured that the
charges created by or contained in the Security Trust Deed are
registered within all applicable time limits in all appropriate
registers.
(e) The Issuer Trustee will perform all its obligations under, and
subject to, each of the Basic Documents to which it is a party which
are required to be performed prior to or simultaneously with closing on
the Closing Date.
(f) The Issuer Trustee will not take, or cause to be taken, any action
and will not knowingly permit any action to be taken which it knows or
has reason to believe would result in the Notes not being assigned the
ratings referred to in Section 6(n) below.
12
(g) The Issuer Trustee will not prior to or on the Closing Date amend
the terms of any Basic Document to which it is a party nor execute any
of the Basic Documents to which it is a party other than in the agreed
form without the consent of the Representative.
6. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes on the Closing Date will
be subject to the accuracy of the representations and warranties on the part of
the Xx.Xxxxxx Parties and the Issuer Trustee herein, to the accuracy of the
statements of officers of the Xx.Xxxxxx Parties and the Issuer Trustee made
pursuant to the provisions hereof, to the performance of the Xx.Xxxxxx Parties
and the Issuer Trustee of their obligations hereunder and to the following
additional conditions precedent:
(a) The Registration Statement shall have become effective, or if a
post-effective amendment is required to be filed under the Securities
Act, such post-effective amendment shall have become effective, not
later than 5:00 P.M., New York City time, on the date hereof or on such
later date to which you have consented; and no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment shall be in effect, and no proceedings for such purpose shall
be pending before or threatened by the Commission. The Prospectus,
including all price-related information previously omitted from the
prospectus which formed a part of the Registration Statement at the
time it became effective, in accordance with Rule 430A, shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the rules and
regulations under the Securities Act and in accordance with Section
5.1.(a) hereof; and prior to the Closing Date the Trust Manager shall
have provided evidence satisfactory to the Representative of such
timely filing, and all requests for additional information shall have
been complied with to the satisfaction of the Representative.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of any of the Xx.Xxxxxx
Parties, the Issuer Trustee or any Swap Party and their respective
subsidiaries, in each case, taken as one enterprise, which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Notes; (ii) any downgrading in the rating
of any debt securities of any of the Trust Manager, Xx.Xxxxxx, the
Issuer Trustee or any Swap Party by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act), or any public announcement that any
such organization has under surveillance or review its rating of the
Notes or any debt securities of any of the Trust Manager, Xx.Xxxxxx,
the Issuer Trustee or any Swap Party (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any material
13
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,
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 (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
14
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 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) Mayer, Brown, Xxxx & Maw, United States counsel for the Xx.Xxxxxx
Parties and the Issuer Trustee, shall have furnished to the
Representative their written opinion, dated the Closing Date, in form
and substance satisfactory to the Representative, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters, to the effect that:
(1) The Note Trust Deed has been duly qualified under the
Trust Indenture Act;
(2) To such counsel's knowledge, there are no material
contracts, indentures, or other documents of a character
required to be described or referred to under either the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto;
(3) The Trust is not and, after giving effect to the offering
and sale of the Notes and the application of the proceeds
thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act
of 1940;
(4) No consent, approval, authorization or order of, or filing
with, any governmental agency located in the United States or
body or any court located in the United States is required for
the consummation of the transactions contemplated by this
Agreement in connection with the
15
issuance or sale of the Notes by the Issuer Trustee, except
such as have been obtained and made under the Securities Act
and the Trust Indenture Act and such as may be required under
state securities laws;
(5) The Registration Statement was filed and was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Prospectus either was filed
with the Commission pursuant to subparagraph (4) of Rule
424(b) on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Securities Act, and 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 are
accurate and fairly present the information required to be
shown: it being understood that such counsel need express no
opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus;
(6) The statements in the Prospectus under the Captions
"Description of the Class A Notes" and "Description of the
Transaction Documents", insofar as they purport to summarize
certain terms of the Notes and the applicable Basic Documents,
constitute a fair summary of the provisions purported to be
summarized; and
(7) This Agreement represents a legal valid and binding
obligation of each of Xx.Xxxxxx, the Trust Manager and the
Issuer Trustee.
(h) Xxxxx, Xxxxx, Xxxx & Maw, United States federal income tax counsel
for the Xx.Xxxxxx Parties and the Issuer Trustee, shall have furnished
to the Representative their written opinion, dated the Closing Date, in
form and substance satisfactory to the Representative, a copy of which
opinion is attached hereto as Exhibit C.
16
(i) 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.
(j) White & Case LLP, counsel for the Note Trustee, shall have
furnished to the Representative their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representative,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters, a
copy of which is attached hereto as Exhibit E.
(k) Counsel to the 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.
(l) The Representative shall have received a letter or letters from
each counsel delivering any written opinion to any Rating Agency in
connection with the transaction described herein which is not otherwise
described in this Agreement allowing the Representative to rely on such
opinion as if it were addressed to the Representative.
(m) At the Closing Date, the Class A Notes shall have been rated "AAA"
by Standard & Poor's Ratings Group, A Division of The XxXxxx-Xxxx
Companies, Inc. ("Standard and Poors") and Fitch Ratings ("Fitch") and
"Aaa" by Xxxxx'x Investors Service, Inc. ("Xxxxx'x" and together with
Standard and Poor's and Fitch, the "Rating Agencies") as evidenced by
letters from the Rating Agencies.
(n) The execution and delivery by all parties thereto of the Basic
Documents on or prior to the Closing Date.
(o) On or prior to the Closing Date the Xx.Xxxxxx Parties and the
Issuer Trustee shall have furnished to the Representative such further
certificates and documents as the Representative shall reasonably
request.
7. Indemnification and Contribution.
(a) Each of Xx.Xxxxxx and the Trust Manager, jointly and severally,
agrees to indemnify and hold harmless each Underwriter and the Issuer
Trustee, its partners, directors and officers and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or the Issuer Trustee may
become
17
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any
untrue statement or alleged untrue statement of any material fact
contained in the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter or the Issuer Trustee
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that neither Xx.Xxxxxx nor the Trust Manager will be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information
furnished to Xx.Xxxxxx or the Trust Manager by (i) any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection
(b) below or (ii) JPMorgan for inclusion in the Prospectus under the
heading "Description of the Class A Notes--The Interest Rate
Swaps--Standby Swap Provider" and "Description of the Class A
Notes--The Currency Swap--JPMorgan Chase Bank"; and provided, further,
that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any preliminary prospectus the
indemnity agreement contained in this paragraph (a) shall not inure to
the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes concerned,
to the extent that a prospectus relating to such Notes was required to
be delivered by such Underwriter under the Securities Act in connection
with such purchase and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent or given
to such person, at or prior to the written confirmation of the sale of
such Notes to such person, a copy of the Prospectus if the Trust
Manager had previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless Xx.Xxxxxx, the Issuer Trustee and the Trust Manager, its
partners, its directors and officers and each person, if any, who
controls such company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities to
which such company may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement or arise out of or are based
upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or
18
alleged untrue statement of any material fact contained in the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Trust Manager by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by Xx.Xxxxxx, the Issuer Trustee or the
Trust Manager in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred,
it being understood and agreed that the only such information furnished
by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: (i) the concession
and reallowance figures appearing in the third paragraph under the
caption "Plan of Distribution" and (ii) the information contained in
the sixth and eighth paragraphs under the caption "Plan of
Distribution".
(c) Promptly after receipt by an indemnified party under this Section
(c) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be 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
19
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). In addition, nothing in this Section 7 shall require Xx.Xxxxxx to
indemnify and hold harmless JPMorgan 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 Class A Notes--The Interest Rate
Swaps--Standby Swap Provider" and "Description of the Class A
Notes--The Currency Swap--JPMorgan Chase Bank" 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.
(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
20
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 "Prudential Standard APS 120 Funds Management and
Securitisation" 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,
the Representative may make arrangements satisfactory to the Trust Manager for
the purchase of such Notes by other persons, including any of the Underwriters,
but if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Notes that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of Notes with respect
to which such default or defaults occur exceeds 10% of the total principal
amount of Notes that the Underwriters are obligated to purchase on such Closing
Date and arrangements satisfactory to the Representative and the Trust Manager
for the purchase of such Notes by other persons are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Trust Manager, except as provided in
Section 9. As used in this Agreement, the term "UNDERWRITER" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Xx.Xxxxxx Parties, the Issuer Trustee or their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the Xx.Xxxxxx
Parties, the Issuer Trustee or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Notes. If this Agreement is terminated pursuant to Section 8 or if for
any reason the purchase of the Notes by the Underwriters is not consummated, the
Xx.Xxxxxx Parties, jointly and severally, shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Xx.Xxxxxx Parties, the Issuer Trustee and the Underwriters
pursuant to Section 7 shall remain in effect, and if any Notes have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Notes by the Underwriters is not consummated for any reason other
21
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(b), the Xx.Xxxxxx Parties, jointly and severally, will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Notes.
10. Selling Restrictions.
(a) No offering circular, prospectus or other disclosure document in relation to
any Notes has been lodged with the Australian Securities and Investments
Commission or the Australian Stock Exchange Limited. Each Underwriter severally
(but not jointly) represents and agrees that it:
(1) has not, directly or indirectly, offered for issue or sale or
invited applications for the issue of or for offers to purchase nor has
it sold, the Notes;
(2) will not, directly or indirectly, offer for issue or sale or
invited applications for the issue of or for offers to purchase nor
will it sell the Notes; and
(3) has not distributed and will not distribute any draft, preliminary
or definitive offering circular, or any advertisement or other offering
material,
in the Commonwealth of Australia, its territories or possessions ("AUSTRALIA")
or to any person who is actually known by the Underwriter (without an obligation
on the Underwriter to make any inquiry) to be resident of Australia for the
purposes of Section 128F of the Income Tax Assessment Act unless:
(1) the amount payable for the Class A Notes on acceptance of the offer
by each offeree or invitee is a minimum amount of A$500,000 (or its
equivalent in another currency) (disregarding amounts, if any, lent by
Crusade Management Pty Limited or other person offering the Notes or
any associate of them) or the offer or invitation is otherwise an offer
or invitation for which no disclosure is required to be made under Part
6D.2 of the Corporations Act as then in effect and the Corporations
Regulations made under the Corporations Act as then in effect;
(2) the offer, invitation or distribution complies with all applicable
laws, regulations and directives in relation to the offer, invitation
or distribution and does not require any document to be lodged with the
Australian Securities and Investments Commission; and
(3) the Class A Notes will not be acquired by an associate of Crusade
Management Pty Limited (which includes associates of the Issuer Trustee
and Xx.Xxxxxx Bank) within the meaning of section 128F of the Income
22
Tax Assessment Act (other than in the capacity of a dealer, manager or
underwriter in relation to a placement of the Class A Notes) as
identified on a list provided by Xx.Xxxxxx Bank (the "LIST").
(b) Each Underwriter severally (but not jointly) agrees that, in connection
with the primary distribution of the Notes, it will not sell any Notes to any
person if, at the time of such sale, the employees of the Underwriter aware of,
or involved in, the sale knows, or has reasonable grounds to suspect that, as a
result of such sale, such Notes or any interest in such Notes were being, or
would later be acquired (directly or indirectly) by an associate of the Issuer
Trustee and Crusade Management Pty Limited for the purposes of section 128F of
the Income Tax Assessment Act.
(c) Each Underwriter agrees that it must offer the Notes for which it
subscribes for sale within 30 days of the issue of those Notes. Such offer must
only be by one of the following means (or a combination thereof);
(1) as a result of negotiations being initiated by the underwriter in
electronic form on Reuters or the electronic information system made
available to its subscribers by Bloomberg, L.P., specifying in such
offer the name of the issuer and the price at which the Notes are
offered for sale; or
(2) by the Underwriter offering those Notes for sale to at least 10
persons, each of whom must be (i) carrying on a business of providing
finance, or investing or dealing in securities, in the course of
operating in the financial markets; and (ii) not known to be an
associate of any of the others (within the meaning of section 128F of
the Income Tax Assessment Act).
Each Underwriter will provide the Issuer Trustee (within five Business Days of
the offer of such Notes by it) a written statement which sets out the details of
the relevant offer.
Each Underwriter (severally, not jointly) agrees to co-operate with reasonable
requests from the Issuer Trustee for information for the purposes of assisting
the Issuer Trustee to demonstrate that the public offer test under section 128F
of the Tax Act has been satisfied, provided that no Underwriter shall be obliged
to disclose the identity of the purchaser of any Note or any information from
which such identity might/would be capable of being ascertained, or any
information the disclosure of which would be contrary to or prohibited by any
relevant law, regulation or directive.
(a) Each Underwriter (severally and not jointly) acknowledges that no
representation is made by the Issuer Trustee or any Xx.Xxxxxx Party that any
action has been or will be taken in any jurisdiction outside the United States
by the Issuer Trustee or any Underwriter that would permit a public offering of
the Notes, or possession or distribution of the Prospectus or any other offering
material, in any country or jurisdiction where action for that purpose is
required. Each Underwriter (severally and not jointly) will comply with all
applicable securities laws and regulations in each jurisdiction in
23
which it purchases, offers, sells or delivers Notes or has in its possession or
distributes the Prospectus or any other offering material, in all cases at its
own expense.
(b) Each Underwriter (severally and not jointly) agrees that:
(i) it has only offered or sold and will only offer or sell any Notes
in or from the United Kingdom: (a) to persons (1) whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses; or (ii) to persons who it is reasonable to expect will
acquire, hold, manage or dispose of investments (as principal or
agent) for the purposes of their business except in circumstances that
do not constitute an offer to the public under the Public Offers of
Securities Regulations 1995 (as amended);
(ii) it has complied and will comply with all applicable provisions of
the Financial Services and Markets Act 2000 with respect to anything
done by it in relation to the Class A Notes in, from or otherwise
involving the United Kingdom; and
(iii) in connection with the Class A Notes, it has only issued or
passed on and will only issue or pass on in the United Kingdom the
Class A Notes or any document received by it in connection with the
issue of the Class A Notes in circumstances where the document may
lawfully be issued or passed on including, without limitation, to a
person exempted as an investment professional under Article 19 or to a
high net worth person under Article 49 of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2001, as amended, in each
case it has complied with and will comply with all the relevant
conditions contained in such Articles 19 and 49.
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 Trust Deed) or a
liquidator, an administrator or any other similar
24
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 Providers, the Redraw Facility
Provider, the Swap Providers, the Standby 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 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 CT Corporation,
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
in the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service of process upon
such agent, and written notice of said service to it by the person serving the
same to the address provided in Section 16, shall be deemed in every respect
effective service of process upon it in any such suit or proceeding. Each of the
Xx.Xxxxxx Parties and the Issuer Trustee further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for so long as the Notes remain outstanding.
The obligation of any of the Xx.Xxxxxx Parties or the Issuer Trustee in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in
a currency other than United States dollars, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States
25
dollars so purchased are less than the sum originally due to such Underwriter
hereunder, each of the Xx.Xxxxxx Parties and the Issuer Trustee agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss.
13. Foreign Taxes. All payments to be made by the Issuer Trustee and any
Xx.Xxxxxx Party hereunder shall be made without withholding or deduction for or
on account of any present or future taxes, duties or governmental charges
whatsoever unless the Issuer Trustee or such Xx.Xxxxxx Party, as applicable, is
compelled by law to deduct or withhold such taxes, duties or charges. In that
event, the Issuer Trustee or such Xx.Xxxxxx Party, as applicable, shall pay such
additional amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
14. Waiver of Immunities. To the extent that any of the Issuer Trustee and
Xx.Xxxxxx Parties or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or 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.
26
16. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representative at 000 Xxxx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxxx Xxxxxx; if sent to the Trust Manager will be mailed, delivered or
telegraphed and confirmed to the Trust Manager at c/o Company Secretary, level
0, 0-00 Xxxxxxxxxx Xxxxxx, Xxxxxxx XXX 0000 (Facsimile No. 612 9236 1899),
Attention: Manager Securitisation; if sent to the Issuer Trustee, mailed,
delivered or telegraphed and confirmed to the Issuer Trustee at Level 0, 00
Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 (Facsimile No. 612-9221-7870),
Attention: Manager, Securitisation; and if sent to Xx.Xxxxxx, mailed, delivered
or telegraphed and confirmed to Xx.Xxxxxx at 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.
27
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return the enclosed counterparts
hereof, whereupon it will become a binding agreement between the parties listed
below in accordance with its terms.
Very truly yours,
CRUSADE MANAGEMENT LIMITED
By:
----------------------------
Name:
Title:
PERPETUAL TRUSTEES
CONSOLIDATED LIMITED
By:
----------------------------
Name:
Title:
XX.XXXXXX BANK LIMITED
By:
----------------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the day
first above written
X.X. XXXXXX SECURITIES INC.
By:
---------------------------------------------
Name:
Title:
Acting on behalf
of itself as the Representative of
the several Underwriters
SCHEDULE A
----------
Underwriter PRINCIPAL AMOUNT OF CLASS A
----------- NOTES TO BE PURCHASED
---------------------------
X.X. Xxxxxx Securities Inc.
Barclays Capital Inc.
Credit Suisse First Boston Corporation
Deutsche Banc Xxxx. Xxxxx Inc.
--------------
Total................................. $
CRUSADE GLOBAL TRUST NO 1 OF 2002
Certificate pursuant to section 6(c) of the Underwriting Agreement
Date: [CLOSING DATE]
X.X. Xxxxxx Securities Inc.
As Representative of the Underwriters
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
I hereby certify that, to the best of my knowledge after reasonable
investigation:
(i) the representations and warranties of Perpetual Trustees Consolidated
Limited, in its capacity as trustee of the Crusade Global Trust No 1 of
2002 (the "Issuer Trustee"), in the Underwriting Agreement dated [DATE]
among X.X. Xxxxxx Securities Inc., as representative ("Representative")
of the Underwriters listed in Schedule A to that agreement (the
"Underwriters"), Crusade Management Limited, the Issuer Trustee and
Xx.Xxxxxx Bank Limited (the "Underwriting Agreement") are true and
correct; and
(ii) the Issuer Trustee has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under the
Underwriting Agreement.
By:
----------------------------
Name:
Title:
